M155 of 2004 v Minister for Immigration
[2006] FMCA 544
•26 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M155 of 2004 v MINISTER FOR IMMIGRATION & ORS | [2006] FMCA 544 |
| MIGRATION – Refugees – application for review of decision by Refugee Review Tribunal – whether applicant had a well founded fear of persecution by reason of political opinion – whether Tribunal asked itself the right question and took into account relevant considerations. |
| Migration Act 1958 (Cth) High Court Rules 2004 Federal Court Rules |
| Applicant S469 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 64 Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491 Craig v South Australia (1995) 184 CLR 163 M51 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 887 M160/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 219 ALR 140 Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Cassim (2000) 157 ALR Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | APPLICANT M155 OF 2004 |
| Respondents: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS KIM MAGNUSSEN, an officer of the Commonwealth, in her capacity as MEMBER OF THE REFUGEE REVIEW TRIBUNAL STEVE KARAS, an officer of the Commonwealth, in his capacity as PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNUAL |
| File Number: | MLG 766 of 2005 |
| Judgment of: | Connolly FM |
| Hearing date: | 28 February 2006 |
| Date of Last Submission: | 28 February 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 26 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms. Harris |
| Solicitors for the Applicant: | N/A |
| Counsel for the Respondent: | Ms. Burchill |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
(a)The decision of the Refugee Review Tribunal be set aside and be remitted to a differently constituted Tribunal for determination according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 766 of 2005
| APPLICANT M155 OF 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS. |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an order made on 13 April 2006 by Hayne J. of the High Court of Australia to remit this matter to the Federal Magistrates Court of Australia. The applicant seeks a review of a decision made by the Refugee Review Tribunal (“The Tribunal”) on
19 December 2003. The Tribunal decision affirmed the previous decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs (“The Minister”) who refused to grant a protection visa to the applicant.
The history
The applicant is a citizen of Sri Lanka. He entered Australia on
3 February 1999 under a student visa. (Case Book “CB” 43)
The applicant lodged an application for a protection visa (CB 1-25) on 12 August 2002.
On 29 August 2002 a delegate for the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa. (CB 50-64)
The applicant lodged an application for review of the decision of the delegate with the Tribunal on 20 September 2002.
A Member of the Tribunal affirmed the decision of the delegate not to grant a protection visa on 25 November 2003. (CB 83-98) The Tribunal handed down its decision on 19 December 2003. Specifically, but not exhaustively, the Tribunal found that:
a)The applicant became involved in politics in Sri-Lanka when he was 16 years of age.
b)The Tribunal was unable to make any finding in relation to the circumstances of the applicant’s father’s death.
c)In 1994 the applicant and some fellow students became supporters of a Sri Lanka Freedom Party (“SLFP”) politician by the name of Amal and engaged in the activities described in his visa application.
d)The applicant was assaulted and injured whilst taking part in a demonstration in June 1994.
e)The applicant never formally joined the SLFP, or any other political party in Sri Lanka.
f)There may have been an incident in 1994 or 1998 where unknown individuals, who may have been associated with the UNP, (a rival political faction) made inquiries about the applicant’s whereabouts and came to his aunt’s home when he was staying there and that these incidents may have led to the applicant having some concerns for his safety at the time these events occurred.
g)The applicant did not have a well founded fear of persecution at the time that he left Sri Lanka.
h)Individually or cumulatively, the activities undertaken by the applicant prior to his departure from Sri Lanka would not cause any member or supporter of the current government to seek to harm him now or in the foreseeable future.
i)It was highly unlikely that any former political opponents would regard the applicant’s activities in support of Amal prior to the 1994 election to be a reason to pursue him now in revenge.
j)The applicant had no significant profile or position in the party such that he could be regarded as a significant or important person in the party, and the activities he engaged in were not of the kind to give him any profile or importance as an individual.
k)The Tribunal noted that the applicant was involved with a Presidential Commission of Investigation after the 1994 elections in Sri Lanka which investigated allegations of politically motivated violence carried out against citizens. The Tribunal did not accept that there was any chance that the applicant faced a risk of persecution due to his involvement in gathering information to be put before the Commission. The Tribunal was unable to locate any independent report of any harm coming to any person associated with the Commission.
l)The Tribunal considered a letter provided by Amal, the politician involved in the SLFP, and gave no weight to the opinion stated in the letter that the applicant had political enemies due to his previous activities or that there have been treats to his life.
m)In summary, the Tribunal found that the claims of the applicant, when taken into account either individually or cumulatively did not allude to a real chance of persecution for a Convention reason and that his fear was not well founded.
