M136 of 2002 v Minister for Immigration
[2004] FMCA 120
•17 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M136 of 2002 v MINISTER FOR IMMIGRATION | [2004] FMCA 120 |
| MIGRATION – Application for review of a decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa – whether the Tribunal’s decision was affected by jurisdictional error by not correctly interpreting and applying the Convention definition of persecution in section 91R of the Migration Act 1958 – whether the Tribunal failed to take into account some relevant considerations or took into account irrelevant considerations in making its decision – no jurisdictional error established – application dismissed. |
Migration Act 1958 (Cth), ss.36(2), 65(1), 91R, 474
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), Schedule 2
Minister for Aboriginal Affairs v Peko Wallsend Limited (1985) 162 CLR 24
Yusuf v Minister for Immigration & Multicultural Affairs (2001) 206 CLR 323
Chen Shi Hi v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293
Applicant A v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225
Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1
Minister for Immigration & Multicultural & Indigenous Affairs v Cord (2002) FCA 334
Prahastono v Minister for Immigration & Multicultural Affairs (1977) 77 FCR 260
Plaintiffs S157/2002 v Commonwealth (2003) 195 ALR 25
Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134 of 2002 (2003) 195 ALR 1
| Applicants: | M136/2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 406 of 2003 |
| Delivered on: | 17 June 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 17 February 2004 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: | Ruwan Samarakoon |
| Counsel for the Respondent: | Dr Donaghue |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
THAT the Application be dismissed.
THAT the Applicant pay the Respondent’s costs fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ406 of 2003
| M136/2002 |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
By their amended application the applicants seek, pursuant to s.39B of the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) ("the Act"), orders for certiorari and mandamus and prohibition in relation to a decision of the Refugee Review Tribunal ("the Tribunal").
The applicants are wife and husband and their 18 year old daughter. They are citizens of Sri Lanka. The husband arrived in Australia on
15 July 2000 while the applicant wife and daughter arrived on 25 August 2000. On 28 August 2000 they lodged an application for protection (class A) visas under the Act. On 4 October 2000 a delegate of the Minister for Immigration ("the Minister") refused to grant the protection visas and on 23 October 2000 the applicants applied for a review of that decision. The decision of the Tribunal dated 17 June 2002 affirmed the decision of the Minister's delegate not to grant the applicants protection visas.
The applicants filed an application to the High Court on 30 July 2002 which was subsequently remitted to the Federal Court and transferred to the Federal Magistrates Court for hearing. An amended application was lodged on 12 September 2003.
Background
The applicants are wife, husband and their daughter. They are of Dutch Burgher ethnicity and are citizens of Sri Lanka. The applicant wife ("the primary applicant") and daughter arrived on 25 August 2000 and the husband arrived on 15 July 2000. They arrived in Australia on valid Sri Lankan passports with tourist (short stay) visas.
On 14 June 2002 the Tribunal conducted a hearing and heard oral evidence from the applicants.
The applicants claims before the Tribunal
When making its decision the Tribunal had before it the department's file which included the protection visa application and the department's decision record. The applicant sets out the applicant's claims. These were expanded upon by the applicants in their evidence before the Tribunal and in a written statement by the primary applicant.
The applicants' claims before the Tribunal can be summarised as follows:
a)On 7 June 200 there was a suicide bomb attack by the Liberation Tigers of Tamil Elam ("LTTE") in which a Minister, Mr Gooneratne, and a number of others were killed. The incident occurred opposite Soysa Pura flats ("the flats") in Moratuwa where the applicants lived. Three of the LTTE people responsible for the attack sought refuge in the flats before being arrested elsewhere;
b)The army and or the police, which had regularly searched the flats before the blast, intensified their searching after the bombing and also visited the applicants' flat more often than the others. The applicants were subjected to unexpected visits and interrogations at all hours of the night suggesting to the applicants that they were suspected of harbouring members of the LTTE;
c)The regular checking of the applicants was linked to the fact that the applicant husband had, before the bombing, assisted a Tamil neighbour who was arrested on suspicion of being a Tamil terrorist. The applicant husband signed for the person's release from police custody;
d)The applicants' neighbours were suspicious that the applicant husband was a terrorist sympathiser. He got into a fight with some local Singhalese people. Malicious remarks were often made to him. The applicants believed that he was under surveillance. After arriving in Australia, he was told that if he returned to Sri Lanka he might be attacked by the local Singhalese;
e)The primary applicant and her husband fear for the safety of the applicant daughter. She won a beauty pageant on 25 June 2000 and had been the subject of harassing telephone calls and visits by strangers possible posing as army and policemen;
f)The applicants' empty flat had been burgled;
g)The applicants absence from Sri Lanka would give further reason to the local Singhalese population to suspect them of being terrorist, and should another terrorist attack occur;
h)The applicants are unable to seek assistance from police because they are involved with the Sri Lanka army in searching the applicants' premises. Furthermore, as there are very few Dutch Burghers left in Sri Lanka it is unclear whether they would be protected by the authorities.
