M138 of 2003 v Minister for Immigration

[2005] FMCA 1291

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M138 of 2003 v MINISTER FOR IMMIGRATION [2005] FMCA 1291

MIGRATION – Appeal from Refugee Review Tribunal decision – well-founded fear of persecution for political reasons in Sri Lanka – rules of natural justice – whether misconstruction of the term “persecution” – relocation to a different part of the country – no jurisdictional error disclosed – application dismissed.

Federal Court of Australia Act 1976 (Cth), s.32AB
Federal Court Rules 1979 (Cth), Order 82
Migration Act 1958 (Cth), ss.36(2), 91R, 424A, 474, 476(1)(e)

Craig v South Australia (1995) 184 CLR 163
M87 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs and Ors [2005] FCA 23
Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] 67 ALD 28
Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Randhawa v MILGEA (1994) 52 FCR 437

Applicant: APPLICANT M138 OF 2003

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 86 OF 2004

Judgment of: Connolly FM

Hearing date: 16 June 2005

Date of Last Submission: 16 June 2005

Delivered at: Melbourne

Delivered on: 22 September 2005

REPRESENTATION

Counsel for the Applicant: Mr T. Cordiner

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Mr C. Fairfield

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application be dismissed.

2. That the applicant pay the respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 86 OF 2004

APPLICANT M138 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This judgment arises from an application filed by the applicant on

   
   

   22 May 2003 seeking judicial review of the decision of the Refugee Review Tribunal on 5 January 1998 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa.

The history

1. The applicant is a citizen of Sri Lanka.  He came to Australia on

   
   

   19 December 1995 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 30 January 1996.

2. On 25 October 1996 the delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visa; the applicant applied for review of that decision to the Refugee Review Tribunal (“the Tribunal”) on 5 November 1996.

3. At the Tribunal hearing, the applicant asserted two grounds for claiming refugee status:

   a)He claimed that he had been questioned by the Sri Lankan CID in 1995 about his alleged involvement in a coup and remained of adverse interest to the Sri Lankan authorities; and

   b)He feared harassment and threats from political opponents. The applicant claimed to be a supporter of the United National Party (“UNP”).  He recounted several incidents of harassment from political opponents, including an incident in August 1994 when the applicant was amongst a small group of supporters who were allegedly attacked when distributing polling documents.

   In summary, the applicant felt that there was a “real chance” that he would be persecuted due to his political opinion, or the political opinion imputed to him, and due to his suspected involvement in a coup against the government.

4. In the decision made by the Tribunal on 5 January 1998, the Tribunal affirmed the decision of the delegate not to grant the protection visa. The Tribunal found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol). Consequently, the applicant did not satisfy the criterion under section 36(2) of the Migration Act 1958 (Cth) (“the Migration Act”) for the purposes of a protection visa. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.

5. In regard to the applicant’s claims relating to the coup, the Tribunal expressed concern that these claims were not originally contained in the applicant’s application submitted to the Department.  The explanation proffered by the applicant was not accepted by the Tribunal.  The Tribunal further held that the applicant could not reasonably be considered of interest to the authorities, that he had possibly fabricated these claims and therefore was not a credible witness with respect to this aspect of his claims.

6. In relation to the applicant’s political claims, the Tribunal did accept that he was a UNP member and had been subject to politically motivated harassment or violence. However, the Tribunal reiterated its finding regarding the applicant’s credibility and held that he would not be of continued interest to any political opponents.  Finally, the Tribunal determined that the applicant had not suffered persecution and it was reasonable to find that effective protection would be afforded in other areas of Sri Lanka if the applicant found it necessary to relocate.

7. On 22 May 2003, the applicant filed an affidavit in the High Court of Australia, being M138 of 2003.  According to paragraph 8 of the applicant’s affidavit, the applicant was joined to the class action in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. This action was successful and the applicant was granted leave to lodge an application in the High Court of Australia before 31 May 2003. The applicant’s draft order nisi, filed in conjunction with the applicant’s affidavit, sought constitutional writs and asserted that the Tribunal had committed jurisdictional error in making its decision. No particulars were provided at that stage.

