MZXDI v Minister for Immigration and Citizenship

FEDERAL MAGISTRATES COURT 10 On 27 November 2006, the appellants applied to the Federal Magistrates Court for judicial review of the Tribunal's decision. In listing grounds for the application the appellants made several claims, the central issue being whether the Tribunal had correctly applied s 91R(1) of the Migration Act 1958 (Cth) in failing to determine that the appellant suffered persecution for one or more of the reasons referred to in the Refugees Convention. 11 In dismissing the application for review, the Federal Magistrate determined that the Tribunal had properly considered whether there was a sufficient nexus between the alleged attacks and the appellant's actual or imputed political opinion, and agreed the acts were criminally, as opposed to politically, motivated. 12 His Honour found that the decision of the Tribunal was based on evidence which suggested that any persecution suffered by the appellant was not for a reason stipulated within the Refugees Convention. His Honour found this conclusion to be reasonably open to the Tribunal on the evidence before it, and further challenges to the Tribunal's reasoning was dismissed as challenging the fact-finding process of the Tribunal.

APPEAL TO THIS COURT 13 On 31 July 2007, the appellants filed a notice of appeal in this Court, which amended the previous notice dated 30 July 2007. In the amended notice, the appellants made the following two claims: 1. The Federal Magistrate erred in deciding that the Tribunal had not fallen into jurisdictional error in failing to determine, in accordance with the applicable legal principles expounded by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 that the appellants had a well-founded fear of persecution that was not fanciful or remote; and 2. The Federal Magistrate erred in deciding that the Tribunal had properly taken into account the appellant's post-hearing submissions and evidence adduced in support thereof. 14 The essence of the appellants' claims for a protection visa could be summarised, as was done in the submissions of the appellants, as follows: (a) the appellant was a supporter of the UNP and the SLMC; (b) he was a wealthy businessman from a well-known family in Colombo who was involved in running a profitable travel agency as well as a jewellery and gem-trading business; (c) as a businessman from a well-known family in Colombo, the appellant's political and philanthropic activities attracted attention to him locally and from political adversaries; (d) the appellant was subjected to extortion, threats to his life and kidnapping by Mr X, a convicted criminal, who has been sentenced to death for the murder of a judge and a politician; and (e) the appellant claimed he was targeted by Mr X because Mr X was in league with the appellant's political opponents who wanted to eliminate the appellant. 15 It is clear that the Tribunal accepted, as the submissions of the appellant made clear: (a) the appellant had been politically active in Sri Lanka on behalf of the SLMC and the UNP; (b) the appellant was a businessman who was involved in running a profitable travel agency in Colombo, as well as a jewellery and gem-trading business; (c) the appellant was subject to extortion, threats to his life, and kidnapping by Mr X. Mr X had influence over senior policemen and used that influence to intimidate the applicant, in particular by telephoning senior police on the telephone in the appellant's presence; (d) politics in Sri Lanka was characterised by violence perpetuated by all parties on the political scene, especially at election times; and (e) corruption was prevalent in political, judicial, police and government circles. 16 Nevertheless, the Tribunal affirmed the primary decision on 25 October 2006, finding that the appellant did not have a well-founded fear of persecution because it was not satisfied that Mr X could perpetrate any further harm to him from prison, and that Mr X's actions were motivated for monetary gain and had no political motive. 17 The appellant puts his first argument in relation to the error made by the Federal Magistrate and the Tribunal as follows: The essence of the appellant's challenge to the decision of the [Federal Magistrate] is that his Honour erred in deciding … that the tribunal had not fallen into jurisdictional error in assessing the appellant's risk of persecution against a standard that did not accord with the principles enunciated by the High Court in Chan v MIEA (1989) 169 CLR 379. 18 It was submitted that the Tribunal accepted the appellant had a well-founded fear of serious harm when he left Sri Lanka. It then had to be satisfied that the harm was for a Convention reason and that there was a real chance that it would recur or continue were the appellant to return to Sri Lanka. 19 It was contended that the Tribunal fell into error as it appeared to equate 'political motivation' with the personal views held by the perpetuator of the serious harm, whereas the appellant's claim was that Mr X himself was not politically motivated but was a thug for hire by the appellant's political opponents who had a political motivation in having the appellant eliminated from political life in Sri Lanka either by intimidating him into withdrawing or by assassinating him. It was contended that the Tribunal misconstrued an essential aspect of the Refugees Convention in requiring the perpetrator to have a political motivation. It was well-established, it was contended, that persecution can be perpetuated by State and non-State agents. 