The Tribunal's reasons for decision
The Tribunal set out its decision and reason in writing. In addition to considering the applicants' claims the Tribunal considered relevant independent country information about Sri Lanka.
The Tribunal accepted that the applicants are of Dutch Burgher ethnicity but also found no evidence that Burghers are persecuted in Sri Lanka by reason of their ethnicity.
In relation to the visits on the applicants by the army, the Tribunal found the checking of the applicants prior to the bombing was not regarded by the applicants as anything more than a "nuisance". Similarly, it found that the intensified checking after the blast was nothing more than what would follow a violent terrorist attack in which a government Minister and others died.
It did not regard that the checking by the authorities that the applicants experienced could reasonably be regarded as persecution. It found that because it was the LTTE which undertook terrorist acts, it is Tamils who are likely to face questioning and interrogation in that regard.
The Tribunal did not accept that the applicant husband or the family had been suspected by the authorities or anyone else of assisting the LTTE, or harbouring members of the LTTE. It considered that had the family been so suspected, then at any time, or at any time after the applicant husband had assisted the Tamil neighbour four years ago, he would have been taken into custody and questioned. The Tribunal found that the fighting in which the applicant husband was involved was a fight between two sides rather than an attack on the applicant husband.
In relation to the claims that the applicants would be persecuted upon their return to Sri Lanka, the Tribunal considered the chance that the primary applicant or the applicant husband could be suspected of helping the Tamil cause if they were to return. It found that there was not a real chance the applicants would be faced with treatment amounting to persecution if they were to return to their flat.
The Tribunal did not consider that the report of burglary was indicative of persecution, rather it was nothing more than an ordinary crime.
The Tribunal found the harassment experienced by the applicant daughter did not constitute serious harm (within the meaning of the Act).
The Tribunal found that there was not more than a remote chance that the applicants could be harmed in a bombing or other terrorist act carried out by the LTTE. Even if the applicants were so harmed, it would lack the selective quality necessary for the harm to be regarded as persecutory.
The legislative framework
Section 65(1) of the Act provides that a visa may only be granted if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criterion for a protection visa are set out in s.36(2) to be that the applicant must be a non-citizen in Australia to whom the respondent is satisfied Australia has protection obligations under the Refugees Convention and in Schedule 2 to the Migration Regulations 1994 (Cth).
Article 1A(2) of the Refugees Convention defines a refugee as:
"owing to a 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 or herself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable, or owing to such fear, is unwilling to return to it."
Section 91R of the Act provides:
"(1) for the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)That reason is the essential and significant reason, or those reasons are the essential and significant reasons for the persecution; and
(b)The persecution involves serious harm to the person; and
(c)The persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of the paragraph 1(b), the following instances of serious harm for the purposes of that paragraph:
(a)a threat to the person's life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person's capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person's capacities to subsist;
(f)denial of capacity to earn a livelihood of any kind, or the denial threatens the person's capacity to subsist.
The decision in this case is subject to s.474 of the Act which validly operates to prevent the judicial review of all decisions under the Act except those vitiated by jurisdictional error (see Plaintiffs S157/2002 v Commonwealth of Australia (2003) 195 ALR 25 ("S157"); Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134 of 2002 (2003) 195 ALR 1 ("S134"). If it is affected by jurisdictional error it is not a decision under the Act and it is therefore not protected by the privative clause regime.
In SDAV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 129 the Full Court, comprising Hill, Branson and Stone JJ, said that:
"[27] The statement that a particular error is a "jurisdictional error" is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff 157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult, but, either way an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made "within jurisdiction". If it does not fall within the decision maker's lawful authority and the error is a "jurisdictional error" and as such cannot be a valid action or decision. …
[30] … the legislature may grant wide or narrow jurisdiction and the scope of jurisdictional error will vary correspondingly. In construing the statute to determine the scope of the jurisdiction granted, due regard must be had to the intention of the legislature in enacting the privative clause. In Plaintiff S157, the High Court … noted that an effect of the section might be that "some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of a decision"…
[33] It must be emphasised that the aim of the process of reconciliation is to determine whether the impugned act is within the jurisdiction granted by the Migration Act. As such the process does not distinguish between jurisdictional error and are not protected by the privative clause. It distinguishes between errors that are jurisdictional error and those that are not jurisdictional error.
