MZXID v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 162

FEDERAL COURT OF AUSTRALIA

MZXID v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 162 MZXID v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL VID 1041 OF 2006

MARSHALL J

20 FEBRUARY 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1041 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZXID

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MARSHALL J DATE OF ORDER: 20 FEBRUARY 2007

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1041 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZXID

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MARSHALL J

DATE: 20 FEBRUARY 2007

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of the Federal Magistrates Court, in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal. 2 The appellant is a citizen of Sri Lanka. He claimed that he feared persecution if returned to Sri Lanka in the reasonably foreseeable future, by reason of his political opinion and his membership of a particular social group. 3 A delegate of the first respondent rejected his application. He applied to the Tribunal to review that decision. The Tribunal understood his claim to be that he would be persecuted in Sri Lanka for his support of the Liberal Party, by political opponents. It noted his claim to have been the victim of politically inspired violence in the past. 4 The Tribunal had significant concerns about the appellant's credibility. It found his claims vague, lacking detail and that he had embellished his story. It found that he had a low level political involvement which did not rise beyond being a supporter of the Liberal Party and helping it in campaigns, in particular when his cousin contested a council election in 2002. 5 The Tribunal did not accept that the appellant was ever physically harmed for his support of the Liberal Party. It also rejected his claim that he could not work in his home town because of the activities of political opponents. It further rejected his claim that he had to go into hiding to avoid political opponents. 6 Before determining the application on 7 February 2006 the Tribunal took the following steps: · by letter dated 19 September 2005 it invited the appellant to a hearing on 24 November 2005; · it received a request dated 4 October 2005 to defer the hearing to enable the appellant to provide supporting documents which could not be provided until after 17 November 2005; · by letter dated 6 October 2005 it rejected the postponement request; · it received a request dated 19 October 2005 to reconsider its decision to refuse to grant a postponement of the hearing; · by letter dated 21 October 2005 it affirmed its rejection of the postponement request; · by letter dated 25 November 2005 it asked the appellant to comment on some discrepancies in his evidence; · it received the appellant's written comments on 19 December 2005. 7 The Federal Magistrate rejected the appellant's submission that the Tribunal had committed jurisdictional errors in dealing with his review application. 8 The appellant claimed before his Honour that the Tribunal had failed to give him sufficient time to provide further documentation. His Honour held that, although the Tribunal had initially rejected a delay, which was not of unreasonable length, it later (by its 25 November 2005 letter) gave the appellant the opportunity to submit further material. At [10], his Honour said: 'While the letter did not in terms invite the Applicant to submit material of the sort earlier foreshadowed in the correspondence on 4 October 2005, it must have been plain to the Applicant and his advisors that there was indeed time to get such material and to include it in the material forwarded to the Tribunal.' 9 I consider that it was open to the Tribunal to refuse a request for an adjournment 'for several months'. The appellant's advisers provided no certainty as to when the foreshadowed material would be received. In any event, the nature of the documents referred to would not have made a difference to the Tribunal's decision, based on the strength of its findings about the appellant's lack of credibility and his minor status as a political operative. 10 I reject the submission that the Tribunal denied the appellant procedural fairness by failing to postpone the hearing of this application. 11 His Honour also rejected the submission that the Tribunal erred by failing to consider, in his case, evidence given by his mother, in her case. The evidence concerned the murder of the appellant's brother. The Federal Magistrate noted that the appellant made no claim in his case about his brother's murder; the only reference to his brother was a reference in the letter dated 4 October 2005 to 'the death certificate of Ms Manniku Wadu's son'. He also noted that the appellant's adviser did not seek that the Tribunal have regard to the evidence of the appellant's mother in her case for the purposes of the appellant's case. In any event, as his Honour noted at [17]: 'The Tribunal did not accept the assertions made in that case, by the mother, to the [e]ffect that her son had been murdered as an act of political revenge.' 12 The Federal Magistrate went on to observe that even if the Tribunal had taken the mother's evidence into account in the appellant's case, it would not have assisted him. I agree and consider that no jurisdictional error occurred by the Tribunal not considering that evidence, being evidence that was not before it in the appellant's case. 13 The appellant also submitted before his Honour that the Tribunal did not consider his claim to be liable to persecution on account of his membership of a particular social group being 'his family'. The Federal Magistrate noted that the appellant never articulated a claim in that way. That observation is correct. Indeed in his final, post-hearing, written submissions under the heading of 'particular social group', he said: 'I belong to the Liberal Party that could be classified as a particular social group.' He made no claim to belong to another social group. 14 The Federal Magistrate also rejected a submission that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) by failing to put information that was adverse to the appellant for his comment in writing, being information that was the reason or a part of the reason for decision. 15 I am not satisfied that the appellant has identified any such information that falls within s 424A other than that falling within the exclusion provided by s 424A(3)(a). 16 While not clearly expressed as a ground of appeal, in his written submissions the appellant seeks to rely on an argument that the Tribunal 'did not at any time consider, using its inquisitorial approach, whether or not the appellant was still dependent on his mother'. The appellant refers to s 486B(7)(a) of the Migration Act and reg 5.43 of the Migration Regulations 1994 (Cth). The Tribunal had no duty to make such inquiries: it is for the appellant to advance his claim and for the Tribunal to decide whether the claim is made out (see Abebe v Commonwealth of Australia (1999) 197 CLR 510, per Gummow and Hayne JJ at [187]). 17 In any event, it is unnecessary to consider this argument because it was not raised before the Federal Magistrate. Further, it does not appear to arise from the court book containing the background material which was before the Tribunal. 18 The appeal is dismissed, with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.