20 The appellant contended that it had provided evidence to the Tribunal that supported his claims that: (a) Mr X was still exerting an influence, despite his imprisonment; (b) organised crime had close links with Sri Lankan politicians; and (c) Sri Lankan politicians used criminals to intimidate and eliminate political opponents. 21 It was submitted that his Honour and the Tribunal overlooked the appellant's claim in relation to the threats and extortion against family members who remained in Sri Lanka and were still involved in business activities. It was said to be no answer to this claim that the threat ceased because Mr X was in jail, in light of the evidence presented to the Tribunal about Mr X's continued influence and submissions made to the Tribunal concerning the ability of the leaders of organised crime to continue directing major criminal activities while in jail, even in Australia. 22 It was then submitted that his Honour erred in deciding the Tribunal did not misapply the 'real chance' test and in deciding that the Tribunal did not impose an impermissible burden of proof on the appellant by requiring corroboration of his claims in order to be satisfied that he had a well-founded fear of persecution for a Convention reason. It was said that the Tribunal cannot impose a burden of proof on the applicant in the absence of express statutory authority to do so, and reference was made to the Tribunal being an inquisitional Tribunal where neither an applicant nor the first respondent bears an onus of proof. 23 I accept that if it is demonstrated, as contended, that the Tribunal approached its statutory task on an incorrect basis such as misunderstanding the real chance test or applying an inappropriate burden of proof, there is jurisdictional error: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 and Ejueyitsi v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 289. Similarly, if the Tribunal failed to consider relevant evidence and claims: see A Goninan & Co Ltd v Commissioner of Patents (1997) 75 FCR 200 at 211; SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80 and Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244. 24 The real issue here is to determine what the Tribunal decided and whether it acted in the way contended by the appellants. The issue the Tribunal needed to resolve was the motivation of Mr X and his associates in targeting and extorting money from the appellant. It is clear that the connecting factor is the incidents relating to Mr X and his associates, it being accepted by the appellant before the Tribunal that he had not suffered any other harm in the past in Sri Lanka for any Convention related reason. Hence, of course, the way in which the case has always been put has been on the basis of the incidents involving Mr X, and it was thus necessary for the appellant to show Mr X's motivation. 25 The Tribunal, in my view, did properly identify and address the issue that was before it and did consider the post-hearing submissions. It referred to the post-hearing submission which it indicated it had read and considered prior to making its decision, in the following way: In a post hearing submission dated 21 August 2006, the applicant's barrister provided further arguments, country information and media reports in support of the applicant's claims. I have read and considered the submission and documents provided prior to making this decision. It was argued that the applicant was an active participant in political and community life in Sri Lanka and it should not be expected that he withdraw from such political and community life in order to safeguard his safety in Sri Lanka. The barrister claimed that media report indicated strong links between [Mr X] and members of the Sri Lanka police force, and that [Mr X] was a "thug for hire" that had been used by political opponents and if the applicant returned to Sri Lanka these same political opponents would use someone else to persecute him. The barrister referred to media reports linking drug dealers to police and politicians in Sri Lanka in support of the applicant's claims that [Mr X] had pursued him for his actual or imputed political opinion. 