MZXCV & Ors v Minister for Immigration and Multicultural Affairs & Anor

REASONS FOR JUDGMENT 1 This is an appeal against orders made by a Federal Magistrate on 23 February 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 12 August 2005. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration & Multicultural and Indigenous Affairs (now the Minister for Immigration & Multicultural Affairs) to refuse to grant a protection visa to the appellants.

Circumstances in which the appeal is made 2 The appellants are citizens of Sri Lanka. Only the first appellant ("the appellant") made claims. The other appellants rely on membership of the appellant's family. Before the Tribunal the appellant claimed to have a well-founded fear of persecution from members of the political party, People's Alliance ("PA"), due to his involvement with the major opposing party, United National Party ("UNP"). The appellant provided the UNP with limited assistance during the 2002 and 2004 elections. His involvement was restricted to handing out pamphlets, hanging flags, attending meetings and rallies, and participating in fundraising activities. The appellant alleged that on the night of the 2004 elections his house was stoned and surrounded by armed people. The appellants were also threatened by telephone and on one occasion the wife was threatened at gunpoint. The appellant also alleged that he was physically attacked outside his home shortly after the 2004 elections. 3 The Federal Magistrate established that the major criticism of the appellant was the reasoning of the Tribunal. The Federal Magistrate found the decision of the Tribunal was based on findings of fact. The Tribunal accepted that the appellant was a member of the UNP and provided assistance to the party during the elections. But it did not accept the claim that he was harmed. Whilst the Tribunal accepted certain claims such as the appellant's involvement in the UNP, it did not find that the level of his involvement was such that it resulted in, or would in the future result in, a risk of harm. The Tribunal considered each claim separately and cumulatively, finding that the appellant faced no real chance of persecution. 4 The appellant submitted that harm to a UNP branch organiser and the death of a journalist shortly before the Tribunal hearing was not taken into account by the Tribunal. The appellant also contended before the Federal Magistrate that he had been denied natural justice because the Tribunal had failed to notify him of certain country information referred to in its reasons, being a United Kingdom Home Office report and a European Union report. The Federal Magistrate found that the information was of the same nature as that which had been dealt with by the appellant in both his visa application and his evidence before the Tribunal. 5 The Federal Magistrate also referred to the findings of the Tribunal that there was adequate police protection available to the appellant and that even a change of political power would not result in the police shifting allegiance so that they would refuse to entertain complaints from citizens involved in political issues. The Federal Magistrate concluded that there was no jurisdictional error in the decision of the Tribunal. 6 The appellant filed a notice of appeal on 15 March 2006. The appellant claimed the decision of the Tribunal was made without jurisdiction or was affected by an error of jurisdiction due to the Tribunal failing to take into account relevant material. THE DECISION OF THE TRIBUNAL 7 On 12 August 2005 the Tribunal handed down its decision affirming the delegate's decision. The Tribunal found that there was not a real chance that the appellant would be persecuted for his political opinion and that the appellant therefore did not have a well-founded fear of persecution for a Refugees Convention reason. 8 The Tribunal accepted that the appellant was a member of the UNP and had provided some assistance during the elections in December 2002 and April 2004. Nevertheless the Tribunal was not satisfied that the appellant's involvement with the UNP was of such significance that it would attract future persecution. The Tribunal did not accept that the appellant's position within the party was such that he would have been targeted or would be targeted in the future. While it was accepted that the appellant received threats and was harassed after the December 2002 elections, the Tribunal found this did not amount to serious harm. 9 Further, the Tribunal was not satisfied that the appellant had ever been harmed as a result of providing assistance in the April 2004 elections. The Tribunal did not accept that the appellant received telephone threats in December 2003 or that he had moved house in January 2004, which he submitted before the Tribunal at the hearing but had not previously raised in his written submissions. The Tribunal noted that the appellant remained in Sri Lanka for three months after he was granted a visa to travel to Australia and that this delay did not demonstrate a fear of harm. 10 The Tribunal accepted that an organiser for the same UNP branch as the one to which the appellant belonged was abducted and harmed some time between the elections, that is 2 April 2004, and 30 April 2004, but found that the appellant's situation was quite dissimilar to that of a party organiser. The Tribunal also accepted that a journalist was killed for apparently political motives two weeks before the Tribunal hearing. The Tribunal accepted that acts of violence are perpetrated in Sri Lanka and that elections there are sometimes violent affairs. However, the Tribunal referred to country information to the effect that the 2004 elections were generally free and fair and conducted in a democratic manner, apart from areas in the north and the east and some LTTE ("Liberation Tigers of Tamil Eelam") motivated violence. This country information indicated a greatly diminished incidence of violence in the 2004 elections. 11 Finally, the Tribunal accepted that the police are often influenced by local politicians but found that this did not mean that the appellant did not have state protection in Sri Lanka. The Tribunal did not accept that the political influence of the PA would have changed the attitude and the allegiance of the police within a short time after the elections so that they would refuse to entertain complaints from the citizens. DECISION OF THE FEDERAL MAGISTRATES COURT 12 The Federal Magistrate concluded that there had been no jurisdictional error or breach of natural justice by the Tribunal. Paragraphs 14 to 19 of the Federal Magistrate's reasons are as follows: 14. The tribunal's decision is based on findings of fact. It did not accept that the specific events of harm at the time of the 2004 election claimed by the applicants happened; that is, people coming to the house, threats being made, and physical assault. It accepted that the applicant was a member of the United National Party, and that he was involved in its campaigning in the way he described. It accepted that a local organiser may have been seriously harmed and accepted that acts of violence occur in Sri Lanka, and that elections are sometimes violent affairs. But what it found as part of its fact-finding exercise was that the level of involvement it accepted did not place the husband and his family at risk of harm. 15. In the submissions today, the applicant has referred to the harm to the party organiser and the death of the journalist. It seems to be a submission that the tribunal did not take these into account. The tribunal did take them into account. It may be that behind the particulars of error alleged is a claim that the tribunal did not ask itself the question what if its finding is wrong, so that there might be a risk of harm. That cannot be the case here. The tribunal has made definite findings of fact, and concluded from those findings that there was no risk of harm to the husband or his family if they returned to Sri Lanka. All of those findings were open to the tribunal. It has considered all the relevant aspects of the applicant's claim. 16. The natural justice point arises from country information referred to by the tribunal, United Kingdom Home Office report, and a European Union report. The applicant's contentions allege not being given notice of those matters, and says that if he was, he could have produced other material. 17. The tribunal used the reports as showing that there was violence associated with the 2002 and 2004 elections, less at the 2004 elections. The tribunal accepted that that violence occurred and in terms of specific incidents referred to by the applicant, it accepted the abduction and injury to the local organiser, and the death of a journalist. Consequently it was information the nature of which had been dealt with by the applicant in his written submission for a visa, and his evidence to the tribunal. 18. In terms of the evidence to the tribunal - this can be said despite there not being a transcript or tape before the court - it is clear from the decision that violence at the elections was part of the applicant's claim. In those circumstances there has been no breach of natural justice. 19. Finally the tribunal found that even if the applicant had been harmed as he claimed, there was adequate police protection. The tribunal specifically found that the change in political power and influence would not shift the allegiance of the police so that they would refuse to entertain complaints from citizens involved in political issues. There has been no jurisdictional error by the tribunal, and the application is dismissed.