The applicants claims
In the amended application for an order for review dated 11 September 2003 the applicants alleged that:
a)The decision was affected by jurisdictional error because the Tribunal failed correctly to interpret and apply the definition of refugee in Article 1A(2) of the Refugees Convention and s.91R of the Act; and
b)The Tribunal failed to take into account some relevant considerations or took into account irrelevant considerations in making the decision.
It is plain that the submissions of the applicant are that both of these errors are jurisdictional error that are reviewable notwithstanding s 474 of the Act.
Alleged error in the definition of "refugee"
The applicants contend that the Tribunal erred in failing to take into account a relevant consideration by
i)not considering their claims that their residence was checked more frequently than other units; and
j)therefore did not consider whether that could constitute "significant physical harassment" and therefore "serious harm" for the purposes of s.91R of the Act.
Further, the applicants contend that the Tribunal erred in failing to find that the intensified checking did not constitute "significant physical harassment" and therefore "serious harm".
The applicants further contended that the Tribunal erred in failing to find that the burglary of the applicants' empty flat constituted persecution under s.91R.
The applicants complained about the Tribunal's interpretation or application of the definition of "refugee" relates to the terms "persecution" and "serious harm", those terms both being partially defined in s.91R of the Act. They contend that the Tribunal should have found that the police intrusions and checking (that it accepted had occurred) were sufficient to constitute persecution. They also contend that the Tribunal should have found that the burglary of the applicants' unoccupied flat after they left Sri Lanka constituted persecution.
Conclusions
The applicants have not explained how the Tribunal misunderstood the meaning of "persecution" or "serious harm". They have simply pointed to the Tribunal's findings and suggested that those findings reveal error. For example in relation to the assertion that the Tribunal failed to find the burglary of their flat constituted persecution it is untenable. There was no basis upon which the Tribunal could have concluded that a burglary of an empty flat, which occurred after the applicants left Sri Lanka, occurred for a Convention reason. It was reasonable for the Tribunal to find, as it did, that it was more likely that it was simply an ordinary criminal act.
The question of whether particular harm that an applicant has suffered is sufficiently serious to amount to persecution is ultimately a question of fact and degree for the Tribunal to assess. Courts have repeatedly held that they will not interfere with the Tribunal's assessment in that regard because, even if the Court disagrees with the assessment, no error of law is involved (see Minister for Immigration & Multicultural & Indigenous Affairs v Cord (2002) FCA 334, at [3] per Heerey J). In Prahastono v Minister for Immigration & Multicultural Affairs (1977) 77 FCR 260 at [268], per Hill J said:
"The final error alleged was that it was not open to the Tribunal to hold that the discrimination, harassment and ostracism experienced by the applicant amounted to persecution.
As I have already noted, where there is a matter of fact and degree involved, as there almost invariably will be when the question arises whether particular conduct amounts to persecution, the Tribunal will be the final arbiter."
It is plain that the concept of "persecution" requires conduct that causes "serious harm" to a refugee applicant. That requirement now finds statutory expression in s.91R of the Act and the section provides examples of the type of harm that can constitute "serious harm". Even prior to the enactment of s.91R, it would be difficult to see how the conduct of which the applicants complain would have constituted persecution. As McHugh J pointed out in Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at [55]:
"The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purposes of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selected harassment or pursuit, selected harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution."
The Tribunal found that the intensified checking of the applicants' flat (which was situated in a block of flats across the road from a suicide bombing in which a Minister was killed) was no more than normal government response to a terrorist attack. The Tribunal apparently understood that the fact that security checks were conducted at least in large part for legitimate security purposes meant that they could not constitute persecution. In Applicant A v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225 McHugh J said at [258]:
"Conduct will not constitute persecution … if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. Legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the state and its citizens.
This decision was approved in Chen Shi Hi v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 at [28].
It does not appear to be disputed that most of the security checks involving the applicants also including checks of other tenants. The only evidence that security checks against the applicants were more frequent than against other residents was their claim to "believe" that to be the case[1]:
After the June 2000 bombing the normal practice of checking intensified and the applicants believed they were visited more frequently than others at this time.
[1] See Court Book, page 99.
But even if the applicants' flat was checked more frequently than others that would not have supported a finding that they were persecuted. They would have needed to show, in addition, that the "essential and significant reason" for the additional checks was a Convention reason. It is difficult to see how they could have discharged that burden. The Tribunal found that the applicants did not have an imputed political opinion as Tamil sympathisers nor were they discriminated against by reason of their race.