In January 2004, the applicant applied to the Minister under s.417 of the Migration Act1958 (“The Act”). This section allows for the Minister to, if she thinks it in the public interest to do so, substitute a decision of the Tribunal under s.415 of the Act for another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. The application was refused.
The applicant contends that in mid August 2004 he first became aware of his right of review in relation to the decision of the Tribunal.
On 3 September 2004, the applicant commenced proceedings in the High Court of Australia.
On 10 March 2005 the first respondent issued a summons pleading the following:
a)That the Court refuse the applicant’s application for extension of time in which to make an application for an order nisi for a declaration, or for a writ of prohibition, or for an injunction, or for orders in the nature of certiorari or mandamus.
b)Alternatively, the application outlined at point (a) be refused on the basis that it is out of time.
c)The applicant’s application for prohibition be refused because the applicant can not establish an arguable case.
On 16 March the matter was adjourned to 13 April 2005 and the filing of further affidavits on behalf of the applicant was permitted. Such affidavits were to be filed before 4:30pm on 8 April 2005.
On 13 April 2005 Hayne J. made orders in the High Court of Australia remitting the matter to the Federal Magistrates Court of Australia. Summarily, the High Court ordered that:
i)The further proceedings in this application for an order nisi for writs of certiorari, prohibition and mandamus, and for declaration and an injunction including the application for any necessary extension of time be remitted to the Federal Magistrates Court, Victoria District Registry.
ii)The application for an order nisi proceed in that Court as if the steps already taken in the matter in this Court had been taken in that Court.
iii)The further proceedings on that part of the remitted application before the Federal Magistrates Court are to be governed by rules 25.06, 25.07 and 4.02 of the High Court Rules 2002.
Here extracted are the relevant provisions of the High Court Rules 2004:
25.06.1An order to show cause why a writ of certiorari should not issue to remove a judgment, order, conviction or other proceeding, for the purpose of its being quashed shall not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding, or within such shorter period as may be prescribed by any law.
25.07.1An order to show cause why a writ of mandamus or relief of a like nature should not issue shall not be granted except upon the application of a person interested in the relief sought.
25.07.2An application for an order to show cause why a writ of mandamus should not issue to a judicial tribunal to hear and determine a matter shall be made within 2 months of the date of the refusal to hear or within such further time as is, under special circumstances, allowed by the Court or a Justice.
4.02Any period of time fixed by or under these Rules may be enlarged or abridged by order of the Court or a Justice whether made before orafter the expiration of the time fixed.
On 6 April 2005 the applicant filed and served an affidavit in response to application of the first respondent.
On 24 January 2006, the applicant also filed proposed amended grounds and particulars in order nisi seeking leave of the Court to amend the particulars to the grounds in the draft order nisi exhibited to the affidavit sworn by the applicant on 3 September 2004. The applicant also filed contentions of fact and law on this day. Specifically, but not exhaustively, the applicant contended that:
a)In relation to his application for an extension of time the applicant refers to two affidavits filed in the High Court of Australia, one sworn on 3 September 2004 and one sworn on 6 April 2005. The applicant outlines the relevant time frame for the matter and discusses the principals and cases relevant to applications for the enlargement of time under the High Court rules.
b)In relation contentions of fact relevant to his application, the applicant outlines his contentions (at pages 6-8) and contends that there are sufficient grounds for review due to jurisdictional error as outlined in the draft order nisi brought before the High Court. Specifically, the applicant argues that the decision:
i)Was so unreasonable that no reasonable Tribunal could have made that decision.
ii)That the Tribunal failed properly or at all to consider the applicant’s claim for a protection visa.
iii)That he Tribunal took into account irrelevant considerations and failed to take into account relevant considerations.
iv)That the Tribunal erred in law.
c)The applicant points to specific areas where it is alleged that the Tribunal fell into jurisdictional error. Summarily, the applicant contends that:
i)There was a failure to refer to and make findings on the assault which caused the applicant injury to his arms.
ii)There was a failure to consider the change in government from the PA party to the UNP party after the 2001 elections.
iii)There was a failure to make findings about the incident at the applicant’s aunt’s home in Matara.
iv)The Tribunal asked itself the wrong question – in relation to the time for assessment of a well founded fear of persecution.
d)The applicant further alleged that the second respondent, in focusing on the issue of whether the applicant had a well founded fear at the time he left Sri Lanka, did not properly address the question of whether the applicant, at the time of his application, had a well founded fear of persecution, as he was required to do under the Migration Act 1958.
