MZXEV v Minister for Immigration and Citizenship [2008] FCA 186 (29 February 2008)

Last Updated: 5 March 2008

FEDERAL COURT OF AUSTRALIA

MZXEV v Minister for Immigration and Citizenship [2008] FCA 186

MZXEV, MZXEW AND MZXEX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
VID 779 OF 2007

SUNDBERG J
29 FEBRUARY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 779 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZXEV First Appellant MZXEW Second Appellant MZXEX Third Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	SUNDBERG J
DATE OF ORDER:	29 FEBRUARY 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants 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 779 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZXEV First Appellant MZXEW Second Appellant MZXEX Third Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	SUNDBERG J
DATE:	29 FEBRUARY 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The appellants, who are husband, wife and son, are citizens of Sri Lanka who arrived in Australia on 28 December 1998. On 8 February 1999 they applied for protection visas. A delegate of the first respondent (the respondent) refused the application. The appellants unsuccessfully applied to the Refugee Review Tribunal for a review of that decision. Their application for review by the Federal Magistrates Court was dismissed. They now appeal to this Court. Pursuant to s25(1AA) of the Federal Court of Australia Act 1976 the appeal is heard by a single judge.

2 The essence of the appellants’ claim before the Tribunal was of an alleged fear of persecution due to the first appellant’s active support for the Sri Lankan Freedom Party (SLFP). He said he had been threatened, attacked and beaten by supporters of the United National Party (UNP). The first appellant also claimed that his family had been subjected to numerous threats and attacks, and fled to Australia out of fear of a more serious attack. Additionally, he claimed to fear persecution as a Christian in Sri Lanka and on account of his Burgher/Tamil ethnicity. The Tribunal did not accept the appellants’ claims due to their vague, inconsistent and unconvincing evidence.

3 The Federal Magistrate held that it was clearly open to the Tribunal to reach the conclusion that it did, and was not satisfied that the appellants had established a ground for judicial review.

4 The Notice of Appeal asserts that the Magistrate’s decision was made without jurisdiction, and/or is affected by jurisdictional error. There are no particulars. The appellants were represented by counsel before the Magistrate but not in this Court. In the circumstances it is appropriate to treat them as relying on the grounds particularised in the amended application before the Federal Magistrate, which were drafted by counsel.

Ground 1: religion (no evidence)

5 The first ground is that:

The Tribunal stated that it did not accept "that there is anything more than a remote chance that the applicant would suffer serious harm amounting to persecution by reason of his religion" when there is no evidence for the finding that the chance is "remote".

6 The Tribunal first dealt with and dismissed the claim based on the first appellant’s support for the SLFP. It went on at page 25:

The applicant also claims that, as a practising Christian, he would be exposed, should he return to Sri Lanka, to serious harm for that reason. Certainly country information (noted above) refers to an increase in harassment of Christians and attacks on their property and places of worship by Buddhist extremists. I accept that the applicant is a practising Christian and a member of the Roman Catholic Church. He says that part of his obligation as a Christian is to convert people to his faith and I note his former connection with the YMCA. I accept that that is so, and I accept that the country information referred to suggests that Buddhist extremists are antipathetic to members of churches who seek to convert Buddhists to Christianity. I do not accept, however, that there is anything more than a remote chance that the applicant would suffer serious harm amounting to persecution by reason of his religion should he return to Sri Lanka now or in the reasonably foreseeable future.

7 In order to understand the import of the last sentence in this passage, it is necessary to appreciate the way in which the appellants put their overall case. They said they feared persecution based on the first appellant’s political opinion, his race and his religion. The primary claim was political opinion; his involvement with the SLPF. He said he suffered persecution in the form of threatened harm conveyed in frequent and anonymous telephone calls, and that he had been assaulted on two occasions. As to race, the Tribunal said he did not specifically claim he was targeted because of his mixed Burgher and Tamil ethnicity, but said it was part of the reason he was targeted for his political activities. The Tribunal said that his religion claim went hand in hand with his ethnicity claim rather than as a discrete basis of claim. Thus, as the Tribunal said, the three claims were interconnected.

8 The Tribunal first dealt with the political opinion claim. It gave detailed reasons for rejecting it. It said at page 25:

With respect to each of these alleged activities, the applicant’s evidence is, if not vague, at least at a very high level of generality – a level which I find is not consistent with a person who has actually been involved in a political campaign. To that extent, I found the applicant’s evidence unconvincing.

