M 33 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1565

FEDERAL COURT OF AUSTRALIA

M 33 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1565

MIGRATION – application for protection visa – appeal from a decision of the Federal Magistrates Court not to grant prerogative writs sought against a decision of the Refugee Review Tribunal – requirement that there be legal error in application for judicial review– whether the appellant raised any jurisdictional error or error of law in relation to the decision of the Refugee Review Tribunal.

Migration Act 1958 (Cth)

Plaintiff S157 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195 ALR 24, referred to

M 33 of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V 838 of 2003

GOLDBERG J
10 DECEMBER 2003

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 838 of 2003

BETWEEN:	APPLICANT M 33 of 2002 Appellant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	10 DECEMBER 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs of and incidental to 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	V 838 of 2003

BETWEEN:	APPLICANT M 33 of 2002 Appellant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent

JUDGE:	GOLDBERG J
DATE:	10 DECEMBER 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court of Australia (“the Magistrates Court”), dismissing an application for writs of prohibition and certiorari sought by the appellant in relation to a decision of the Refugee Review Tribunal (“the Tribunal”).  On 4 February 2002 the Tribunal affirmed the decision of a delegate of the Minister not to grant the appellant a protection visa.  Originally the application was filed in the High Court of Australia.  It was remitted to this Court, which remitted it further to the Magistrates Court, where the matter was heard on 14 August 2003. 

2. The appellant is a citizen of Sri Lanka.  He travelled to Australia on a transit visa, arriving on 5 February 2000.  On 7 February 2000 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 4 April 2002 that application was refused.

3. The appellant was born on 23 December 1970 and during his early years he achieved considerable sporting success.  He became interested in politics and the Tribunal accepted that he was a supporter the UNP, a Sri Lankan political party. 

4. In both his application for a protection visa and before the Tribunal, the appellant relied upon three matters which he claimed gave rise to his fear of persecution on the grounds of his political belief.

5. The first matter was that in 1997 his oldest brother was stabbed by a person in a group over an argument.  He claimed that the police did not investigate the matter properly and acted unreasonably.  He and his family complained to the investigation unit of the police department, but the police abused them.  However, the appellant’s evidence before the Tribunal was that the matter of the stabbing of his brother was being pursued in the courts. 

6. The second matter raised by the appellant was that after the presidential elections in December 1999 he received abusive and threatening telephone calls.  Although complaints were made to the police, they did not appear to be interested in investigating the matter.

7. The third matter the appellant relied upon was that in 1999 his father was appointed a justice of the peace, an event which surprised him and his family.  The appellant appeared to be arguing that this was some sort of situation designed by the government so as to make it appear, in the event anything happened to the appellant, that it was not an act of political revenge. 

8. The Tribunal made a number of findings.  First, it did not accept that the police acted unreasonably in relation to the stabbing of the appellant’s brother.  Secondly, it did not accept the claim that the father’s appointment as a justice of the peace was a method of legitimising the eventual elimination of the appellant.  Thirdly, for a number of reasons which the Tribunal set out, the Tribunal did not accept that the appellant had received threatening telephone calls. 

9. The Tribunal noted that the appellant had travelled extensively since 1993, but that at no time had he reported having sought protection from the countries he visited, even though these visits occurred after the beginning of his claimed political involvement in 1994. 

10. The Tribunal then looked at a body of country information available to it.  The Tribunal noted that violence continued to be pervasive in Sri Lanka, that some acts of violence were politically motivated and that at times the police still acted with impunity.  However, the Tribunal was not satisfied that the appellant had a high political profile.  In his reasons for decision, the Federal Magistrate quoted the Tribunal as saying (at [12]):

    “In fact the tribunal finds that he has no political profile to speak of.” 

    The Tribunal found that there was not a real chance that the appellant would be persecuted for his political opinion now, or in the reasonably foreseeable future, should he return to Sri Lanka.  It concluded that he did not have a well‑founded fear of persecution for a Convention reason (the Convention being the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.)