Furthermore, the applicants' own evidence suggested an alternative explanation for the additional checks. The explanation offered was that the applicant daughter had recently won a high profile beauty pageant and people wanted to see her. The Tribunal found that checks carried out for that reason would not constitute persecution however unwelcome the attention may have been. A significant finding of the Tribunal was that the intensified checking was not more than what would follow in a violent terrorist attack nearby in which a government Minister and many others died, but was not of a character which involved serious harm to the applicants. The Tribunal noted that such checking by the authorities as the applicants experienced could not reasonably be regarded as persecution; Sri Lankan authorities were entitled to check in order to attempt to secure the population from terrorist attacks. There was no evidence before the Tribunal to suggest that the applicants were specifically harassed by the authorities during security checks let alone that the harassment was "significant". The Tribunal noted that the intensified checking which followed the June 2000 bombing was perceived by the applicants as a sign the applicant husband was suspected of helping Tamils connected with the bombing.
The applicant contended in argument that the applicants had actually said to the Tribunal that it was "indicative of" him being suspected of helping Tamils connected with the bombing. I do not think there is any distinction to be drawn between the two. The Tribunal clearly noted that the applicants were contending that it was their view that the intensified checking was a sign that the applicant husband was suspected of helping Tamils connected with the bombing but there was no independent evidence to support that belief.
But the gravamen of the Tribunal's finding was that the behaviour of the authorities to the applicants, whether it occurred to them more often than to others in the flats, was not of a character that involved serious harm.
The applicant contends that the Tribunal's finding was made on the basis that the Tribunal did not accept that the applicant husband was a suspect and therefore found that their treatment did not involve serious harm. There is nothing to suggest however that the Tribunal did not accept the applicants' version of what had occurred to them after the bombing. The Tribunal rejected the applicants' view of the reason that it occurred (that is that the applicant husband was a suspect) and found that the treatment did not amount to "serious harm". That was clearly a matter upon which the Tribunal was entitled to form a view and the applicant has not demonstrated an error on the part of the Tribunal in concluding as it did.
Relevant and irrelevant considerations
The applicants contend that the Tribunal erred by:
a)failing to take into account a relevant consideration by not considering the claim that the applicants' residence was checked more frequently than other units in the flats;
b)failing to take into account a relevant consideration, being that the applicant husband had assisted in securing the release of a Tamil neighbour from police custody; and
c)taking into account an irrelevant consideration, being that the applicants "are long term residents of Colombo and have had residence and have had employment".
The latter, the applicant contends, caused the Tribunal to err in finding that the applicants:
"are not people with the profile of those that can be at risk of persecution as suspected LTTE associates or helpers."
The complaints about the frequency of inspections or the involvement of the husband in securing the release of a Tamil neighbour are no more than factual claims made by the applicants in support of their central claim to refugee status. They are not matters that the Tribunal was required by the Act to take into account. The relevant and irrelevant considerations grounds of review are concerned with matters that the decision maker is bound either to take into account or not to take into account. Those matters are identified by reference to the legislation pursuant to which a decision is made (see Minister for Aboriginal Affairs v Peko Wallsend Limited (1985) 162 CLR 24, 39-40. In Yusuf v Minister for Immigration & Multicultural Affairs (2001) 206 CLR 323 at [73] McHugh, Gummow and Hayne JJ, with whom Gleason CJ agreed, said at [73]):
"The considerations that are, or are not, relevant to the Tribunal's task are identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider."
Complaints about a Tribunal's treatment of particular evidence is usually no more than a complaint about the weight that was given to that evidence. Such complaints cannot establish a ground of judicial review because the weight to be accorded to the matters taken into account by a decision maker is a matter exclusively for the decision maker.
In this case none of the matters upon which the applicants rely are matters that the Tribunal was bound to take into account or exclude from account. In any event, the Tribunal did take into account the fact that the applicants were subject to more frequent checks than other residents and the claim that the applicant husband had assisted in securing the release of a Tamil neighbour. In the end the attack by the applicants is really upon the weight that the Tribunal attributed to these pieces of evidence and the finding of fact that they did not persuade the Tribunal that they constituted persecution of the applicants.
The applicant has not demonstrated that the Tribunal applied a wrong test in considering the meaning of persecution or failed to take into account all relevant issues concerning the applicants' claim and integers, and no jurisdictional error has been demonstrated by the applicant and the application must be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 17 June 2004
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