FEDERAL COURT OF AUSTRALIA

MZYED v Minister for Immigration and Citizenship [2009] FCA 1433 

MIGRATION - appeal against Federal Magistrates Court – appeal dismissed 

 

 

MZYED and MZYEE v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 697 of 2009

KENNY J
3 December 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	
VID 697 of 2009	

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA	

BETWEEN:	MZYED
First Appellant

MZYEE
Second Appellant

AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	KENNY J	
DATE OF ORDER:	3 December 2009	
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. 
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY
general division	
vid 697 of 2009	

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA	

BETWEEN:	MZYED
First Appellant

MZYEE
Second Appellant

AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	KENNY J	
DATE:	3 December 2009 	
PLACE:	MELBOURNE	

REASONS FOR JUDGMENT
1		This is an appeal from a judgment of the Federal Magistrates Court delivered on 7 September 2009, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). 
2		The appellants did not appear at the hearing today.  In the circumstances, I considered it appropriate to proceed with the hearing pursuant to O 52 r 38A(1)(d) of the Federal Court Rules.  I noted that this is the second time that this matter has been listed for hearing in this Court.  Shortly before the matter was to come on for hearing on Monday, 16 November 2009, the Court was informed that the appellants were unable to attend the hearing that day because the first appellant (who is the principal claimant) was ill.  On Saturday, 14 November 2009, the first appellant had faxed a letter to this effect, accompanied by a medical certificate stating that he was “unfit for his/her normal work” from 15 November 2009 to 18 November 2009”.  At the appellants’ request an adjournment was granted and today set as the new hearing date.  In the meantime, the Court sent to the appellants a notice of the new listing of the hearing of the appeal, specifying the date, time and place.  The Court has received no further communication from the appellants.  There is nothing to indicate that the appellants are unaware of today’s hearing.
3		At the hearing, counsel for the first respondent relied on her written submissions.  I indicated that having read these submissions and the appellants’ contentions, I would dismiss the appeal and that I would provide reasons later today.  These are my reasons for dismissing the appeal.
4		Before detailing these reasons, however, I note by way of background that the Tribunal found that the appellants are a married couple and citizens of Sri Lanka.  They arrived in Australia on 15 August 2008, each holding a visitor visa.  On 11 September 2008, they lodged an application with the first respondent’s Department for protection (class XA) visas.  Only the first appellant made substantive protection claims.  The second appellant’s application depended on the outcome of the first appellant’s application.  On 9 December 2008, a delegate of the first respondent refused the application. On 7 January 2009, the appellants applied to the Tribunal for a review of the delegate’s decision.  The Tribunal subsequently affirmed the delegate’s decision.  The appellants filed an application for judicial review in the Federal Magistrates Court, which was heard and dismissed on 7 September 2009.
5		The Tribunal’s decision record described the first appellant’s claims, as stated in a document attached to the protection visa applications and before the Tribunal.  In summary the first appellant claimed:
·	His family members have always been strong members and supporters of the United National Party (‘UNP’).  His father had a very close association with a number of politicians from the UNP, including Ravi Karunayake, a UNP MP, and Azath Salley, UNP Deputy Mayor of Colombo. 
·	His parents experienced problems after the UNP lost power in the 1994 elections, including threats, harassment and damages to the family home by supporters of the People’s Alliance (‘PA’).
·	The first appellant’s first real involvement in political campaigning took place in the elections in 2000.  The appellant attended meetings and rallies in support of the UNP, was involved in poster and pamphlet campaigns, made financial contributions to the party and donated a van for the UNP to use during the campaign.  PA supporters attacked the first appellant for providing this support.
·	After the UNP lost the 2000 election, PA supporters threatened and harassed the first appellant and his family.  His complaints to the police did not lead to any police action.  
·	When another election was held in December 2001, the first appellant again actively campaigned for the UNP and donated vehicles for its use.  Again, PA supporters threatened and harassed him. 
·	In the campaign for the general election (allegedly) in early 2003, the first appellant was again an active campaigner for the UNP and Mr Salley.  When the UNP lost the election, he again faced threats and his house was damaged.  His complaints to the police had no effect. 
·	In the Presidential elections in 2005, the first appellant was also an active campaign supporter and during this campaign he experienced extreme hostility from PA supporters.