9 The Tribunal noted that the first appellant disavowed any interest in the local elections held between the 1994 Presidential and Parliamentary elections and his departure from Sri Lanka, and continued:

He did not distinguish between council and provincial elections, as I consider he would have done had he a close interest in the political success of the [Peoples Alliance] as against the UNP in his area and demonstrated only a very general appreciation of the outcome of such elections. Nor did the applicant identify any circumstances relevant to his claimed activity of assisting the bringing to justice of UNP supporters.

10 The Tribunal accepted that the first appellant was a SLFP supporter, but did not accept that he had more than a limited or peripheral involvement in the SLFP. In particular it concluded that he was not a person of significance engaged in the organisation of canvassing or other activities engaged in by the SLFP. The Tribunal continued:

That being so, I do not accept that the applicant was a person who was likely to have come to the adverse notice of the UNP, more particularly as a person to be singled out for special attention. I note that the applicant does not assert that any other member of his group attracted adverse attention from UNP supporters or anyone else and I infer from the evidence of the applicant that he was the only person who was subject to harassing telephone calls and to assaults .... Given what I have found to be the applicant’s level of involvement in political activity, I do not accept that the applicant would have been singled out for harm. In his evidence, the applicant appeared to accept this proposition ....

11 The Tribunal then considered country information about Burghers, and continued:

But even if it were the case that the applicant might be liable to persecution because of his ethnicity and/or religion, I do not accept that he was harassed by repeated telephone calls. Quite apart from the fact, as I have found, that the applicant’s level of political activity was low profile and as such (whether he was Burgher and Catholic or not) it would be unlikely to provoke the level of harassment claimed, I do not accept that a would-be harasser or group of them would make 3 or 4 telephone calls a day to the applicant’s home, and more to his place of work, for the approximate period of 4 years from 1994 to 1998.

12 On pages 22 and 23 of its reasons the Tribunal went on to say that had the first appellant been harassed by repeated telephone calls, he would surely have taken steps to ensure that the calls were avoided, such as by changing his telephone number. The Tribunal then said:

What, in my opinion, fundamentally undermines the applicant’s case on this point is his statement that, after he moved, the calls continued to be received. That evidence is inconsistent with his assertion that there were delays of one or two years in having the telecommunications provider disconnect and reconnect or provide new telephone numbers. The applicant claimed that the calls continued at his rented accommodation. It was only after I pointed out that his telephone had been connected at a different address that he stated that he had not had a telephone for 2 or 3 weeks and that he had been able to have his telephone service connected to his new address within that period. I find that the applicant did not receive harassing or threatening telephone calls as he claimed.

13 The Tribunal then said (at page 23) that even if, contrary to its view, the appellants received the calls claimed, they did not constitute or presage serious harm:

The threats alleged are of a very vague and imprecise kind and were not threats of immediate and particular harm. The callers were unidentified .... There is no identifiable link between the claimed threats and the two assaults the applicant claims to have suffered, in the sense that there was any identification or directness in the threats immediately prior to the claimed assaults.

14 The Magistrate dismissed the first ground of review (no evidence for the remoteness finding) as follows:

31. As with the previous point, there were no specific incidents or allegations of fact for ... the Tribunal to make findings upon. The Tribunal accepted that the applicant and his wife were Catholics. It was not suggested that they had been the subject of persecution in the past, nor was there detail before the Tribunal of the precise conduct that the applicant and his wife said that they had engaged in [in] Australia or were likely to engage in on return to Sri Lanka. ...

32. In the context of this material it is difficult to see what further reasons the Tribunal member could give. ... There is no evidence of specific persecution of them as a result of their religion, but generalised fears of return to Sri Lanka based upon country information outlined by the Tribunal. The Tribunal outlined the relevant evidence and reached a conclusion as to whether or not they were likely to be persecuted.

33. It appears to me to be an error of reasoning to attempt to apply cases relating to findings by Tribunals in the absence of an evidentiary basis with the failure of a Tribunal to find certain circumstances occurred - that is, a lack of satisfaction - where it is for the Tribunal to assess the weight that they place upon evidence before them. Whilst there may be some cases where the evidence before the Tribunal is so overwhelming that detailed and cogent reasons would be required before rejecting it, this case could not possibly fall in to such a category.

34. The same argument applies with respect to the claims that the Tribunal ought not to have found that the risks to the applicant were remote. The relevant evidence was identified by the Tribunal. There was little evidence for them to make an assessment upon. The Tribunal gave reasons commensurate with the level of detail of the material before them.

