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Federal Court of Australia |
Last Updated: 29 November 2005
FEDERAL COURT OF AUSTRALIA
MZWJB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1709
MIGRATION – no question of principle – appeal
dismissed
Edwards v Guidice [1999] FCA 1836; (1999) 94 FCR
561, referred to
Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196;
(2001) 113 FCR 396,
applied
MZWJB v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE
REVIEW TRIBUNAL
VID 858 OF
2005
MARSHALL J
25
NOVEMBER 2005
MELBOURNE
ON APPEAL FROM THE FEDERAL
MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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MZWJB
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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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.
ON APPEAL FROM THE FEDERAL
MAGISTRATES COURT OF AUSTRALIA
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AND:
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REASONS FOR JUDGMENT
1 The appellant appeals from a judgment of a Federal Magistrate. The Federal Magistrate dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal affirmed the decision of a delegate of the then Minister for Immigration and Ethnic Affairs not to grant a protection visa to the appellant.
2 The Tribunal rejected the appellant’s claims that he faced a real chance of persecution if returned to Sri Lanka on account of his ethnicity (Tamil), his religion (Muslim) and his claimed political opinion or affiliation (United National Party).
3 The Tribunal did not accept that the appellant faced persecution from the Liberation Tigers of Tamil Eelam for disclosing to the authorities the location of LTTE training. The Tribunal also found that the extracting of money from the appellant by the LTTE was merely a criminal offence committed opportunistically, without reference to his religion. The Tribunal did not accept that the LTTE wrote to the appellant in 1992, imposing a death sentence on him. It placed little weight on "sur place" letters sent by the appellant’s father claiming that Tamil men sought the appellant after he left Sri Lanka for Australia.
4 The Tribunal found that the appellant did not have a real chance of being persecuted by the LTTE for a Convention reason if returned to Sri Lanka.
5 The Tribunal also did not accept that the appellant faced a real chance of persecution by the authorities in Sri Lanka, either as a result of being a suspect in the murder of a Buddhist priest or any suspected involvement with LTTE. It further did not accept that the appellant was any more than a low level supporter of the UNP or that he was of interest to the authorities on account of his political opinion.
6 The appellant sought judicial review of the Tribunal’s decision before the Federal Magistrates’ Court. The grounds relied upon were general and in many respects difficult to follow, especially concerning the suggestion that the Tribunal did not properly interpret sections of the Migration Act 1958 (Cth), which were not in force at the time of its decision.
7 The grounds of review in the proceeding below appeared to cavil with the merits of the Tribunal’s decision. However they did contain a ground that the Tribunal had considered submissions made by the Minister’s Department under s 423(2) of the Act, which submissions the appellant had not had drawn to his attention. Section 423(2) provides that the Secretary of the Department may give the Registrar of the Tribunal a written argument relating to the issues arising in relation to the decision under review. The grounds also raised the issue of a denial of procedural fairness, presumably in the context of s 423(2). However, the s 423(2) issue is not pressed on appeal.
8 At the hearing before the Federal Magistrate on 12 July 2005, his Honour gave ex tempore reasons for judgment. The Federal Magistrate rejected the appellant’s application for an adjournment of the appeal. The main reason for the ruling was his Honour’s view that, had an adjournment been granted, the appellant would not be in any better position, in the future, to establish his grounds of review.
9 The Federal Magistrate considered that each of the grounds of review had been comprehensively answered by the Minister’s contentions in response. He adopted those submissions by reference. His Honour rejected a new ground sought to be raised before him at the hearing below, that the interpretation provided to the appellant before the Tribunal was inadequate. The Federal Magistrate then observed that a lawyer had represented the appellant before the Tribunal.
10 At [3] of his reasons, his Honour said:
"... the Tribunal’s decision was an exhaustive exploration of the [Appellant’s] claims. There was a clear identification by the Tribunal of the [Appellant’s] social grouping within the Sri Lankan community and the dynamics of that group’s relationships with other groups in Sri Lanka."
The Federal Magistrate observed that "... on significant claims, the credibility of the [Appellant] was not accepted".
11 At [4] his Honour said:
"... this review application has all the hallmarks of an attempt to re-agitate the claims in the hope that this Court might make a different determination on the facts."
12 By his amended notice of appeal, the appellant raised four grounds.
13 First he contended that his Honour erred in not identifying the grounds of review and the issues raised in the appellant’s contentions and by not saying why those contentions were rejected. In written submissions in support of this ground, the appellant criticised his Honour for not setting out the competing contentions. Although it would have been preferable for his Honour to set out the main arguments relied upon by the parties, it is evident that he considered the appellant’s contentions to invite an impermissible merits review. The Federal Magistrate’s judgement, to that extent, disclosed a reasoning process and no appealable error arose as a result. Compare, Edwards v Guidice [1999] FCA 1836; (1999) 94 FCR 561 at [38] to [48].
14 The second ground of appeal attacked that aspect of the Federal Magistrate’s decision which dealt with the alleged inadequate interpretation at the Tribunal. This issue was not developed in the appellant’s written contentions. Counsel for the appellant abandoned it at the hearing of the appeal.
15 The third ground of appeal referred to his Honour’s alleged failure to identify the claims of the appellant in respect of which the Tribunal did not find him to be credible. A perusal of the Tribunal’s decision will identify those claims. It would have been preferable for his Honour to mention them. For example, reference may have been made to the Tribunal’s failure to accept that the appellant had been held in a camp for 9 months or that he had been tortured or mistreated. Reference may also have been made to the Tribunal’s non-acceptance that the appellant belonged to the UNP. However, no appealable error is disclosed by this ground, given that a reasoning process has been shown, despite the economy of language involved.
16 In the fourth ground of the appeal the appellant states that his Honour failed to specify why an adjournment was sought. His Honour specified why it should be refused and that is all that matters. The appellant has not shown how he was disadvantaged by not obtaining an adjournment. His written contentions did not address that issue. At the hearing of the appeal, his counsel said that any benefit arising from an adjournment "would have been hypothetical".
17 Finally, the appellant raised several matters in his contentions which do not bear on any ground of appeal. Those matters cavil with findings of fact made by the Tribunal rather than identify any judicially reviewable error. The contentions do not refer to s 423 of the Act but only raise natural justice in the context of the appellant not having the benefit of the Tribunal considering all the country information before it, in its reasons. That is not a proper basis for a natural justice argument. The Tribunal is not bound to consider all the factual information or every piece of evidence before it in its reasons, if it otherwise considers the appellant’s claims; see Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [76] to [79] per Allsop J (with whom Heerey J agreed). The Tribunal considered and rejected all central planks of the appellant’s claims. It found that he did not fear persecution at the hands of the LTTE or the authorities if returned to Sri Lanka on account of his religion, ethnicity or political opinion. Counsel sought leave to amend the amended notice of appeal to incorporate the matter referred to in this paragraph. As it has no merit, that leave should be refused.
18 The appeal is dismissed, with costs.
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I certify that the preceding eighteen (18) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice
Marshall.
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Associate:
Dated: 25 November 2005
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Counsel for the Applicant:
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Mr T Fernandez
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Solicitor for the Applicant:
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T A Fernandez
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Counsel for the Respondent:
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Ms J Macdonnell
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Solicitor for the Respondent:
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Australian Government Solicitor
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Date of Hearing:
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25 November 2005
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Date of Judgment:
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25 November 2005
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2005/1709.html