MZWUJ & Anor v Minister for Immigration [2005] FMCA 1368

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

This judgment arises from an application filed by the applicants on

15 December 2004 seeking judicial review of the decision of the Refugee Review Tribunal on 30 May 2003 to affirm the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs to refuse to grant protection visas.

The first-named applicant is a male citizen of Sri Lanka. He came to Australia with his daughter on 5 May 2001 and lodged an application for protection visas for himself and his daughter (the second-named applicant) with the Department of Immigration & Multicultural & Indigenous Affairs on 15 March 2001. Pursuant to the provisions for the issue of a protection visa in respect to applicants who are of the same family unit, it is enough if one family member is a person to whom Australia has protection obligations. Only the first-named applicant made specific claims under the Refugees Convention and for that reason the Refugee Review Tribunal ("the Tribunal") has referred to his claims alone in its decision and he is referred to as "the applicant" hereinafter.

The applicant claimed that he can not return to Sri Lanka as he fears violence and persecution by reason of his close affiliation with, and public support for, the United National Party ("UNP"). The applicant is of Sinhalese Buddhist ethnicity and managed his own business in Colombo from 1970 until he left for Australia in 2001. The applicant claimed that political violence began to be a problem for him in around 1988/1989, and that he was attacked and beaten by thugs associated with the People's Alliance party ("PA") a few days before the general elections in Sri Lanka in December 1999 after engaging in door to door political campaigning. The applicant claims that he suffered critical injuries and was forced to stay at his sister's house to recuperate, rather than attend hospital, because he heard that PA thugs were searching for him to eliminate him as his family was very influential. In October 2000 the applicant again engaged in political campaigning for the elections. He claimed that he was a target of a failed shooting at this time. The applicant did not report the October 2000 incident to the police ("as the police never entertain UNP complaints" [Court Book p.116]). The applicant claimed that his life was threatened again in May 2001 and that he was the target of anonymous phone calls and threats for years, including a threat to kidnap his daughter a few months before they left for Australia. The applicant fled to Australia with his daughter. The applicant claimed that the Sri Lankan government did not act against their supporters so he could not expect assistance or protection from the police or authorities.

On 1 November 2001, a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant the protection visas. The applicant applied for review of that decision by the Tribunal on 12 November 2001.

In the decision made by the Tribunal on 30 May 2003, the Tribunal affirmed the decision of the delegate not to grant the protection visas. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution. It therefore found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol), and as a consequence, neither was his daughter. Consequently the applicant did not satisfy the criterion under section 36(2) of the Migration Act 1958 (Cth) ("the Migration Act") for the purposes of a protection visa. Although the Tribunal accepted that the applicant and his family had a long-term association with the UNP, that he had contributed to their election campaigns as he had described, and that Sri Lanka had a violent political culture, the Tribunal found that:

a) the Sri Lankan authorities generally seek to pre-empt electoral violence;

b) although it accepted the applicant's claim that he was attacked in 1999, it did not accept that he could not report the incident to the police or attend hospital, and it was "satisfied that he obtained treatment at home because his injuries were not nearly as serious as he claimed" [CB 125];

c) it did not accept the applicant's claim that he had been shot at deliberately, or had been the target of murder attempts or that his family had been threatened;

d) the remote chance that the applicant would be targeted for violence by PA supporters was made even more remote by the fact that the UNP was returned to government in December 2001;

e) the applicant's fears of harm were not fears of persecution for Convention reasons;

f) the applicant could minimise future risk of violence in Sri Lanka "by avoiding situations where violence is likely to break out, such as attending rallies, where the risk of street clashes is highest, or canvassing votes door to door with UNP colleagues" [CB 126]; and

g) the applicant could obtain state protection in the future.

On 15 December 2004, the applicant lodged an application in this Court, being MLG 1623 of 2004, pursuant to section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal's decision. The applicant claimed that the Tribunal's decision was affected by jurisdictional error and should therefore be returned to a reconstituted Tribunal for consideration. Registrar Mussett made procedural orders on 25 January 2005 and set the matter down for trial. The applicant filed an amended application and contentions of fact and law on

30 March 2005. Summarily, the applicant contended that:

a) the Tribunal erred in its finding that the applicant was not shot at;

b) the applicant was not an ordinary supporter of the UNP, but one of an elevated profile;

c) the Tribunal's finding that Sri Lanka had a violent political culture supported his claim that he was the victim of the violence he had described; and

d) the applicant should not be denied his rights as a Sri Lankan citizen to be politically active and attend political rallies, etc, as suggested by the Tribunal would be appropriate to avoid future violence.