The Respondent filed contentions of fact and law on 24 February 2006. Summarily, but not exhaustively, the respondent argued that:
a)The matter ought to proceed to final hearing under Order 51A r.5 of the Federal Court Rules: Applicant S469 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 64.
b)Even if the matter proceeds on an interlocutory basis the applicant has not established an arguable case for the relief sought. Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Cassim [2000] 157 ALR per McHugh J. [9]
c)The matter has been brought out of time. Specifically, the first respondent points to the order of Hayne J., that this application be governed by Rules 25.06, 25.07 and 4.02 of the High Court Rules. The respondent contends that the application for certiorari must be made within 6 months and the application for mandamus made within 2 months of the impugned decision. It is contended that the Court’s power to extend the time limit under Rule 4.02 should not be exercised. The applicant seeks an extension of time in his affidavit of support sworn 7 April 2005.
d)The applicant explains his delay as being due to the following:
i)Not having sufficient funds to seek legal advice.
ii)His lawyer failing to advise him that he had a right to appeal the decision of the Tribunal.
iii)His lawyer advising that he should make an application to the Minister pursuant to s.417 of the Migration Act 1958.
e)The respondent contends that the terms of s.417 of the Act limit the power to rare cases and it would be imprudent to rely on such an application where other relief is available as of right.
f)The applicant’s application to the Minister under s.417 of the Act gives rise to an inference that the applicant accepted the merits of the Tribunal’s decision.
g)The applicant has been unable to establish jurisdictional error. The respondent maintains that the decision of the Tribunal is a privative clause decision for the purposes of s.486A of the Act and that the current proceedings were commenced after the 35 day time limit stipulated in the Act.
h)The applicant’s claim for prohibition is unwarranted. The claim is inappropriate and there is no basis to grant the prohibition.
i)Given the two and a half month delay in relation to the writ of certiorari and the eight and a half month delay in relation to the writ of mandamus, the nature of the explanation for the delay and the failure by the applicant to establish jurisdictional error, the Court should decline the request for relief.
The respondent addresses further issues concerning the applicant’s claims under the Act and the Convention. The respondent’s concerns are summarized as follows:
a)The applicant asserts that the Tribunal failed to refer to the assault which caused injuries to the applicant’s arms. The respondent discusses relevant case law at page 9-11 of its contentions of fact and law declares that the Tribunal considered the ‘three incidents of risks of harm, and in particular, the two incidents of assault following the meeting with Mr. Amal, that the applicant claimed as his persecution for a convention reason.’ The respondent claims that the elements that the Tribunal was obliged to take into account were:
i)The assault by a mob during a protest march in Piliyandala in June 1994.
ii)The assault resulting in the need of surgery to the applicant’s arms in June 1994.
iii)The inquiries made into his whereabouts by armed people at his Aunt’s house in Matara in either 1994 (as per the applicant’s application) or 1998. (as per the applicant’s oral evidence)
b)The respondent contends that the Tribunal considered these claims but nevertheless did not accept that the applicant faced a risk of persecution upon return to Sri Lanka.
c)The applicant further asserts that the Tribunal failed to consider the change in government from the ‘PA’ to the ‘UNP’ after the 2001 elections and that this change of government was a relevant consideration that should have been taken into account by the Tribunal.
d)The respondent asserts that the Tribunal is not bound to refer to all ‘material supplied by the applicant nor must it give a subset of reasons as to why it accepted or rejected individual pieces of evidence’. See Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex Parte Durairajasingham [2000] 168 ALR 407 at 423 per McHugh J. The respondent further contends that the Tribunal did consider the applicant’s assertions and made findings accordingly. Namely, that: (CB 95-97)
i)‘Individually, or cumulatively the activities undertaken by the applicant prior to his departure would not cause any member or supporter of the current government to seek to harm him now or in the foreseeable future.
ii)The Tribunal (was) satisfied that there is no real chance that the applicant would come to any harm as a result of his previous activities now or in the foreseeable future.’