15 What the Magistrate said in [33] and [34] above is correct. The point can usefully be expressed in my own language. The Tribunal must first find the facts by identifying what parts of an appellant’s case it accepts and what parts it rejects. Where, as in the present case, it does not accept central aspects of that case, it is entitled to say, as it did, that there is only a remote chance that the applicant will suffer serious harm. There is no occasion to identify evidence for that finding. It is because the evidence propounded in support of such a finding has not been accepted that the risk is remote.

16 No error can be found in his Honour’s treatment of this ground.

Ground 2: religion (illogicality)

17 The appellants challenged the Tribunal’s finding that there was only a remote chance that the appellants would suffer serious harm amounting to persecution by reason of his religion on the basis that the finding was irrational and illogical.

18 As appears from the discussion of Ground 1, the conclusion that there was no more than a "remote chance" that the first appellant would suffer persecution is both rational and logical based on the findings earlier in the reasoning; see pages 22 and 24 of the Tribunal’s decision.

19 As the Magistrate said, the first appellant did not claim to have experienced any previous harm on account of his religion. Having regard to the Tribunal’s rejection of key parts of his claims, it was plainly open to it to find that the chance of him experiencing religiously-motivated persecution in future was remote. As appears from the earlier discussion, the claim that the Tribunal did not make findings adverse to the applicant on the religion ground, other than its acceptance that he was a practising Christian who is obliged to convert people to his faith, is simply wrong. See [6] to [15].

20 The claim that the Tribunal’s decision was not based on rational or logical foundations must be rejected.

Section 430

21 Although the appellants did not plead a failure to comply with s 430 of the Migration Act 1958 (Cth) in their amended application, the Magistrate entertained it. The contentions were that the Tribunal:

• failed to set out findings on the material questions of fact as to whether the attacks in Sri Lanka constituted (or could constitute) "persecution": s430(1)(c);

• failed to set out findings on material questions of fact leading to its conclusion that the chance was "remote" that the applicant "would suffer serious harm amounting to persecution... should he return to Sri Lanka...": s430(1)(c); and

• failed to refer to the evidence or any other material on which it based the finding of fact that the chance was "remote" that the applicant "would suffer serious harm amounting to persecution... should he return to Sri Lanka...": s430(1)(d).

22 Section 430 provides:

430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based.

23 The Magistrate dealt at length with the authorities on this section, and it is not necessary to repeat the exercise. At [26] and [27] of his reasons his Honour dealt with the dot points quoted at [21] above:

With respect to the first dot point of counsel’s [written] argument, there is no reason for the Tribunal to make findings that any particular conduct referred to in country information is ‘persecution’ in the abstract. The meaning of ‘persecution’ requires a consideration of the impact of conduct upon the applicant. In this case there was no suggestion of particular conduct that the applicant claimed would be directed at him.

The second and third matters that the applicant is critical of are the Tribunal’s findings that any chance of persecution was remote. He said that the Tribunal ought to have made findings on material questions of fact which would allow it to then make a finding as to remoteness.

24 The Federal Magistrate indicated at [31] that "were no specific incidents or allegations of fact for the Tribunal to make findings upon". Moreover, the incidents alleged by the appellants (such as the threatening phone calls) were not accepted by the Tribunal. The reasons for this are made clear earlier in this judgment.

25 The s 430 arguments are effectively disposed of by the lack of specificity in the appellants’ evidence and the Tribunal’s rejection of important parts of it. This view is reinforced at [32] where his Honour stated that there "is no evidence of specific persecution of [the appellants] as a result of their religion, but generalised fears of return to Sri Lanka based upon country information outlined by the Tribunal". No error has been shown in the approach taken by the Federal Magistrate.

Conclusion

26 The adverse findings made against the appellants were determinative of the matter before the Tribunal. The Tribunal had the advantage of seeing and hearing the first appellant give evidence. It explained why it did not believe him. As a result of the Tribunal’s findings, it was not satisfied that the appellants faced a real chance of persecution should they return to Sri Lanka now or in the foreseeable future. The findings and conclusions of the Tribunal were clearly open to it, and the Magistrate correctly so held.

27 None of the grounds of appeal has been made out, and the appeal must be dismissed.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated: 29 February 2008

The first appellant appeared in person.

Counsel for the Respondent:	W Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 February 2008
Date of Judgment:	29 February 2008