8. The matter was remitted to the Federal Court of Australia. Procedural orders were made by Marshall J on 9 October 2003, with Kenny J amending those orders on 28 November 2003 granting an extension of time for the filing of material. Kenny J transferred the matter to the Federal Magistrates Court, pursuant to section 32AB of the Federal Court of Australia Act 1976 (Cth) and Order 82 of the Federal Court Rules (1979) (Cth), on 22 January 2004.

9. On 23 December 2003, the applicant lodged an amended application for review.  The application reiterated that the Tribunal had erred in making its decision.  The applicant’s contentions of fact and law, filed on the same day, asserted, in summary, that:

   a)the Tribunal had failed to ask itself the correct question in assessing whether the applicant’s fear of persecution was well-founded;

   b)the Tribunal was wrong to adopt the view that the applicant could take reasonable steps to avoid harm, such as relocation;

   c)by considering it reasonable for the applicant to take steps to avoid persecutory harm, the Tribunal had failed to consider “whether there is a real chance of persecution if the person is returned to the country of nationality”;

   d)the Tribunal had breached section 424A of the Migration Act by failing to provide particulars of the “Report of the fact-finding mission to Sri Lanka” which it relied upon in making its decision;

   e)the Tribunal did not take into account relevant information, including evidence about the applicant’s detention when he was questioned about his knowledge of a coup and newspaper reports relating to the treatment of UNP supporters;

   f)the Tribunal drew inferences about the applicant’s case using insufficient material, thus arriving at a conclusion unsupported by the evidence; and

   g)the Tribunal’s decision was “so unreasonable that no reasonable Tribunal could have so decided.”

10. The respondent’s contentions of fact and law, which were filed on 3 August 2004, rebutted the applicant’s contentions, arguing that the Tribunal had not erred in making its decision.  Summarily, the respondent submitted that:

    a)the Tribunal had correctly applied the relocation test;

    b)the Tribunal did not breach its obligation pursuant to section 424A of the Migration Act, particularly as the report did not relate to the applicant, there was no evidence that the report was not put to the applicant and, even if it was not put to the applicant, there was no evidence to show how it would have affected the applicant’s case if it had been;

    c)the Tribunal’s conclusion regarding the coup and whether the applicant was of adverse interest to the authorities was reasonable and based on the evidence, and thereby open to it; and

    d)in essence, there was no merit to any of the contentions raised by the applicant.

11. The respondent also submitted arguments regarding an extension of time for the constitutional writs sought by the applicant; it was contended that there were no “exceptional circumstances” to justify an extension.

The law

1. Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

2. The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:

   (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 paragraph (1)(b), the following are 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 capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

3. Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351 (“Yusef”).

4. An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Yusef).

Conclusions and findings

1. When the matter commenced before me, the applicant indicated that he had abandoned his previous contentions and sought to rely on three new grounds.  The first of these grounds pursued orally was that the Tribunal had breached the basic rule that a person whose interests are likely to be affected by the exercise of power must be given an opportunity to deal with any matters relevantly adverse to his or her interests which the decision-maker proposes to take into account.

   I was referred to the decision of Kenny J in M87 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs and Ors [2005] FCA 23, in particular paragraphs [27]-[30]:

   27 Leaving this difference of opinion aside, the decision in Muin and Lie establishes that, having regard to its governing statute, the Tribunal is bound by the rules of natural justice. Accordingly, it must act in a manner that is procedurally fair: see Ex parte Miah at [96] per Gaudron J; [129] per McHugh J; [188] per Kirby J; Muin and Lie [61] per Gaudron J; [122] per McHugh J; [226] per Kirby J. Thus, the Tribunal must give an applicant a reasonable opportunity to present a case that he or she is a refugee, as defined in 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 ("the Refugee Convention"), and to answer any material in the Tribunal’s possession that tends against this status: see Ex parte Miah at [99] per Gaudron J; [127] per McHugh J; Muin and Lie at [61] per Gaudron J.

   28 What this requires of a decision-maker in any particular case depends not only upon the statute pursuant to which the decision is to be made, but also upon the particular circumstances of the case: see, e.g., Muin and Lie at [123] per McHugh J; [236] per Kirby J; Ex part Miah at [129], [143] per McHugh J; Kioa v West, at 611, per Brennan J; R v MacKellar, Ex parte Ratu (1977) 137 CLR 461 at 465-466 per Barwick CJ. The first respondent’s submissions pay insufficient regard to the need to consider the circumstances of each case: there is no rule that adverse country information must be disclosed only if it is "of crucial importance", "determinative" or "decisive" of an application, as the first respondent submits. I do not consider that Ex parte Miah and Muin and Lie stand for this proposition, although these cases recognise that the nature and the significance of information affects what procedural fairness requires. As Brennan J said in Kioa v West, at 612:

   The content of the principles which the legislature intends to be applied in the circumstances of a particular case cannot be discovered by reference solely to the statute. ... .