The respondent's contentions of fact and law, which were filed on

4 May 2005, rebutted the applicant's contentions. The respondent argued that the application should be dismissed with costs on one or more of the following grounds:

a) the applicant was seeking a review of the Tribunal's findings of fact, which were not reviewable;

b) the applicant had not identified a reviewable error;

c) the application was an abuse of process, as the applicant had previously filed an application for review which was dismissed for non-appearance and because the present application was manifestly groundless;

d) the application was out of time as it was not filed within 28 days of the notification of the Tribunal's decision; and

e) there had been a lengthy delay between the Tribunal's decision and the filing of the present application.

Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:

...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The term "well-founded fear of persecution" is affected by the provisions of section 91R of the Migration Act which provides as follows:

(1)

For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)

that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)

the persecution involves serious harm to the person; and

(c)

the persecution involves systematic and discriminatory conduct.

(2)

Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)

a threat to the person's life or liberty;

(b)

significant physical harassment of the person;

(c)

significant physical ill-treatment of the person;

(d)

significant economic hardship that threatens the person's capacity to subsist;

(e)

denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f)

denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.

An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal's power (Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323).

The respondent submitted that in the main the applicant's contentions were based on merits review of the Tribunal's findings of fact. It is clear that process does not support an error of law let alone a jurisdictional error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.

The Tribunal found, at CB 125:

The Tribunal does not accept that he was shot at on two occasions and that his family was threatened with death. The alleged shootings are inconsistent with his role as an ordinary supporter of the UNP who canvassed for votes during election campaigns. They are inconsistent with a history of political participation that involved a single isolated incident of violence. It does not accept that he was the target of two murder attempts because his [sic] is a supporter of the UNP, nor does it accept that he would not report those murder attempts, and nor does it accept that he would leave his wife and son in Sri Lanka to fend for themselves in face of threats to their security.

The issue of whether the applicant was shot at and was or was not an ordinary supporter of the UNP but one of an elevated profile were clearly matters of fact for the Tribunal and were based on findings of credibility.

Further the Tribunal determined, at CB 126:

In the circumstances of the immediate matter, and in light of the above judgments, the Tribunal finds that the Applicant's fears of harm in the context of the generalised electoral violence that accompanies political campaigning in Sri Lanka, are not fears of persecution for Convention reasons. In addition, he can minimise the already remote likelihood of being assaulted in the future by avoiding situations where violence is likely to break out, such as attending rallies, where the risk of street clashes is highest, or canvassing votes door to door with UNP colleagues. That is not such a restriction on his right to participate in democratic processes that it amounts to persecution.

Taking into consideration the available evidence, the Tribunal is not be [sic] satisfied that there is a real chance the Applicant faces persecution in the reasonably foreseeable future for the reasons he described, or for any other Convention reasons. If he remains concerned, it is satisfied that the Sri Lankan state is willing and able to protect him. The Tribunal is not satisfied that he has a well-founded fear of persecution for Convention reasons and finds he is a not [sic] person to whom Australia has protection obligations under the Refugees Convention and Protocol. It concludes that he does not meet that criterion for the purposes of granting a protection visa. It also concludes that his daughter, as a member of his family unit, does not meet that criterion for the purposes of granting a protection visa.

Again, both of these findings are factual findings that are not reviewable.

Further, the Tribunal did not, as asserted by the applicant, require the applicant to cease his political activities in order to avoid harm. The relevant comments were in the context of a finding about 'generalised' violence that springs up at election times. The Tribunal said that the applicant could minimise the already "remote" risk of harm by avoiding violent hot spots such as political rallies. "The fact that political parties engage in violence from time to time does not mean that there is persecution within the meaning of the Convention": per Kenny J, Rodrigo v Minister for Immigration & Multicultural Affairs [2001] FCA 1027 (1 August 2001). I am satisfied that the applicant has not identified any reviewable error and accordingly this submission must fail.

In addition, the respondent submitted that this proceeding amounts to an abuse of process, in that the applicant was seeking to re-litigate the same issues that were dismissed by Merkel J in the Federal Court of Australia on 2 July 2004. Although there was no evidence before me of the earlier application, the applicant admitted it and its dismissal by Merkel J, although it appears that it was dismissed for non-appearance rather than on the merits. In my view what should have happened is that the applicant should have sought to reinstate that application instead of commencing further proceedings. This in itself amounts to an abuse of process. See MZWHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 201 at [13] per McInnis FM.

Finally the delay between the date of the Tribunal's decision, being 30 May 2003 (posted to the applicant on 20 June 2003), and the filing of this application on 15 December 2004 is excessively lengthy and has not been explained, and that in itself would be sufficient for me to decline to exercise my discretion in the applicant's favour.

For all of these reasons, the application for both the first and second-named applicants should be dismissed with costs and I order accordingly.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Connolly FM