MZXRN v Minister for Immigration and Citizenship [2008] FCA 1622

FEDERAL COURT OF AUSTRALIA

MZXRN v Minister for Immigration and Citizenship [2008] FCA 1622 Migration Act 1958 (Cth), ss 5(1), 36, 424A Convention relating to the Status of Refugees done at Geneva on 28 July 1951 Protocol relating to the Status of Refugees done at New York on 31 January 1967 MZXRN v Minister for Immigration and Anor [2008] FMCA 729 affirmed MZXRN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 297 of 2008

GRAY J

28 AUGUST 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 297 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZXRN

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAY J DATE OF ORDER: 28 AUGUST 2008

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be 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 297 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZXRN

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAY J

DATE: 28 AUGUST 2008

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This appeal is from a judgment of the Federal Magistrates Court of Australia in MZXRN v Minister for Immigration and Anor [2008] FMCA 729, delivered on 14 April 2008. The learned federal magistrate dismissed an application by the appellant seeking to overturn a decision of the Refugee Review Tribunal ("the Tribunal"), made on 30 May 2007 and delivered on 8 June 2007. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, now the Minister for Immigration and Citizenship, (in both cases, "the Minister") to refuse to grant to the appellant a protection visa. 2 The appellant is a citizen of Sri Lanka. Relevantly to the present case, he arrived in Australia on 25 July 2006, in possession of a visa entitling him to visit Australia for three months. On 7 September 2006, the appellant applied for a protection visa. By s 36 of the Migration Act 1958 (Cth) ("the Migration Act"), there is a class of visas to be known as "Protection Visas." A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call those two instruments, taken together, "the Convention." For present purposes, it is sufficient to note that the Convention provides that Australia has protection obligations to any 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 3 The appellant claimed that he had a well-founded fear of persecution because of his political opinion, if he should return to Sri Lanka. In support of his application for a protection visa, and of his application to review the decision of the Minister's delegate, the appellant provided a very substantial amount of detailed information. He claimed to have been an active member of an opposition political party known as the UNP in Sri Lanka, whose members have been persecuted by the Peoples Alliance, a party in government. The information he supplied included accounts of incidents in which the appellant claimed to have been beaten severely and to have received threats of death to himself, his wife and his son. It is fair to say that if all of his evidence had been accepted, the appellant would have been entitled to a protection visa. 4 The Tribunal did not accept all of the appellant's evidence. It accepted that he had the sort of detailed knowledge that supported his claim to have been actively involved in the UNP. The Tribunal did not accept that the appellant had suffered the assaults that he claimed, or that he had received the threats that he claimed. In part, this was because, in making his application for his visitor's visa and in making his application for a protection visa, the appellant had concealed information about his previous visits to Australia. On one of those visits the appellant had lived in Australia for three years during a period in which he claimed he was living and working in Sri Lanka. The Tribunal did not accept the appellant's explanations for this non-disclosure. In addition, the Tribunal found that documents presented to the Tribunal by way of supporting the appellant's case as to the assaults he claimed to have suffered were substantially less than ought to have been available in the Tribunal's view. Again, the Tribunal did not accept the appellant's explanation for the absence of detailed information of a medical nature. The Tribunal also found that there were a number of other inconsistencies in the account that the appellant gave. 5 In the result the Tribunal found that the appellant had not experienced persecution in the past for reasons of his political opinion. It found that there was not a real chance of persecution in Sri Lanka in the foreseeable future for a Convention reason. The Tribunal considered that the appellant's claims were not genuine, but that he had attempted to fashion his political background into a refugee claim for the purpose of securing a right to live in Australia, which he had previously failed to achieve. 6 The appellant's application to the Federal Magistrates Court was dated 6 July 2007. It contained only one ground of review of the Tribunal's decision. This alleged a failure to consider a relevant issue or a failure to take account of a relevant consideration. The particulars of the ground in substance made the claim that, because the Tribunal had accepted some of the claims of the appellant, it ought to have accepted others as well. 7 As the reasons for judgment of the learned federal magistrate demonstrate, the appellant argued in the Federal Magistrates Court grounds other than that specified in his application to that court. The federal magistrate identified four additional grounds and treated the ground referred to in the application as a fifth ground. 8 The first ground was that the appellant had been denied procedural fairness because he was not permitted to comment upon information from sources other than himself, on which the Tribunal relied, about the political situation in Sri Lanka. The federal magistrate correctly recognised that the Tribunal had in fact made use of the information to assist the appellant's case rather than to defeat it. The Tribunal recognised that the accounts given by the appellant were consistent with the types of events that had occurred in Sri Lanka, as shown by the additional information. Accordingly, the Tribunal was not obliged by s 424A of the Migration Act to provide the appellant with an opportunity to comment on that information. The Tribunal did not consider that the information would be the reason or a part of the reason for affirming the decision of the Minister's delegate. In addition, as the federal magistrate found, the Tribunal had given the appellant an opportunity to comment on the information during the Tribunal's hearing. 