   The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.

   29 In a case such as the present, the basic rule is that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with any matters relevantly adverse to his or her interests, which the decision-maker proposes to take into account. As Brennan J put it in Kioa v West, at 629, "in the ordinary case ... an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made." This is the guiding principle, including in cases before the Tribunal: see Ex parte Miah at [140] per McHugh J; [191] per Kirby J; Muin and Lie at [123] per McHugh J; [227] per Kirby J. Cases like Lek (see [23] above) are applications of this rule of procedural fairness, which was breached in that case because country information was not put to the applicant, although decisive of the outcome of the applicant’s refugee status: see Lek at 130 per Wilcox J.

   30 The majority judgments in Ex parte Miah and Muin and Lie confirm that, in this context, there is this one fundamental rule. Thus, in Ex parte Miah at [140], McHugh J referred to Brennan J’s statement of this rule, before saying at [141]:

   In some cases, exercises of the power, although conditioned by the rules of natural justice, will not require that the applicant have an opportunity to comment on the material. Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application. But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material. An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant’s claim for refugee status. The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay. It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it. [Emphasis original].

2. The applicant contends that the Tribunal relied upon a report, “Report of the fact-finding mission to Sri Lanka”, which details the practice procedure which was checked against a constantly updated manual list of watched and expelled persons. The Tribunal used such evidence to conclude that the applicant is not on any ‘wanted list’ of persons. The applicant further says that if he had known the Tribunal would have relied on that information, he would have been able to deal with it in a manner which would have been determinative to the Tribunal’s reasoning (it is not a section 424A point as that section was not in force at the time).

3. With respect to the argument that the applicant had no opportunity to deal with the report, the respondent says that there is no evidence before the Court to suggest that the particular document was not provided.  I accept what the respondent says, that is, that there was nothing in the material to suggest that the document was not provided to the applicant at the Tribunal hearing and there is nothing to suggest that it was not raised with the applicant at the hearing.  I am not prepared to draw an inference on the basis of the material before me that the Tribunal did not raise the issue with the applicant at the hearing.  Indeed I accept the respondent’s submission that the Tribunal’s decision indicates that it clearly did raise the matter with the applicant at the hearing.  At Court Book (“CB”) 120, the Tribunal states:

   He instructs that even though he was released by the authorities he was still to report to the authorities and was under investigation.  In response to your question that you find it difficult to believe that the authorities are interested in him as he was last questioned in August 1995, the Applicant says that if he returns to his area of previous residence or to another area in Sri Lanka he must register and will come under suspicion because of his having left the country in breach of his reporting obligations and because of his previously being under investigation by the authorities.  In relation to your allegations of him leaving the country easily in such circumstances he says that there is not the sophistication in the airport at Colombo that there is in airports in Australia for example and passing through the airport is easier for Sinhalese as the authorities are more likely to be on the look out for Tamils leaving the country.

1. The second aspect of the applicant’s claim is that the Tribunal misunderstood or misconstrued the meaning of persecution, given the conclusion that it came to in the third paragraph at CB 125, and that in doing so the Tribunal fell into error. 

2. What, in effect, the applicant contends is that, having found at CB 125:

   The Tribunal has concerns as to the general credibility of the applicant as detailed above, and finds that the evidence of the applicant establishes a short period of harassment by political opponents.  This harassment was confined to the Gampaha District 30 kilometres outside of Colombo and consisted of: incidents on three consecutive days in August 1994 (verbal harassment, having a gun pointed at him and being kicked), a single incident in October 1994 (he was identified and questioned by someone who he claims was a political opponent), and a single incident some 10 months later in August 1995 (in which he and others were threatened).

   … the Tribunal then went on to find in the third paragraph at CB 125:

   As discussed above in relation to the Refugees Convention, not every threat of harm or interference with a person’s rights for a Convention reason constitutes “being persecuted”.  Mason CJ in Chan’s case (at 388) referred to persecution as requiring “some serious punishment or penalty or some significant determinant or disadvantage”.  Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to systematic harassment, amounts to persecution if done for a Convention reason.  As distressing as the incidents described by the applicant may have been  their nature was largely verbal abuse and isolated instances spread over a 12 month period, the Tribunal is not satisfied that such harassment amounts to persecution as required by the Convention”.

   What the applicant was arguing was that, on the finding of fact made by the Tribunal, the Tribunal was obliged to find that there was persecution.  I accept the contentions advanced by the respondent – that whether the findings constitute persecution is a question of qualitative assessment and a question of fact and degree for the Tribunal and not for this Court.  In my view, it was clearly open to the Tribunal to make the findings that it did and it was not obliged to find that such conduct necessarily constituted persecution. 

3. The law in this area is conveniently set out in Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] 67 ALD 28 at [55]-[56]:

   It was further submitted that:

   "Where, as in the present case, it has been established that because of his racial background, the respondent has, in the past, been subject to repeated, even though at irregular frequency, acts of discrimination, humiliation and violence, coupled with a practical exclusion of any opportunity for employment in government service (notwithstanding an apparent legal eligibility for such employment) the application of the proper test should only result in a conclusion that there is serious systemic discrimination based on racial grounds. This significantly degrades the respondent's safety, occupational prospects and freedoms and, according to the accepted evidence about the irregular and arbitrary use of force by government forces or unrestrained but sympathetic gangs, raises the real prospect of repeated episodes occurring in the future with an ever present possibility of severe harm and even death."

   This is little more than a very general summary of the facts, mixed with the inferences which the respondent says should be drawn from them, rounded off with an assertion that the combination amounts to persecution. If this summary accurately reflected the evidence, it might well have justified an inference that there was a well-founded fear of persecution. However the fact remains that in the present case, the Tribunal was not willing to draw that inference, having regard to the facts which it found to be made out. That conclusion was, in our view, reasonably open on the facts. The above submission is nothing more than an attempt to agitate the merits of the case.

4. The third claim raised by the applicant concerned the question of relocation. The applicant claimed that while it is a question of fact for determination by the Tribunal, the Tribunal excluded from its consideration matters that were central to the determination of the issue. The applicant contends that the Tribunal was required to make findings on whether the applicant could continue to campaign for his political party in the place he relocated to and whether there was a real chance that he would suffer persecution by campaigning in that area. The applicant submitted that the failure to make these findings constituted a breach of section 476(1)(e) of the Migration Act, which was applicable at the time.

5. The Tribunal, at CB 125, found:

   Given such evidence the Tribunal does not consider that the applicant would be of continued interest to his political opponents.

6. Further, at CB 124, the Tribunal stated:

   The Tribunal is prepared to accept that the applicant was also involved in an incident in August 1995, and that he was later questioned by the police, was not arrested, was allowed to leave after questioning, and was not questioned again.  The Tribunal does not accept that the applicant is of any continued interest to the police.

7. And, at CB 125, the Tribunal held:

   The applicant has stated that he cannot relocate to another area as he may be recognised by the SLFP, and he would face continued problems from the police.  The Tribunal does not accept such as reasonable given the localisation of the problems faced by him (the Gampaha District), and considers that he would be able to relocate to another part of south western Sri Lanka, or indeed could even remain in Colombo.  The Tribunal considers that it is reasonable to expect the applicant to relocate if necessary and is satisfied that effective protection is available in these other areas in view of the harm encountered being restricted to only one part of Sri Lanka.

8. There is no suggestion to my mind that the Tribunal expressly excluded anything; indeed the Tribunal considered all relevant material and concluded that the applicant could relocate.  He was not of continued interest to the police and the Tribunal found that the problems had been localised in a particular district.  In the case Randhawa v MILGEA (1994) 52 FCR 437 at 441, Black CJ (Whitlam J concurring) held:

   The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country.  If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country when though real protection could be found within those borders.

9. I am satisfied that the Tribunal has not committed jurisdictional error and it is therefore not necessary to make a finding with respect to the issue of extension of time.  In all of the circumstances of this matter, I am satisfied that the application should be dismissed with costs.  I order accordingly.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Connolly FM

Associate:  N Lane

Date:  22 September 2005