M150 of 2002 v Minister for Immigration - [2004] FMCA 987

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M150 of 2002 v MINISTER FOR IMMIGRATION

[2004] FMCA 987

MIGRATION – Refugee visa – whether real chance test applied – whether decision illogical – whether “what if I am wrong” question should be asked – whether irrelevant consideration – whether breach of natural justice – whether breach of procedure.

Migration Act 1958 (Cth), s.424A

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
SFGB v Minister for Immigration & multicultural & Indigenous Affairs [2003] FCAFC 231
Abebe v The Commonwealth; Re Minister for Immigration and Multicultural affairs [1999] HCA 14

Applicant:

APPLICANT M150 of 2002

Respondent:

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 531 of 2003

Delivered on:

17 December 2004

Delivered at:

Melbourne

Hearing date:

28 April 2004

Judgment of:

Phipps FM

REPRESENTATION

Solicitor for the Applicant:

Mr Belbruno

Solicitors for the Applicant:

Joseph Belbruno

Counsel for the Respondent:

Mr Gray

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is refused.
The Applicant pay the Respondent’s costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 531 of 2003

APPLICANT M150 of 2002

Applicant

And

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for relief by way of prerogative writ against a decision of the Refugee Review Tribunal given on 19 July 2002.
The applicants are citizens of Sri Lanka. Both made applications for protection visas. Only the first applicant made specific claims under the Refugees Convention. The second applicant is the first applicant’s wife but makes no separate claim under the convention. For convenience, the first applicant will be called "the applicant".
The applicant applied for a protection visa on 12 June 1998.

A delegate of the first respondent refused the grant on 23 November 1998. On 19 December 1998, the applicant applied to the Tribunal for review of the delegate’s decision. On 19 July 2002, the Tribunal affirmed the delegate’s decision not to grant the protection visa. In August 2002, the applicant filed an affidavit and draft order nisi in the High Court of Australia in respect of the Tribunal's decision. On

7 February 2003, the High Court remitted the application to the Federal Court of Australia. On 20 May 2003, the Federal Court of Australia transferred the application to the Federal Magistrates Court.

The applicant's claims

The applicant claimed that while he was working for S he came into contact with a Tamil by the name of K and they became good friends. K left about two years after an incident in which he was taken into custody by security forces on suspicion that he was an LTTE supporter.
The applicant claimed that in December 1997, K advised him that he wanted to start some sort of business and he had already established contacts. He said he had contacts with dealers abroad to export garments from Sri Lanka but what promised to be a lucrative enterprise was hamstrung by a lack of warehouse facilities. The applicant claimed that in the third week of February 1998, K asked the applicant if he could help him by storing some of his textiles in part of this warehouse. The applicant claimed that he acceded to the request as a personal favour.
The applicant claimed that in the second week of March 1998, K came to his residence with two Tamil youths and introduced them as his business partners. The applicant claimed that he gave his business card to one of them and asked them to contact him during the second week of April, by which time he believed he would be able to make the necessary arrangements for the goods to be stored.
The applicant claimed that he heard nothing and so he called at the boarding house where the business partners were staying. He claimed he was told by other inmates that the residence was cordoned off and searched and that one of the business partners was taken into custody along with explosives found in his possession.
The applicant claimed that on 15 April 1998, K, one of the business partners and another person met him and told him the goods were arriving on 20 May 1998 and asked him to make arrangements to store them. The applicant claimed that he refused. The applicant claimed that he was threatened. The applicant claimed that this incident showed that K and his friends were members of the LTTE.
The applicant claimed that on 7 May 1998, K contacted him and informed him that security officers had arrested his business partner and were searching for K himself. He claimed that K stated that because the business partner had the applicant's business card, the security forces would wish to interrogate the applicant and when they did so he should not disclose K’s name and the arrangements regarding the warehouse.
The applicant claimed that he and his wife were frightened, left the house and went to stay at his wife's aunt's house. He claimed that on the same day, late at night, the security forces came to his house and questioned his in-laws about his whereabouts.
The applicant said that because his wife was employed by the airline department, she was able to bring their departures forward and they were able to leave Sri Lanka. The applicant claimed that after he arrived in Australia, he was informed by his in-laws that the security forces had come to his residence in search of him and they told his father-in-law they had gathered a substantial body of information about his involvement in the LTTE.
Submissions to the Tribunal, by the applicant’s adviser, were that people believed to be sympathetic to LTTE were being systematically harassed and persecuted in Sri Lanka. The applicant's claim put by their adviser was that the applicants were perceived by the authorities as people with close links to the LTTE and therefore a challenge to the authorities. The adviser put that as far as the security situation in Colombo was concerned, even a remote suspicion was sufficient for the authorities to arrest, detain and torture a person.