11. The Federal Magistrate summarised the facts which had been recorded by the Tribunal in relation to the appellant’s background.  He then identified the three matters which gave rise to the appellant’s claim to fear persecution for his political belief and summarised the Tribunal’s reasoning.  The Magistrate expressed his understanding of the basis of review of Tribunal decisions at [15] of his reasons:

    “The basis on which prerogative writ can be granted is jurisdictional error. Section 474 of the Migration Act contains a privative clause but in Plaintiff S157 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195 ALR 24 the High Court held that the proper interpretation of section 474 meant that it did not apply to jurisdictional error. There have been a number of decisions since that time, including SDAV v Minister (2003) FCAFC 129 in which the Full Court of the Federal Court has said that jurisdictional error is not limited to breach of natural justice, which was the issue in the High Court case, but covers wider grounds of jurisdictional error including those which are sometimes described as the Craig or Yusuf grounds; that is, failure to consider necessary matters, relevant matters or applying the wrong criteria, things such as that. What is axiomatic in these cases is that questions of fact are matters for the tribunal and unless there is some jurisdictional error in the way in which the tribunal has gone about its task of finding questions of fact, there will be no grounds for relief.”

    The Magistrate concluded that the matters raised by the appellant were no more than a revisiting of the facts.  The Magistrate therefore concluded that no error in the Tribunal’s approach had been demonstrated.  The Magistrate said at [21] and [22]:

    “The tribunal has rejected the review application on factual grounds.  It has examined each of the situations that the Applicant put forward as showing that he had a fear of persecution.  In two instances it has rejected his evidence and has not accepted that what the Applicant says occurred did occur.  In the other two instances it has said that they do not give rise to any basis for a fear of persecution.

    The application was rejected on the basis of findings of fact.  No error and certainly no jurisdictional error in the tribunal’s approach has been demonstrated.  The application is dismissed.  So for those reasons I have dismissed the application.”

12. In his notice of appeal the appellant raised the following grounds of appeal:

    “A.There was an error of law in the Court’s decision constituting a jurisdictional error.

    Particulars

    I will provide further particulars when I am provided with a copy of the decision of the Magistrate. 

    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.” 

13. On 1 October 2003 the appellant was ordered to file and serve particulars of his grounds of appeal on or before 3 November 2003, but he did not do so.  At the same time he was ordered to file and serve an outline of argument why the appeal should be allowed by 10 November 2003, but he did not do so. 

14. The Minister filed an outline of her submissions on 5 December 2003, which was sent by courier to the address of the appellant then known to the Minister.  The appellant claimed he had not received the outline, and was given a further opportunity during the hearing before this Court to consider and make further submissions in relation to the outline.  The appellant made a number of oral submissions to the Court today, and, although he was pressed to identify errors made by the Magistrate, whether jurisdictional or otherwise, he was unable to do so. 

15. The appellant’s real complaint is related to the Tribunal’s findings of fact.  By way of example, the Minister’s outline set out the Tribunal’s findings of fact, which the appellant raised and challenged.  He was critical of the evidence before the Tribunal and its factual findings and then submitted that the Magistrate had made his decisions on the findings of the Tribunal, but that those findings were not properly researched or were wrongly made. 

16. The jurisdiction of this Court on appeal is limited not only to errors of law, but is further restricted by the provisions of the Migration Act 1958 (Cth), in particular s 474. The powers of a Court, whether the Federal Court or the Magistrates Court, on review of a decision of the Tribunal, is in general terms limited to situations where jurisdictional error can be established: see Plaintiff S157 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 195 ALR 24.

17. The appellant has not disclosed any grounds which would warrant interference with the decision of the Magistrate.  The decision to be made by this Court does not involve a consideration of the nature or content of jurisdictional error or a denial of natural justice, because no such ground has been raised.  The appellant may be dissatisfied with the findings of fact of the Tribunal, but he did not suggest that the process and procedure of the Tribunal or the Magistrates Court had denied him the opportunity to put his case.  Accordingly, the appeal will be dismissed with costs. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:             23 December 2003

Counsel for the Applicant:	The appellant appeared in person
Counsel for the Respondent:	Mr G Gilbert
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	10 December 2003
Date of Judgment:	10 December 2003