9 The second ground was that the appellant was unaware that his medical information was in issue or that the medical reports he provided were not necessarily accepted. As the federal magistrate found, the Tribunal had raised the question of medical treatment with the appellant during the hearing and asked whether the appellant could obtain medical evidence of the injuries he said he had suffered. Although not strictly obliged to, the Tribunal had given the opportunity to the appellant to comment on the Tribunal's view of the medical reports in a letter pursuant to s 424A of the Migration Act. The appellant responded in writing and the Tribunal took his response into account. The federal magistrate could not discern any jurisdictional error by the Tribunal with respect to the medical evidence. 10 The third ground identified by the federal magistrate was the use made by the Tribunal of a delay of some five months between the appellant obtaining a visitor visa and leaving Sri Lanka. The issue of this delay was put to the appellant during the Tribunal's hearing and also in the letter pursuant to s 424A of the Migration Act. The appellant responded in writing and the Tribunal took into account his response. The federal magistrate was not persuaded that the appellant had demonstrated jurisdictional error with respect to that issue. 11 The fourth ground appeared to the federal magistrate to be the proposition that the Tribunal considered threats to the appellant as separate issues from the claimed assaults upon the appellant. At [28] of his reasons for judgment the federal magistrate said: Ultimately, the Tribunal rejected entirely the applicant's evidence about threats and about assaults. It is clear that, if the Tribunal had accepted either that the threats had occurred or that the assaults had occurred on their own, each of those issues may have formed the basis for the tribunal to then need to consider whether the applicant was at real risk of persecution in the future. His Honour went on to point out that, if both matters had been accepted, it would have been necessary for the Tribunal to consider the evidence in its entirety. As both had been rejected, his Honour saw no error on the part of the Tribunal. 12 In dealing with the ground that appeared in the appellant's application to the Federal Magistrates Court, the federal magistrate referred to a statement in the Tribunal's reasons for decision that, in some respects, the appellant's evidence appeared consistent and plausible. The federal magistrate found that, in context, that line showed no more than that the Tribunal was acknowledging potentially positive aspects of the appellant's case and explaining why evidence was not accepted, but was rejected. The line showed that the Tribunal member gave serious and real consideration to matters that weighed in the appellant's favour when assessing his credibility. His Honour also found no error in respect of that ground. 13 The federal magistrate pointed out that, in submissions in reply, the appellant had raised a number of issues of fact that he claimed should have been decided in his favour or considered. His Honour pointed out correctly that the Federal Magistrates Court could not revisit questions of fact, as those questions could not form the basis for the court's review of the Tribunal's decision. The federal magistrate dismissed the appellant's application and ordered him to pay the Minister's costs fixed at $5,000. 14 The notice of appeal filed in this Court on 5 May 2008 contains four grounds. Those grounds do not in terms link with the grounds that were referred to in the reasons for judgment of the federal magistrate. They are expressed in the following terms: 1. The learned Federal Magistrate erred in not finding that the second respondent ("the Tribunal") acted without jurisdiction in acting in breach of its obligations under the law. 2. The Learned Magistrate erred in not finding that the Tribunal acted without jurisdiction in that it failed to have regard to relevant considerations. 3. The Learned Magistrate erred in not finding that the Tribunal acted without jurisdiction in that the decision was based in part on a finding not open on the material before the Tribunal. 4. The Learned Magistrate erred in not finding that the decision was affected by jurisdictional error in that there was a reasonable apprehension that the Tribunal was biased. 15 The appellant appeared without legal representation and was assisted in making submissions by a qualified interpreter. The submissions that he made attempted to re-agitate questions of fact. In effect, the appellant sought to persuade me that the Tribunal had reached the wrong conclusion and that he should have been entitled to a protection visa. I endeavoured to explain to him that the function of this Court, and of the Federal Magistrates Court, did not extend to correcting any factual errors that the Tribunal may have made. The function of this Court, and of the Federal Magistrates Court, is limited to determining the correctness in law of the process undertaken by the Tribunal. Only if the Tribunal failed to perform its statutory function properly, so that its decision was flawed by jurisdictional error, could a court overturn the decision. 16 I have examined the reasons for judgment of the federal magistrate carefully. I can detect no error in those reasons for judgment. Indeed, the federal magistrate was absolutely correct in dealing with each of the grounds and in dealing with the factual issues raised by the appellant. 17 The four grounds in the notice of appeal are not supplemented by any particulars. To the extent to which they may be taken as covering suggestions that the federal magistrate made errors in relation to the grounds with which his Honour was dealing, they must be rejected. If the grounds are intended to go to any further extent, they have not been particularised and they have not been supported by any submissions. In particular, the allegation made in ground 4 of a reasonable apprehension that the Tribunal was biased has not been made on any previous occasion and has not been made out in this Court. The appellant's concern has been to re-agitate the factual issues that were determined against him by the Tribunal. It is not open to him to do that in this Court. For those reasons the appeal must be dismissed. 18 Counsel for the Minister has sought an order that the appellant pay the Minister's costs of the appeal. The appellant has not advanced a reason why the usual rule, that costs follow the event, should not be followed. He has claimed that he is impecunious but impecuniosity is not generally regarded as a reason to refrain from making an order for costs against a party. The appellant has also sought some concessions as to the amount of costs paid. The request by counsel for the Minister is that I should simply make an order for costs and leave the assessment of them to the registrar in due course. I propose to follow that course. The orders that I make are as follows: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.