The respondent submits that considering information available on current conditions in Sri Lanka it was open to the Tribunal to make such findings and that it was also open to the Tribunal to make findings that the applicant did not have a ‘well founded fear of persecution’ and that the conduct forming the complaint did not amount to persecution for the purposes of s.91R of the Act.
The applicant submits that the Tribunal failed to make specific findings in relation to the incident at the home of the Applicant’s Aunt in Matara. (The incident referred to at point 17 (a) (iii)). The respondent contents that the Tribunal did take this matter into consideration (CB 94-95) and came to the conclusion that while the men may have intended to frighten the applicant and dissuade him from further political activities, they were not actually seeking to cause him serious harm. As referred to earlier, there was also some conjecture as to whether this event occurred in 1994 or 1998. The applicant asserted in his application that the event occurred in 1994 while in oral evidence the applicant stated that the event occurred in 1998. The respondent contends that the Tribunal reached a conclusion concerning whether the men indented to cause the applicant serious harm which was separate from its findings in relation to the timing of the event. The respondent states that even if the event took place in either 1994 or 1998, the Tribunal found that the incident did not amount to persecution for the purposes of the Convention. The respondent states that ‘any error identified by the applicant would not be material to the decision and would not affect the exercise of powers unless errors were established in relation to both discrete reasons.’
The applicant contends that the Tribunal asked itself the wrong question in relation to its assessment of whether the applicant had a well founded fear of persecution.
The respondent disagrees and contends that the Tribunal correctly outlined the relevant case law and followed the Convention’s definition of persecution when assessing the applicant’s claims. The respondent disputes the applicant’s claim that the Tribunal had constructively failed to exercise its jurisdiction, that it had erred in applying the Chan test or that it wrongly construed the meaning of ‘persecution.’ The respondent concludes that the Tribunal’s decision was open to it on the evidence before it and that the Tribunal properly addressed the applicant’s claims.
The respondent contends that the application should be dismissed with costs.
The hearing of the application proceeded in this Court on 28 February 2006.
The law
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.”
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.
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 Act1958 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 & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
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 Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323).
Conclusions and findings
The applicant relies on the two affidavits filed in support of the application for an extension of time. The applicant was unaware that he had a right to apply for judicial review of the Refugee Review Tribunal decision. While he had legal advice with respect to his application for a protection visa and his application to the Minister under s.417 of the Migration Act 1958, it was not until mid August that he was advised for the first time that he had a right to apply for judicial review. The application then was made on 3rd September 2004. Most of the time between being notified of the Tribunal’s decision on 19th December 2003 and being made aware that he had a right to seek judicial review was occupied by the applicant making his application to the Minister.
The principles with respect to the enlargement of time were covered by McHugh J. in Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491 at paragraph 15 page 495:
‘An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases. Nevertheless, the applicant is seeking the quashing of a decision of the AIRC made 17 months before he filed his application for relief in this court.’
In Applicant M160/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 219 ALR 140 Finkelstien J. said at paragraph 5 page 143:
‘It is also important not to lose sight of the fact that, according to the authorities, there are certain types of cases (of which this is one) where the court will not apply the time rule too strictly. In other words, there are cases where the court will grant an extension of time for a reason that would not suffice in other cases. In R v Secretary of State for the Home Department; Ex parte Ahmad [1999] Imm AR 356 at 357 Lord Woolf MR said:
Normally, in the case of asylum seekers, this court will be circumspect about being too rigorous in applying the normal principles of judicial review in relation to delay because the court appreciates that to refuse an application for [permission] to apply for judicial review solely on the grounds of delay may have very grave consequences for the asylum seeker.’
He further commented at paragraph 8:
‘It necessarily follows, and in any event there are cases that support the proposition, that if a party seeks an alternative means of obtaining redress, that is an alternative to judicial review, and those means prove to be unsuccessful, that will constitute good reason for obtaining an extension of time.’
His Honour then in paragraph 9 acknowledges that there are several Federal Court decisions which have taken the view that making an application under s.417 before moving to judicial review is no excuse for delay. Then at paragraph 10 His Honour said:
‘The reason the judges rejected the proffered explanation for the delay is not readily apparent. One possible interpretation for their reasoning is that the applicant had “waived” his or her right to review the impugned decision. Here I use the word “waiver” in its strict sense of an intentional act to abandon a right by acting in a manner inconsistent with that right: Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 at 326.’
