M27 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1899 (2 December 2005)

Last Updated: 22 December 2005

FEDERAL COURT OF AUSTRALIA

M27 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1899

M27 OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 941 OF 2005

NORTH J
2 DECEMBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 941 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	M27 OF 2004 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	2 DECEMBER 2005
WHERE MADE:	MELBOURNE

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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 941 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	M27 OF 2004 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	2 DECEMBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an appeal from a decision of McInnis FM delivered on 26 July 2005. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 31 December 2003. The Tribunal had affirmed the decision of the delegate of the respondent, the Minister for Immigration and 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 Acting Chief Justice dated 4 October 2005.

2 The applicant, a citizen of Sri Lanka, claimed to fear persecution by reason of her political opinion as a supporter of the Janatha Vimukthi Peramuna (JVP).

3 The decision of the Tribunal contains a detailed factual background of the case, so it need not be repeated in full. In summary, the Tribunal did not accept that the appellant’s claims that she had been involved with the JVP. The Tribunal also doubted the harassment the appellant claimed to have happened occurred because of any association with the JVP. The Tribunal further found that even if the motivation for the verbal harassment was by reason of her association with the JVP the conduct was short of conduct which could be regarded as persecutory. The Tribunal rejected the appellant's evidence that she received anonymous letters and telephone calls following the United National Party victory in December 2001. It also rejected her evidence that her beauty salon was vandalised in March 2002, that people came to her home and treated her mother roughly and threatened to kill the family and there were ongoing phone calls. The Tribunal said at page 14:

Having regard to the applicant's evidence about the nature and extent of her involvement in the JVP and independent information about the conduct of politics in Sri Lanka I have come to the view that what the applicant claims occurred is not credible.

The Tribunal then rejected the appellant's evidence that the police had not followed up her complaint about these incidents. Finally, the Tribunal considered the question whether the appellant's support for the JVP gives rise to a well-founded fear in the future if she returned to Sri Lanka. The Tribunal concluded at page 15 as follows:

I have concluded that the applicant supports the JVP but she was not involved in the party or its activities as she has claimed. Independent information outlined above indicates that the JVP was brutally suppressed by the Sri Lankan government in the late 1980s and that it has abandoned its armed militant stance and that it now participates in mainstream politics although it continues to hold strong left wing views. The manner of suppression of the JVP would probably have justified asylum for some JVP supporters a decade or so ago but it does not do so today. The nature of the applicant's involvement in the JVP was very limited and was of no adverse interest to the authorities. There is nothing before me to indicate that it would become so if she were to resume her support for the party after her return.

4 The Notice of Appeal filed on 12 August 2005 alleges an error of law on the part of the Federal Magistrate as follows:

PARTICULARS

I disagree with the decision of his Honour that there is no reasonable course [sic] of action and will provide detailed particulars when I receive a copy of the decision of the Federal Magistrate McInnis dated 26 July 2005.

(b) There was procedural error in the Court’s decision constituting an absence of natural justice which was also a jurisdictional error.

PARTICULARS

I repeat the particulars as above.

This notice of appeal does not provide any proper basis for criticism of the decision of the Federal Magistrate.

5 The appellant filed a written outline of submissions on 11 October 2005 which state:

10. The tribunal is wrong when its says it does not accept that there were threatening letters and telephone calls or that the vandalism of my salon occurred. I say there is no evidence for the tribunal to come to this conclusion.

11. The tribunal is wrong when it says "if the applicant were to support the JVP in some public way upon return, there is a chance that she could particularly at election times, be caught up in election related violence. The thuggery and the intimidation which is not uncommon in Sri Lankan political life, while no doubt frightening generally does not in my view exhibit the serious detriment or disadvantage necessary for conduct to be regarded as persecutory within the meaning of the Refugees Convention." I say that the mistreatment I have suffered at the hands of anti JVP supporters amounts to persecution within the meaning of persecution as defined.

12. The Tribunal is wrong when it say there is no credible evidence that the applicant had come to any such harm in the past because of her claimed support for the JVP. I have provided the tribunal with details of the harm I suffered.

13. The Federal Magistrate has come to the conclusion that the RRT has not made any errors and I disagree with that conclusion. The Federal Magistrate is wrong when he concludes that he cannot see any error of law revealed in the reasoning process of the RRT in reaching the conclusions. I disagree that these findings of the Federal Magistrate were open to it on the material before it.

6 In paragraph 10 it is asserted that there was no evidence to support the conclusion that the appellant did not suffer harassment from threatening letters, telephone calls or vandalism of her beauty salon. This assertion is misconceived. The Tribunal rejected these incidents on the basis of its earlier finding of the limited extent of the appellant's involvement with the JVP and independent information about the conduct of politics in Sri Lanka. This conclusion followed from the assessment of the credibility of the appellant against the background of the country information before the Tribunal. No jurisdictional error is disclosed in the Tribunal's conclusion on this matter.

7 In paragraph 11 the appellant disputes the Tribunal's conclusion that the violence which may be suffered by JVP supporter of her limited involvement would amount to persecution within the meaning of the Act. The passage which is criticised by the appellant contains a qualitative judgment about the extent of harm and must be seen against the Tribunal's discussion of the law earlier in the decision. There is no relevant error disclosed on this issue.

8 The appellant made a short oral submission in which she complained that the Tribunal had not accepted what she said and had based its decision on country information without regard to her special situation. Again, no jurisdictional error on the part of the Tribunal is established on this issue.

9 The appeal will be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 2 December 2005

Counsel for the Applicant:	The Applicant was self represented.
Counsel for the Respondent:	Miss S Moore
Solicitors for the Respondent:	Elaine Wons & Emily Nance
Date of Hearing:	2 December 2005
Date of Judgment:	2 December 2005