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Federal Court of Australia |
Last Updated: 19 December 2005
FEDERAL COURT OF AUSTRALIA
MZWLJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1869
MZWLJ
v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
VID 903 OF 2005
NORTH J
28
NOVEMBER 2005
MELBOURNE
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
OF AUSTRALIA
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BETWEEN:
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MZWLJ
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
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 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 This is an appeal from a decision of Federal Magistrate McInnis delivered on 19 July 2005. The Federal Magistrate dismissed an application for review of the decision of the Refugee Review Tribunal (the Tribunal) dated 10 July 2000. The Tribunal affirmed the decision of the delegate of the respondent, the Minister for Immigration, Multicultural and Indigenous Affairs, not to grant the appellant a protection visa. The appeal is heard by a single judge of the Court pursuant to a direction of the Chief Justice dated 11 October 2005.
2 The appellant, a citizen of Sri Lanka, claimed to fear persecution on the basis of an imputed political opinion, namely, support for the Liberation Tigers of Tamil Eelam (LTTE).
3 The decision of the Federal Magistrate sets out the facts of the case and the long history of litigation, so they need not be repeated. In summary, the appellant alleged that government forces questioned and assaulted him in the course of interrogation because he was believed to support the LTTE. The appellant stated that this belief arose from two facts, namely, that he was married to a Tamil woman and that he had supported a Tamil friend for many years. The amended notice of appeal claimed the Federal Magistrate had failed to find that the Tribunal had committed jurisdictional error. The particulars of the jurisdictional error are stated as follows:
1 The Court and the RRT erred by not holding that the applicant had a well-founded fear of persecution which was based on his association with a Tamil person and as a result of being married to a Tamil.
2 The Court was also wrong by not taking into account the fact that he
had left the country legally, had changed his name and was forced to disguise himself.
3 The Court also erred by not holding in relation to language that it was
not a significant finding.
The particulars
stated in [1] amount to a very general criticism of the overall
result and
do not indicate any specific complaint that can be agitated on appeal. The
Federal Magistrate dealt with matters stated
at [2] and [3]. It is not
necessary to elaborate beyond reference to the Federal Magistrate’s
decision on these grounds as
the Federal Magistrate was correct to reject these
allegations.
4 The appellant also sought to argue three additional matters on the appeal. He alleged that the deep communal division in Sri Lanka between the Singhalese and the Tamils is highly divisive and has created hatreds within the society, including within the appellant's family. Consequently, the appellant argued that the Tribunal was wrong when it determined at [21] that it was irrelevant that the appellant's wife is Tamil. This submission did not direct itself to the reasoning of the Tribunal or to the appellants claimed fear of persecution. It does not assist the appellant on the appeal.
5 The appellant then argued that the Tribunal misunderstood the definition of persecution. The notice of appeal contained no ground reflecting this argument. The appellant was unable to elaborate on the assertion. The notice of appeal contained no ground reflecting this argument. The Tribunal did not misunderstand the definition of persecution.
6 Finally, the appellant argued that he was not permitted to comment on the country information the Tribunal used. This argument was not based on any ground of appeal and was not raised before the Federal Magistrate. Consequently, the appellant would require leave to agitate the argument at this late stage. In my view such leave should be refused because the ground is hopeless. The legal requirement to furnish information to the appellant derives in part from s 424A(1) of the Migration Act 1958 (Cth) (the Act). However, generalised country information such as that used by the Tribunal is specifically exempted: s424A(3)(a). Furthermore, the appellant has not established the necessary elements of the allegation. He has not established that he was not given notice of the contents of the country information. The transcript of the Tribunal proceedings was not placed before the Federal Magistrate or this Court, and no admissible evidence was led by the appellant regarding the hearing. Furthermore, the country information used by the Tribunal was only marginally relevant to its decision. The appellant has not indicated to the Court the evidence he would have led which may have changed the result.
7 Thus, the oral arguments that the appellant raised could not be sustained. The arguments raised in the amended notice of appeal were correctly rejected by the Federal Magistrate. Consequently, the appeal must be dismissed with costs.
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I certify that the preceding seven (7) numbered paragraphs are a true copy
of the Reasons for Judgment herein of the Honourable Justice
North.
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Associate:
Dated: 28 November 2005
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Counsel for the Applicant:
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Appellant appeared in person
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Counsel for the Respondent:
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Mr. Mosley
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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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28 November 2005
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Date of Judgment:
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28 November 2005
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2005/1869.html