And at Paragraph 13:
‘If the delay is explained an extension of time may be granted. I see no basis upon which it would be proper for me to ignore the applications to the minister. More importantly, I am concerned that if I were to ignore those applications I would fall into error.’
And at paragraph 14:
‘Finally, before I leave this topic I wish to dispose of a point made by Dr Donaghue on behalf of the minister. He said that on an application for an extension of time it is not proper to have regard to the merits of the substantive application. I think he is wrong. It is always important to keep an eye on the merits of such applications. Not only is this position consistent with common sense (for example why would a judge ignore the fact, if it is a fact, that a review application is hopeless) it is also consistent with authority (see Sayers v Clarke Walker (a firm) [2002] 1 WLR 3095 ; 3 All ER 490) including the authority of refugee cases (for example R v Secretary of State for the Home Department; Ex parte Patel [1995] Imm AR 223 at 227).’
In my view the applicant in the current matter has explained that the reason for the delay was a combination of the application pursued under s.417 and the fact that he was unaware of his entitlement to judicial review. Further, when he did become aware of his entitlement to review the decision he acted with alacrity. I am further satisfied that the consequences for the applicant of failure to grant the extension are grave in that he fears persecution in Sri Lanka if he is required to return. On the other hand there is no identified prejudice to the respondent if the extension of time is granted. In all the circumstances, I am satisfied that the time limits in rules 25.06 and 25.07 and 4.02 should be enlarged.
With respect to the substantive issues of review the first and in my view the most significant argument advanced by the applicant is that the Tribunal failed to refer to and make findings about the assault which caused injury to his arms for which he was hospitalized and underwent surgery. The Tribunal at ‘CB 87’ summarises the applicant’s claims and evidence with respect to this important issue as follows:
·‘In June 1994 when he was returning from Amal’s meeting he was stopped by a violent gang and brutally assaulted. He was injured and hospitalized and had surgery to his arms.
·His parents became very concerned about his safety and security.
·Amal then advised him he should leave the country because he was targeted by the UNP and could be harmed by them at any time.
·His parents were making arrangements for him to leave the country when the PA government won in 1994 elections and the situation turned favourable. With this turn of events he abandoned the idea of leaving the country and continued his studies.’
However it failed to consider that claim and make any finding on it: (‘CB 94-95’)
‘Between 1994, when the applicant first became involved in political activities, and February 1999, when he left his country, there had be at most 3 incidents where he was at risk of any harm. The first two incidents occurred in the context of the 1994 election campaign. The second incident occurred either in 1994 or in mid 1998, but no harm came to the applicant between the time and February 1999 when he left the country. The Tribunal notes that in the incident that took place at Matara, the potential assailants ceased their pursuit of the applicant after his uncle contacted a friend with connections to the local UNP. There were no further attempts to locate or harm the applicant by these unknown persons. This suggests that the assailants, while they may have intended to frighten the applicant and dissuade him from further political activities, were not actually seeking to cause him any serious harm.’
It is also clear that the Tribunal did consider the event that occurred prior to the assault. (that is when people came looking for him at his Aunt’s house) but it did not make any finding on it and it failed completely to consider the claim that he had been brutally assaulted in an incident which required hospitalization and surgery to his arms. It would appear that the Tribunal failed to regard the episode as material. In M51 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 887 Ryan J. held:
‘ The applicant raised a significant issue as to whether he has a well-founded fear of persecution, by asserting that two named colleagues belonging to a like class of persons (those providing humanitarian relief to Tamils) had apparently been murdered following their detention by the authorities. The Tribunal came to the conclusion that the applicant was not sufficiently prominent among Tamil aid-workers to attract adverse government attention. It seems to have concluded, on this basis alone, that he was not at risk of persecution. I am persuaded that the Tribunal made no finding of fact regarding the alleged murder of the applicant's colleagues. The conclusion to be drawn from that omission is that it did not regard this matter as material: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per Gleeson CJ at 330 [5], and per Gaudron J at 338 [35].
