Case: MZXRN v Minister for Immigration and Anor [2008] FMCA 729
Outcome: affirmed
This appeal is from a judgment of the Federal Magistrates Court of Australia in MZXRN v Minister for Immigration and Anor [2008] FMCA 729 , delivered on 14 April 2008. The learned federal magistrate dismissed an application by the appellant seeking to overturn a decision of the Refugee Review Tribunal ("the Tribunal"), made on 30 May 2007 and delivered on 8 June 2007. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, now the Minister for Immigration and Citizenship, (in both cases, "the Minister") to refuse to grant to the appellant a protection visa. 2 The appellant is a citizen of Sri Lanka. Relevantly to the present case, he arrived in Australia on 25 July 2006, in possession of a visa entitling him to visit Australia for three months. On 7 September 2006, the appellant applied for a protection visa. By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as "Protection Visas." A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 . It is convenient to call those two instruments, taken together, "the Convention." For present purposes, it is sufficient to note that the Convention provides that Australia has protection obligations to any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country 3 The appellant claimed that he had a well-founded fear of persecution because of his political opinion, if he should return to Sri Lanka. In support of his application for a protection visa, and of his application to review the decision of the Minister's delegate, the appellant provided a very substantial amount of detailed information. He claimed to have been an active member of an opposition political party known as the UNP in Sri Lanka, whose members have been persecuted by the Peoples Alliance, a party in government. The information he supplied included accounts of incidents in which the appellant claimed to have been beaten severely and to have received threats of death to himself, his wife and his son. It is fair to say that if all of his evidence had been accepted, the appellant would have been entitled to a protection visa. 4 The Tribunal did not accept all of the appellant's evidence. It accepted that he had the sort of detailed knowledge that supported his claim to have been actively involved in the UNP. The Tribunal did not accept that the appellant had suffered the assaults that he claimed, or that he had received the threats that he claimed. In part, this was because, in making his application for his visitor's visa and in making his application for a protection visa, the appellant had concealed information about his previous visits to Australia. On one of those visits the appellant had lived in Australia for three years during a period in which he claimed he was living and working in Sri Lanka. The Tribunal did not accept the appellant's explanations for this non-disclosure. In addition, the Tribunal found that documents presented to the Tribunal by way of supporting the appellant's case as to the assaults he claimed to have suffered were substantially less than ought to have been available in the Tribunal's view. Again, the Tribunal did not accept the appellant's explanation for the absence of detailed information of a medical nature. The Tribunal also found that there were a number of other inconsistencies in the account that the appellant gave. 5 In the result the Tribunal found that the appellant had not experienced persecution in the past for reasons of his political opinion. It found that there was not a real chance of persecution in Sri Lanka in the foreseeable future for a Convention reason. The Tribunal considered that the appellant's claims were not genuine, but that he had attempted to fashion his political background into a refugee claim for the purpose of securing a right to live in Australia, which he had previously failed to achieve.