·	In early 2008, while working with Mr Salley, the first appellant started receiving threats and property at his business was damaged. The first appellant feared for his safety as he believed the threats were those of PA supporters.
·	At the same time PA supporters spread false rumours that the first appellant had business dealings with sympathisers of the Liberation Tigers of Tamil Eelam (‘LTTE’) .  These rumours were fuelled by the fact that many of his customers were prominent Tamil businessmen.  As a result, the first appellant applied for a visa to Germany, but this application was refused.
·	In mid 2008, the UNP approached the first appellant to canvass support for the party in the elections for the provincial Council.  Very soon after this, the first appellant received threatening letters.  At the same time, rumours about his dealings with Tamil businessmen who were alleged LTTE sympathisers again spread. He feared for his life and made arrangements to leave Sri Lanka.
·	The first appellant fears persecution from PA supporters in Sri Lanka and he cannot obtain protection from the police.  He also fears that political opponents will try and link him with the LTTE because of his business dealings with the Tamil businessmen.
6		Further, the first appellant claimed before the Tribunal that:
·	After he started his own business in 2004, he was subjected to demands for money from his political opponents seeking political contributions. He did not go to the police because the police would not have taken his complaint.
·	During the general elections in 2001 he was beaten with an iron rod.
·	Recently (two months before the hearing) he had discovered that someone had forged a power of attorney in his name and tried to sell his property.  He believed that this was the work of his political opponents.
·	In 2007, the PA government had taken back land in Puttalam that had been allocated to him on a 30-year lease in 2003 because he was a UNP supporter.
7		In affirming the decision under review, the Tribunal drew the following conclusions and made the following findings.
 (a)	The Tribunal did not accept that the first appellant had a political profile such as to attract the harm that he had claimed.
(b)	The Tribunal accepted that the first appellant engaged in various election activities including the provision of vehicles, but did not accept that he suffered the harm claimed as a consequence, nor that he would be targeted for associating with Mr Salley.
(c)	The Tribunal found that the first appellant’s claimed involvement in the UNP in 2003 was not consistent with the fact that he was unaware that no general election had been held in 2003.  As a consequence, the Tribunal did not accept that the first appellant campaigned for the UNP and Mr Salley at that point; that his house was damaged; and that he faced threats and harassment because of his high profile support for the UNP.  Nor did the Tribunal accept that the first appellant made complaints to the police as he claimed.
(d)	The Tribunal found the claims that the first appellant would be imputed with a pro-LTTE stance and be regarded as a traitor for that reason were far-fetched and did not accept them.
(e)	The Tribunal found that the extortion suffered by the first appellant was not related to his political opinion but to the fact that he was in business.
(f)	The Tribunal found that the first appellant’s claim to have been beaten with an iron rod around the time of the 2001 elections was an embellishment of claims and did not accept it.
(g)	The Tribunal found, based on a lack of evidence, that the claimed forging of a power of attorney was not related to the first appellant’s support of the UNP or his real or imputed political work.
(h)	The Tribunal did not accept that the awarding and revoking of the lease of land was related to the first appellant’s claim for refugee status as it considered the awarding of the lease and revoking of it to be a legitimate administrative decision taken on the legality of the grant and did not accept that the first appellant had arranged for the lease to be in his father’s name. 
(i)	The Tribunal, while accepting that the first appellant was a supporter of the UNP and had participated in minor ways in a number of election campaigns, found that this involvement did not lead to a finding that the chance that he would be persecuted for his political opinion, now or in the reasonably foreseeable future, was real.
(j)	In relation to the claims of extortion in particular, the Tribunal found that, even if it were to accept that the first appellant would be again subjected to extortion, the evidence led the Tribunal to conclude that one or more of the Convention reasons would not constitute the essential and significant reason for such harm.
8		In their application before the Federal Magistrates Court, the appellants raised the following matters for consideration:
(a)	Whether the Tribunal applied the wrong test in relation to State protection.
(b)	Whether the Tribunal failed to discuss how the degree of State protection available in Sri Lanka could make fear of persecution at the hands of PA members/supporters an unfounded fear and whether the Tribunal failed to discuss Sri Lankan politics.
(c)	Whether the Tribunal took into account and placed too much weight on an irrelevant consideration, namely, the first appellant’s lack of knowledge about the 2003 election and whether the Tribunal failed to take into account relevant considerations, namely the fact that elections were held in 2000, 2001 and 2004.
9		The Notice of Appeal filed in this Court restated these three grounds, and the written contentions filed by the appellants in this Court were in the same terms as those filed in the Federal Magistrates Court.  Thus, in substance, the appellants contended that the learned Federal Magistrate had erred in not finding jurisdictional error.  This jurisdictional error was said to arise in the three ways referred to in [6] above.  These three contentions, referred to below as ‘grounds’, are discussed below.
Ground 1
10		The appellants argued that the Tribunal had misconstrued and misinterpreted Article 1A(2) of the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol, to the extent that it is picked up by virtue of s 36(2)  of the Migration Act 1958 (Cth), “in that the test is not whether the Sri Lankan government was unable or unwilling to protect the [appellant], but rather whether the [appellant] owing to a well founded fear is unable or unwilling to avail himself [of] the protection of the country”.
11		 The Federal Magistrate held that no question of state protection arose.  I agree.  The Tribunal did not accept that the first appellant faced a real change of persecution for a Convention reason.  The first respondent submitted that no error attended her Honour’s approach to this issue.  In the absence of a finding that an applicant for a protection visa has a well-founded fear of being persecuted for a Convention reason, there is no need to proceed to the question whether the applicant is unable or unwilling to avail himself of the protection of his country of nationality (or, if without nationality, the country of his former habitual residence.)   Accordingly, this ground fails.  No relevant error is disclosed.
Ground 2 
12		Further, the appellants contended that the Tribunal did not discuss how the degree of state protection available in Sri Lanka could make fear of persecution at the hands of the PA members or supporters an unfounded fear.  The appellants submitted that this disclosed error, because “it is well documented that politics in Sri Lanka is continuously marred by violence, particularly during election time”.  
13		The Federal Magistrate noted that the Tribunal did not rely on the degree of state protection in coming to its conclusion that the first appellant did not face a real chance of persecution.  This is correct.  The Tribunal’s findings are substantially to the effect that the first appellant did not have a significant involvement in politics in Sri Lanka, and for this reason did not face a real chance of persecution.  Further, it is plain enough from the Tribunal’s reasons that it did in fact have regard to country information that described the political situation in Sri Lanka, but that the first appellant failed because of the Tribunal’s assessment of the evidence and the first appellant’s credibility.   In the circumstances, it was unnecessary for the Tribunal to enter into a discussion of state protection and Sri Lankan politics during election times as urged by the appellants.  This ground also fails.  No error of the kind alleged is disclosed.
Ground 3
14		Finally, the appellants submitted that the Tribunal addressed a wrong issue when it placed significant weight on the fact that no general election had been held in 2003, and found that this discrepancy was not consistent with the first appellant’s claimed involvement with the UNP.  The appellants also stated that the fact the first appellant had mistakenly said 2003 instead of 2004 should not be fatal to his case.  
15		The Federal Magistrate found that this submission went to the merits of the protection visa application and that it was for the Tribunal to assess the facts before it, and to weigh the various items of evidence before it.  I agree with her Honour in this regard.  It was clearly open to the Tribunal to conclude that the first appellant’s involvement in politics was minor and not relevantly significant, having regard, amongst other things, to his mistake about there being a general election in 2003.  This ground also fails.   
16		No jurisdictional error is therefore disclosed in the Tribunal’s decision and no error is revealed in the Federal Magistrate’s judgment.  For these reasons, I dismissed the appeal.   The appellants should pay the first respondent’s costs of the appeal.  I indicated at the hearing that I would fix these costs, but, upon reflection, I consider that the preferable course is to order that the appellants pay the first respondent’s costs of the appeal, leaving the quantum to be agreed or fixed by a taxing officer. 
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.	

Associate:

Dated:	3 December 2009

No appearance by the Appellants	
		
Counsel for the Respondents:	Ms C Symons	
		
Solicitor for the Respondents:	Clayton Utz	

Date of Hearing:	3 December 2009	
		
Date of Judgment:	3 December 2009