In the present case, the Tribunal had before it specific evidence regarding the death of the applicant's colleagues which bore directly on the issue of whether his fear of persecution was well-founded. It was, in the language of Allsop J in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259, a component integer of the applicant's claim. The Tribunal's failure to regard it as material raises the inference that it did not ask itself the right question and, indeed, had "an erroneous understanding of what constitutes a well-founded fear of persecution": Yusuf per McHugh, Gummow and Hayne JJ at 348 [75]. While the likelihood of the applicant's coming to the attention of authorities is certainly material to that question, so is the treatment meted out to his colleagues engaged in like activities. In this sense, the Tribunal, by its error, may also have failed to take into account a relevant consideration. The Tribunal's misapprehension of the question it was required to ask, upon which the exercise of its powers was predicated, led it into jurisdictional error of the type described in Yusuf.
Where, as has occurred here, there has been a misapprehension of a question to be asked (as well as a consequent failure to consider relevant material), and where the question concerned is central to the exercise of the Tribunal's power under the Act, that error is clearly jurisdictional. As a result, the purported decision is made without jurisdiction, and, is accordingly, not one made "under the Act" for the purposes of s 474: S157/2002 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at 45-6 [74]-[78]. As a consequence, s 474 does not prevent this Court from reviewing the purported decision.
In the present matter the Tribunal had prima facie evidence before it of the alleged brutal assault of the applicant in an incident which required him to be hospitalized and undergo surgery to his arms. This evidence related directly to the issue of whether his fear of persecution was well founded. It could be said to be a central component of the applicant’s claim. In my view the Tribunal’s failure to regard it as material means that the Tribunal did not ask itself the right question and failed to take into account relevant considerations. This amounts to jurisdictional error of the type referred to in Yusef.
The second argument that the applicant advances is that the Tribunal failed to consider the change in government from PA to UNP after the 2001 elections. This is in some respects interrelated with his contention that the Tribunal asked itself the wrong question in that the Tribunal’s focus was on the time the applicant left Sri Lanka and entered Australia. The applicant submits that the Tribunal did not consider the question: “Did the Applicant have a subjective fear of persecution?” Indeed the Tribunal came to two significant findings at ‘CB 97’:
‘The Tribunal is satisfied that there is no real chance that the applicant would come to any harm as a result of his previous activities now or in the foreseeable future.’
And:
‘Even if the applicant now has had a genuine subjective fear of persecution, the Tribunal concludes that his fear is not well founded, as explained above.’
In these various considerations the Tribunal has nowhere referred to the fact that there has been a change of government in Sri Lanka in December 2001 in circumstances where the applicant came to Australia in February 1999 and the PA had been in power since 1994 shortly after the incident in which he was assaulted and hospitalized. The Tribunal did not consider the relevance that these matters had when asking itself whether the applicant had a well founded fear of persecution. I am satisfied that the Tribunal failed to take into account considerations that it was required to consider and its decision is thereby affected by jurisdictional error.
The final contention advanced by the applicant is that the Tribunal failed to make findings about the incident at the applicant’s aunt’s home in Matara. CB 93-94.
‘The Tribunal accepts that there may have been an incident in 1998 where unknown individuals, who may have been associated with the UNP, made inquires about the applicant’s whereabouts, and came to his aunt’s home when he was staying there.
The Tribunal notes that in his written application, the applicant said that this incident happened in 1994, but at the hearing he said this was in 1998. The Tribunal accepts that the applicant may have become confused about what year this event occurred. Ultimately, the Tribunal considers that it is not of great importance to establish when this event occurred, for reasons explained below.’
Whilst there is discrepancy between the applicants’s written application and his oral evidence there was no attempt made to resolve the discrepancy and the finding that it is not of great importance to establish when the event occurred was defective for the reasons I have already outlined. The Tribunal’s consideration was defective because it did not take into account the effect of the PA government being in power from late 1994 until the applicant left Sri Lanka in 1999 nor the effect of the 2001 elections and the change of government. I agree with the applicant’s contention that in the context of the Tribunal’s other failures to take into account relevant considerations and make findings of fact, this failure to make a finding in relation to the date of the Matara incident also constitutes an error of law in that it compounds the Tribunal’s overall failure to ask itself the correct question.
In all the circumstances I am satisfied that the decision of the Tribunal is affected by multiple jurisdictional errors and should be set aside and remitted to a differently constituted Tribunal for determination according to law.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: J Naughton
Date:
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