26 The Tribunal, after setting out, in my view accurately, the extent of the submission made in relation to Mr X being a 'thug for hire' that had been used by political opponents, the Tribunal then went on to consider the issue as follows: The issue that needs to be resolved is the motivation of [Mr X] and his associates in targeting the applicant and extorting money from him. The applicant's claims for protection centre around his assertion that [Mr X] and his associates targeted the applicant for extortion at the behest and instructions of the applicant's political opponents in the People's Alliance (PA) which is part of the current governing party in Sri Lanka. The applicant and his representatives have claimed over time that [Mr X] was a political "thug for hire" and that the applicant's political opponents used him to threaten the applicant, extort money from him to diminish his ability to contribute financially to his chosen political parties and to discourage him from any active participation in the political process in Sri Lanka. However as was pointed out to the applicant at the second Tribunal hearing, none of the extensive material provided by the applicant to the Tribunal indicates that [Mr X] was a political thug or a political "thug for hire" in any way. It is clear that [Mr X] was a notorious criminal and drug dealer who has been sentenced to death for ordering the killing of a judge. From the information provided by the applicant, it appears that [Mr X] did have control over some members of the police force who he had managed to corrupt but there is no indication whatsoever that he was involved in the political process, had intervened in politics or had ever worked for any political organisation. The applicant and his advisers have suggested that reported links between the underworld and political figures in Sri Lanka would point to [Mr X] being involved in the political process however as was pointed out to the applicant at the hearing, none of the information he provided makes any link between [Mr X] and political figures and the fact that the PA government had prosecuted [Mr X] so strongly and had ensured that he was convicted and sentenced to death would point strongly to the fact that he was not a person who was acting on behalf of the PA. The applicant has claimed that when confronted by [Mr X]'s associates and by [Mr X] himself, reference had been made to the applicant's political involvement and the donations he had made to his favoured political parties. I accept that the applicant's high profile role as a supporter and financial donor to the SLMC and the UNP identified him as a man of significant financial means and a ready target for extortion. However, in the absence of any other evidence suggesting [Mr X] was in any way involved in the political process in Sri Lanka, I find that such references made by [Mr X] and his associates to the applicant's political involvement were done to show the applicant that these people were aware he had significant financial means and they knew he was able to pay any extortion demands that they made of him, and not because of any political motivation on the part of [Mr X] and his associates. The applicant has claimed that the fact that his family, including his brother who continued with the family business after the applicant left Sri Lanka, had not received any demands from [Mr X] and his associates after the applicant's departure from the country would indicate that the interest [Mr X] had in the applicant was political in nature. However, as was pointed out to the applicant at the second Tribunal hearing, [Mr X] had been arrested and jailed awaiting trial at the time that the applicant left Sri Lanka which would make it difficult, if not impossible for him, to continue making financial demands and extortion attempts on the applicant's family in Sri Lanka. Based on all of the evidence before me, I am not satisfied that the interest of [Mr X] and his associates in the applicant was motivated in any way because of the applicant's involvement in politics, his actual political opinion or his imputed political opinion. Whilst accepting that the applicant has been targeted in the past for harm by [Mr X] and his associates, I find that the interest of [Mr X] and his associates in the applicant was motivated for the essential and significant reason of personal enrichment on the part of [Mr X] and his associates through extortion and not for any Convention relate reason. 27 In addition to this, the Tribunal made further findings as follows: Apart from the incidents relating to [Mr X] and his associates discussed above and the enquiry made on the applicant by Customs officials in November 2004, the applicant clearly indicated at the second Tribunal hearing that he had not suffered any harm in the past in Sri Lanka for any Convention related reason. Based on all the above I find that the applicant did not suffer any serious harm for any Convention related reason prior to his departure from Sri Lanka. The applicant has claimed that if he returns to Sri Lanka now or in the reasonably foreseeable future he fears that he would be harmed by his political opponents in the PA and the government because of his actual and imputed political opinion as a supporter of the SLMC and the UNP political parties. However, despite his long and active involvement in the political process in Sri Lanka, the applicant has not suffered any serious harm in the past in Sri Lanka because of his actual or imputed political opinion or for any other Convention related reason. I therefore now find that if the applicant returned to Sri Lanka now or in the reasonably foreseeable future there is no real chance that he would suffer any serious harm from his political opponents because of his actual or imputed political opinion. I also find that he would not be precluded in any way from continuing his active political and community involvement in Sri Lanka because of any such fear or harm. Although the applicant did not make any direct claim that he feared harm from [Mr X] and his associates upon return to Sri Lanka, given that the applicant has faced non-Convention related harm from these people in the past, I have considered whether he would face any harm from these people upon return to Sri Lanka. As was discussed with the applicant at the second Tribunal hearing, [Mr X] is now in prison and has been sentenced to death as the ringleader behind the assassination of a judge. Despite some reports that [Mr X] was able to direct some of his drug dealing activities from prison, he has not targeted the applicant's family in any way and is awaiting execution. On the evidence before me I find that if the applicant returned to Sri Lanka now or in the reasonably foreseeable future there is no real chance that he would suffer any serious harm from [Mr X] and his associates, whether for Convention related reasons or otherwise. Based on all of the above I find that the applicant does not have a well founded fear of persecution within the meaning of the Convention. 28 In my view, a fair reading of these passages indicates, after receiving the post-hearing submissions, that the Tribunal clearly considered the contention that Mr X himself was a thug for hire by the appellant's political opponents. In the end, the Tribunal could not be satisfied there was political motivation in Mr X's actions. 29 I do not observe anywhere in the Tribunal's reasons the requirement, contended by the appellant to arise, that the perpetuator of the prosecution, namely Mr X himself, had himself a political motivation. The simple fact is that the Tribunal was not satisfied that Mr X was a 'thug for hire' as he was sought to be characterised by the appellant. I again reiterate that it was only through the actions of Mr X that the Tribunal was asked to consider the question of harm for any Convention related reason, there being no other incidents relied upon other than Mr X's activities in relation to the appellant. 30 The essence of the passages referred to above were also relied upon by the Federal Magistrate to support his conclusion in rejecting the similar contentions put by the appellants to me and, in my view, his Honour's reliance on them and his conclusions based upon them were correct. 31 I do not regard it as necessary for the Tribunal to specifically address each and every aspect of the evidence presented. The pieces of evidence in relation to the country information and media reports relied upon by the appellants were just that, pieces of evidence. 32 A failure by the Tribunal to consider every piece of evidence and even to address every contention is not a matter which necessarily gives rise to jurisdictional error: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 and Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 422 and 423. For instance, the Tribunal would not necessarily need to deal with the generalised evidence provided by the appellant that organised crime had close links with Sri Lankan politicians or that Sri Lankan politicians had used criminals to intimidate or eliminate political opponents, in view of the specific findings of the Tribunal in relation to the appellant and Mr X as set out above. 33 In any event, as I have said, the Tribunal did refer to the post-hearing submissions specifically, which the Tribunal said it had read and considered, and which became part of the information relied upon to reach the conclusions set out above. The weight of the evidence is, of course, a matter for the Tribunal: see VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 68 at [56]. 34 The appellant specifically referred to part of the post-hearing submissions and the documents referred to therein and, in particular, referred to the following passage: Although you accepted that [the appellant]was not required to corroborate his claims, you indicated that you had to be satisfied that the treatment he had experienced was for a Conventionreason, in this case, actual or imputed political opinion. It was implicit from your comments, that you required some evidence independent from [the appellant]in order to be so satisfied. Naturally, government or political figures would not openly admit or divulge any connexion with political violence. Consequently, independent verification is difficult. Nevertheless, we have been able to locate five articles that have appeared in the Sri Lankan media that assert that the drug trade in Sri Lanka is run by a conspiracy of police, politicians and criminals: see "Police, Politicians and Underworld behind heroine (sic) business" - Lanka Truth, 30 December 2005 (attachment 4) and the same article in the Lanka Sun, 30 December 2005 (attachment 5); "Underworld Links with Major Politicians" - The Independent, 1 June 2006 (attachment 6); "Magistrate remands Sanjaya Siriwardene till May 4" Lanka newspapers at pp. 4-5 of 9 (highlighted - attachment 7). The latter article states that a former Provincial Council Minister was connected with the murder of a political opponent along with [Mr X]. The person remanded was the driver of the politician's car: "Prisons directed to produce two suspects" - Daily News, 22 February 2005 (attachment 8). 35 The Tribunal did not specifically refer to this passage, or the documents referred to, but, in my view, on a fair reading of the Tribunal's decision, it did consider the import of that material in finding as it did. There was nothing in the material that was referred to, or in the post-hearing submission, that would indicate that the Tribunal's decision was not open to it. The whole basis of the appellant's claim relied upon the involvement of Mr X. The way the case has always been presented related to Mr X being a 'thug for hire' in respect of what he did to the appellant. The only issue was that of motivation, which was found adversely to the appellants. 36 One can readily understand the difficulties of proving on any standard, or satisfying a Tribunal at any level, the matters the appellants sought to prove in this case. Nevertheless, the Tribunal has, in this particular case, in my view, considered the material and made its own assessment. In my view, the Federal Magistrate correctly analysed the reasoning of the Tribunal and properly found that the Tribunal considered the case put before the Tribunal as presented by the appellants. 37 As to the second issue relating to the burden of proof, I consider that the Federal Magistrate was correct; the claim that the Tribunal had impermissibly imposed a burden of proof on the appellants must be rejected on a correct reading of the Tribunal's reasons. There is simply nothing to suggest the Tribunal imposed a burden of proof on the appellants or required corroboration. In fact, an analysis of the transcript of the Tribunal would suggest the opposite. This is not a case like that in Ejueyitsi 151 FCR 289, where the Tribunal impermissibly imposed a burden of proof on the appellant, and thereby committed jurisdictional error. Here, there is no reference to burden of proof in the Tribunal's reasons. This is a simple case of the Tribunal making findings on the appellants' claim and deciding against the appellants on the merits. 38 I also can find no basis for any suggestion that the Tribunal implicitly adopted an incorrect approach; not in its logic, reasoning, or anything that is indicated through its reasons. It goes without saying, and is accepted by all parties, that there is no legal burden of proof in administrative decision-making, but this is not the issue that I need to determine. The issue that I have been asked to determine is whether or not the Tribunal in fact did impose a burden of proof which was not permissible. 39 Finally, in the appellants' submissions, it was contended as follows: Although it is contended that the Appellant's claims and evidence raise the real chance of persecution for a Convention-related reason, it was also open to the Tribunal to follow the approach expounded by Kirby J in MIMIA v SGLB (2004) 207 ALR 12; [2004] HCA 32. This case concerned an Iranian of Iraqi ethnicity who was held in immigration detention. Although his particular circumstances were very different from those of the Appellant in the present case, Kirby J's observations concerning the approach that should be taken by administrative decision-makers in relation to protection visa applications are nevertheless apposite: "(4) Adopting approach of vigilance: It was accepted by the tribunal that the respondent did not wish to return to his country of nationality, Iran, and that he "may have a strong subjective fear in relation to doing so". Moreover, the tribunal accepted (and the evidence supported the conclusion) that "arbitrary arrest and detention are common in Iran and that serious ill-treatment occurs in prisons". The material on the record before the tribunal included a news report in relation to the return of Iranian men refused refugee status in Australia after spending two years in immigration detention at the Woomera Detention Centre. These materials properly oblige the tribunal, and other Australian decision-makers, to adopt an approach of vigilance to such applications. All Australian decision-makers in this field must test their conclusions against the possibility that the conclusions might be wrong. The benefit of any reasonable doubt should ordinarily be given (at least in a case such as the present) to a person in the position of the respondent." It is submitted that the Tribunal's failure to consider whether the Appellant should be given the benefit of any doubt further demonstrates that it misconceived the nature of its statutory task and that its decision should be set aside. 40 The circumstances of Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 were very different to those of the appellants in this appeal, as was conceded in the submissions of the appellants. I do not consider there was any obligation on the part of the Tribunal to have given the appellants 'the benefit of any doubt' or to have adopted further 'vigilance'. The Tribunal, in my view, properly considered the evidence, and made a decision on the basis of that evidence on the issues before it. 41 Accordingly, in my view, the appeal should be dismissed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Solicitor for the Appellant: Wimal & Associates

Solicitor for the First Respondent: Australian Government Solicitor

Date of Hearing: 7 November 2007

Date of Judgment: 7 November 2007