The Tribunal's decision

The Tribunal accepted that the applicant had agreed to provide warehouse space to assist his friend K without realising at the time he had agreed to the request, that K had connections with the LTTE and that K may have intended to use the warehouse to store materials for the LTTE. The Tribunal accepted that when the applicant became suspicious of his friend, he did not inform the authorities because he was frightened that the authorities would believe he was intentionally assisting the LTTE.
The Tribunal accepted that the applicant left Sri Lanka because he believed this was the easiest and quickest way to get out of the difficult position he perceived himself to be in, and that he put forward his planned departure after he learned that his friend’s associate, who had the applicant's business card in his possession, had been arrested. The Tribunal accepted that the security forces came to the applicant's parents-in-law house and asked about his whereabouts.
The Tribunal said that it recognised that at the time these events occurred, the Sri Lankan authorities did not always comply with international human rights standards or with the Sri Lankan law when dealing with suspected terrorists. The Tribunal referred to a report by the US State Department on Human Fights Practices in Sri Lanka and said it could understand why the applicant was afraid of being questioned by security forces at the time.
The Tribunal said that although it accepted the information about human rights practices in Sri Lanka, it was not satisfied that if the applicant was to return to Sri Lanka, now or in the foreseeable future, that there was a real chance he would be persecuted by the Sri Lankan authorities because they had imputed an adverse political opinion to him.
The Tribunal accepted that the authorities wanted to question the applicant in May 1998, presumably because they had discovered his business card when they arrested K’s associate. The Tribunal accepted that that person and possibly others may have told the authorities at some point that they intended to use the warehouse space provided by the applicant.
The Tribunal accepted it would be reasonable for the police to want to question the applicant about these matters. The Tribunal said that the fact was that the applicant had done nothing more than agree to provide warehouse space for a consignment which, at the time he was asked, he was given to understand comprised textiles. The warehouse was never actually used by the LTTE. The Tribunal did not accept that the applicant would have been subjected to arbitrary arrest, detained and mistreated and that he would have been suspected for having knowingly supported the LTTE given the limited nature of his involvement with K’s activities.
The Tribunal noted that, as a Muslim, the applicant would not be a person that the security forces would suspect of wanting to assist the LTTE. The Tribunal referred to reports that Muslims did not support the LTTE and that the LTTE was hostile to Muslims.
The Tribunal said that apart from the applicant's sudden departure, there was no reason why the Sri Lankan authorities would regard the applicant more adversely if he were to return to Sri Lanka than they did at the time of his problems with K.
The Tribunal found that the applicant had not been imputed with an adverse political opinion by the Sri Lankan authorities. It found that if he were to return to Sri Lanka now, or in the reasonably foreseeable future, there was not a real chance that the applicant would be imputed with an adverse political opinion and persecuted for that reason.

The applicant’s contentions

The applicant submitted that the Tribunal had not applied the proper test. It had not applied the test whether there was a "real chance" of persecution (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379). It had not, it was submitted, asked the question "what if I am wrong".
The submission had several limbs to it. First, it was submitted that the Tribunal had set out general considerations and principles about the law and considerations for Visa claims under the Refugees Convention in a generic way. It was then submitted that the Tribunal had looked at the way in which it considered a police force might act, and not the way a police force in Sri Lanka might act. It was then submitted that the Tribunal had not asked the question "what if I am wrong", that is, not considered what the consequences for the applicants might be if the Tribunal's decision was wrong.
Either as part of this submission or as a separate submission, it was submitted that there was such illogicality in the Tribunal's approach that it had not considered the real issue and so there was jurisdictional error.
In the final paragraph of its reasons under the section "Findings And Reasons", the Tribunal said:
The Tribunal finds that if he were to return to Sri Lanka now or in the recently foreseeable future there is not a real chance that the applicant would be imputed with an adverse political opinion and persecuted for this reason.
Before making that statement, the Tribunal had made a detailed examination of the evidence and claims put forward on behalf of the applicants. The Tribunal has said that it has applied the "real chance" test. It has set out general principles and considerations in what might be described as a generic way, or a way in which it is done for many Tribunal decisions. That is not a criticism. The general principles and considerations contained at the commencement of the Tribunal's reasons are just that, general principles and considerations. They are the same for all refugee Visa applications. That does not mean that the Tribunal has not considered them. The Tribunal stated in its reasons that it has applied the "real chance" test. There is no reason to doubt that.
The submission that the Tribunal has applied its own understanding of the way a police force might act and not the way a Sri Lankan police force might act is a criticism, if at all, of the Tribunal's approach to the merits of the case. It is not a failure to take into account relevant matter or to consider an irrelevant matter.
A Tribunal does not have to ask itself the question "what if I am wrong". In Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, Sackville J. (with whom North J. agreed) said at [63]:
63 Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found"
Kenny J. said at [140]:
140 There is, however, nothing in the judgments of the majority in Guo or Wu Shan Liang to require the RRT to address the specific question "What if I am wrong?" after it has made findings of fact and in the course of determining whether it is satisfied that the applicant has a well-founded fear of persecution. Indeed, I doubt that Kirby J intended to be understood as requiring that: see Wu Shan Liang at 293. In deciding whether it has a relevant satisfaction for grant of a protection visa, the Tribunal is required to bear in mind the totality of the case. That, as we have seen, includes any relevant uncertainty that it entertains as to whether claimed events in the applicant's past may ground a fear of persecution for a Convention reason. In that respect, the Tribunal is required to do no more than to satisfy itself in accordance with commonsense and the ordinary experience of mankind.
The Tribunal was not required to ask itself the question "what if I am wrong". It has stated the correct test to be applied. It has made findings of fact and it has considered whether in the future if the applicant returned to Sri Lanka he would face a real chance of persecution. There has been no error in the Tribunal's approach.
In NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235, the Full Court of the Federal Court (Tamberlin, Emmet and Weinberg JJ) said at [22]:
22 In Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, the Full Court held that want of logic by an administrative decision-maker in drawing an inference of fact, does not, per se, constitute an error of law. The Court agreed with the primary judge that a failure rationally to consider probative evidence was not to be equated with a simple mistake of fact. However, in the view of the Court, on the current state of the authorities, that difference did not of itself allow for the elevation of such a failure to a mistake of law. The Court referred to the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 where his Honour said:
"Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place." (Emphasis original).
23 In that case, Brennan, Toohey and Gaudron JJ agreed with the judgment of Mason CJ
In SFGB v Minister for Immigration & multicultural & Indigenous Affairs [2003] FCAFC 231, a Full Court of the Federal Court (Mansfield, Selway and Bennett JJ) said at [18-20]:
………..But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.
19 This argument, if it were made out, would be sufficient to establish that the Tribunal had made a `jurisdictional error' so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was `Wednesbury' unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (`S20') at 62, 67, 76, 90-91.
20 On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a `jurisdictional fact', there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a `bright line', but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The argument about lack of logic involved the same criticism as already described. That is, that the Tribunal had considered what it thought a police force would do, not what a police force in Sri Lanka would do. Even if there is a lack of logic, it does not amount to a failure to consider an issue and so a jurisdictional error. It does not involve a finding for which there was no information from which the Tribunal could realistically draw the conclusion it did As part of its fact finding process, the Tribunal has considered the question whether the authorities and the police force in Sri Lanka would have thought that the applicant was sympathetic to the LTTE. It concluded that it would not. That is a matter of fact for the Tribunal to determine. There was information before the Tribunal from which it could draw the conclusion.
For the applicant, it was submitted that the Tribunal took into account an irrelevant consideration, that the applicant was a Muslim. The consideration was not irrelevant. The Tribunal had to consider whether the authorities would regard the applicant as an LTTE sympathiser. The relationship between the LTTE and a social and religious group, to which the applicant belonged, in this case the Muslim community, was relevant to that consideration. In any event, even if it was irrelevant, it was not so central to the Tribunal's decision as to tarnish the whole process.
It was submitted that there were two instances where the Tribunal had failed to afford the applicant natural justice and had breached the requirements of s.424A of the Migration Act 1958 (Cth). That section requires the Tribunal to inform the applicant of certain types of information and give the applicant the opportunity to comment.

The Tribunal said that it considered that the applicant had fabricated the claim that, when the police visited his parents-in-law house in May 1998, they stated that they had evidence linking him to the LTTE. At another point, the Tribunal said that it considered that the applicant was being evasive on the question of whether the police would have been able to continue following up their interest in him after he left Sri Lanka because he had no contact with his own family and his wife's family had left Sri Lanka. The Tribunal said this was so because the applicant wife informed the Tribunal that they had not left Sri Lanka until September 2000 and she was not aware of the police making any further inquiries about the applicant's whereabouts after May 1998.
The breach of procedure which the applicant alleged, was that the Tribunal had not put either of these matters to the applicant and so the applicant had not been given the opportunity to comment on them. In Abebe v The Commonwealth; Re Minister for Immigration and Multicultural affairs [1999] HCA 14, Gummow and Hayne JJ said at [187]:
The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out
The applicant and his adviser must have been aware that the Tribunal might not accept some or all of the applicant's evidence. As their Honours said, it was for the applicant to put forward his case. It was not the Tribunal's role to contradict that case but to decide, including whether it accepted evidence given by the applicant. There has been no breach of procedural fairness.
Information which was said to attract the application of s.424A was that the wife informed the Tribunal that she had not left Sri Lanka until September 2000 and she was not aware of the police making any further inquiries about the applicant's whereabouts after May 1998. This is not the sort of information to which s.424A applies.

There is no basis for the grant of an order nisi. The application is refused.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: