M190 of 2003 v Minister for Immigration

[2005] FMCA 1169

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M190 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1169

MIGRATION – Protection visa – Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958, ss.417, 477(1)(a)

VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant: APPLICANT M190 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 689 of 2004

Judgment of: McInnis FM

Hearing date: 10 August 2005

Delivered at: Melbourne

Delivered on: 10 August 2005

REPRESENTATION

Counsel for the Applicant: Mr T.A. Fernandez

Counsel for the Respondent: Mr E. Heerey

Solicitors for the Respondent: Phillips Fox

ORDERS

1. Leave is granted to the Applicant to file in court a notice of address for service and for the applicant to be represented by Mr Fernandez.

2. Leave is granted to the Applicant nunc pro tunc to join as a second respondent the Refugee Review Tribunal.

3. The Second Respondent be granted leave to file a notice of address for service in court this day.

4. The application as amended be dismissed.

5. The Applicant shall pay the First Respondent's costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 689 of 2004

APPLICANT M190 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this application the applicant has now relied upon an amended application filed 9 August 2005.  The applicant now has the benefit of representation, although has not provided, as ordered, contentions of fact and law.  Nevertheless, the amended application seeks review of a decision of the Refugee Review Tribunal (the Tribunal) dated 11 December 2002.  The applicant seeks review of that decision as the tribunal there had affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a protection visa. 

2. The applicant at the outset of this application was granted leave to join as a second respondent the Refugee Review Tribunal and other consequential orders have been made by the court which would enable that to occur and which would also enable the applicant to be represented this day by his lawyer, Mr Fernandez.

3. The application as amended under the heading ‘Grounds’ states the following:

   “1.    The respondent has erred jurisdictionally in failing to correctly interpret the Convention and Protocol in that

   a)      The respondent failed to evaluate whether the applicant's experiences produced a well founded fear of being persecuted from his past experiences.

   b)      The respondent failed to apply the correct test, i.e. the objective well founded fear of persecution in relation to the applicant's claimed fear of harm from the LTTE.

4. To understand the grounds now relied upon it is important to refer to the background in this matter.  The applicant at the time of the application was a 29‑year‑old unmarried male citizen of Sri Lanka of Muslim faith.  He arrived in Australia on 1 July 1999 under a Sri Lankan passport and a visa issued by the first respondent's department in Colombo.  On 13 August 1999 the applicant applied to the first respondent's department for a protection visa and in support of that application the applicant provided a very detailed written statement dated 12 August 1999 setting out the applicant's claimed fear of persecution (court book pages 7-12).

5. In particular, it is noted from that document that the applicant refers in some detail to the basis upon which he has a fear of returning to Sri Lanka.  He recites in that document specific details, perhaps the most significant of which appear at pages 7 and 8 of the statement as follows:

   The LTTE were naturally anxious to punish anybody who was involved against them in this way.  In March 1994 they captured the applicant's father and interrogated and tortured him and after a few days, however, he was able to escape.  In December 1994 the LTTE burned down the applicant's father's shop.  The family was forced to flee from (the area).  They split up and the applicant's father went missing.  He was still missing at the present time and the applicant believes has probably been killed by the LTTE.  For a short time the applicant and his mother and sister stayed with different relatives in places well away from (his home town).  They were themselves in danger from the LTTE because of the applicant's father's claimed involvement in the Islamic Jihad movement.  The applicant did his best to disguise himself by changing his hairstyle and supported himself by occasional labouring work. (as amended)

6. The statement which I have amended in order to preserve the anonymity of the applicant goes on to state the following which

   
   

   I paraphrase for the purpose of this judgment:

   The applicant fears persecution on the basis of a political opinion which is imputed to him by the LTTE, namely the political opinion of being involved in the Islamic Jihad movement in opposition to the LTTE. 

7. I am satisfied the claim of the applicant is otherwise accurately set out in the respondent's contentions of fact and law.  In essence, it is noted that against the backdrop of that claim the application for a protection visa was refused by a delegate on 4 August 2000.  On 8 September 2000 the applicant then lodged an appeal from the delegate's decision to the tribunal and on 21 September 2000 he lodged written submissions in support of that application to the tribunal and attended a hearing which occurred on 11 December 2002. 

8. It is significant to note that after the decision was made in this instance by the tribunal on 11 December 2002 the applicant then by correspondence dated 21 February 2003 to the first respondent's predecessor applied for consideration on humanitarian grounds under s.417 of the Migration Act 1958 (the Act). The first respondent's predecessor by letter dated 14 April 2003 advised the applicant that it had been decided not to exercise the power under s.417 of the Act. The applicant then applied to the High Court of Australia for prerogative writs on 30 May 2003 and referred to certain grounds, a number of which referred to specific provisions of the Act which are now not pursued.

9. It is perhaps significant to note that the matter now before the court is one where the applicant relies upon the grounds to which reference has been made. 

10. The complaint of the applicant, which appears to arise from what is now ground ‘(b)’ in the particulars subjoined to ground 1 in the amended application, relates to the RRT's decision and a specific finding by the RRT which appears at page 101 of the court book as follows:

    “The tribunal has been mindful of these considerations in assisting this application.”

11. I interpolate that the ‘considerations’ relate to authorities which the tribunal has recited which, in my view, do not reveal any error.  Likewise, I should indicate for the sake of completeness that earlier in considering the Refugees Convention I do not detect any error in relation to the authorities relied upon by the tribunal.  It goes on to say in its findings and reasons the following:

    “… It notes that the Applicant's credibility is put to the test by his contradictory and confused answers to simple questions as residential addresses and years and places of schooling.  A more serious contradiction lies in his claim to the Tribunal that his father was taken away once and did not return whereas his statement in his original application tells that his father was taken away, interrogated and tortured but, that on that occasion, escaped after a few days.  Such a discrepancy is not minor.  If the Applicant's credibility on these matters was central and crucial to the Tribunal's findings, then they would need to be assessed separately and together.  However, the key issues to be assessed in this matter, while taking into account his claims of his past, relate to the prospect of future persecution.”

    (Court Book p.101)

12. It is noted in this matter that after considering the material and making other findings to which I shall refer presently, the tribunal states the following at court book page 104:

    “It is not satisfied that he has an objectively well-founded fear of persecution for the reasons he has claimed.  While he might hold a strong subjective fear of returning to his own country, that fear is not well-founded.  He is not a refugee under the Refugee Convention.”

13. In dealing with the applicant's claims it is noted that in the tribunal's reasons it specifically refers to the applicant's claims.  It specifically states that it has considered carefully the claims by the applicant and has considered them in assessing them separately and cumulatively. 

14. It further goes on to make findings specifically in relation to the applicant and otherwise generally in relation to the question of the well-founded fear of persecution, both objectively and subjectively.  It deals in detail with what might be described in general as peace negotiations and the prospect of peace in Sri Lanka as a result of negotiations between the government and the LTTE.  Indeed a proper reading of the tribunal's decision indicates that it has, in my view, expressed some degree of reservation concerning those peace negotiations.  Indeed, after considering the issue of credibility, albeit not making a specific adverse credibility finding, the tribunal goes on to state the following:

    “One aspect of this must be a consideration of the peace negotiations and the prospect of peace, at least in the sense of the absence of conflict.  The Tribunal has considered the Applicant's view, that the LTTE cannot be trusted and that it is in negotiations only because of the post-September 11 world is uncomfortable for such organisations.  It finds his view has some merit but that, whatever the LTTE motives, the progress of the negotiations does raise the question as to whether what is happening in Sri Lanka can be regarded as a substantial change.”

    (Court Book p.102)

15. The tribunal goes on to then appropriately consider country information.  It further takes into account the applicant's views and states the following:

    “The tribunal has also taken into consideration the applicant's claim that only the government and the LTTE were involved in the peace negotiations.  In fact the Muslims as a defined minority also now are included after a recent decision by nine Muslim members of parliament to boycott parliament over the question of Muslim rights in any future Tamil or LTTE-controlled government the north and east.  The government was forced to appoint an advisory committee to examine how the interests of Muslims can be protected in these areas.

    (Court Book p.102)

16. After quoting a newspaper report the tribunal goes on to state:

    “These recent events are significant in that they reinforce the Tribunal's assessment that the peace process is a serious one.  So far the LTTE has agreed not to seek independence but rather a form of autonomy within the island.  Various details as to how this could happen are being drafted.  There is considerable international support for the Norwegian-brokered talks.  However, it must also be accepted that there have been peace attempts before this round of talks and they have failed and that these talks too have had some difficult moments.  The Applicant's fear that these talks could fall apart cannot be dismissed out of hand even if the talks can be assessed as more serious and significant than any previous negotiations. 

    However, even if the talks fail and there is a return to conflict, the Tribunal is not satisfied that the Applicant faces a real chance of harm for that reason.  The question of the Applicant's association with Colombo must be raised in this matter.  While there have been reports and incidents in the past which indicate that the LTTE infiltrated the city and carried out acts of violence, the city has also been long regarded as the relatively safe location for many of Sri Lanka's citizens.  At the present time, the peace talks and an obvious decrease in acts of violence which could be laid at the door of the LTTE, make Colombo even more a place of safety from the previous conflict.  In spite of his claims to the contrary, the Applicant has strong links to Colombo.  He was born there, as were his sister and his mother.  He has himself lived there, as an adult, for at least three years.  He has relatives in that city.  He told the Tribunal his mother and sister live and work in Colombo.  It is then reasonable to assume that the Applicant would not be placed at great disadvantage should he re-locate to that city.  If, as he has claimed, he spent most of his life in (the village) and does not wish to return there, he is not obliged to do so.  Colombo represents one area of the country in which it would be safe for him to reside.”

17. The Tribunal then goes on to make a further finding which, in my view, is significant in the following terms:

    “The Tribunal finds that the Applicant would receive the necessary degree of protection required to dismiss his claim to need to seek protection in another country.  The government of Sri Lanka is a functioning one, as are the agencies of law, the police and the courts.  There is no reason for the Tribunal to resile from the finding that he could access protection in the capital city of his country.

18. It is further significant to note that in considering the issues in some detail the tribunal goes on to state the following at page 103 and 104 of the court book:

    “His ability to live apart from his family has been demonstrated, at least by his three years in Australia.  He speaks English very well and he has spent sufficient time in Colombo for it not to be a totally new experience for him.  He would be able to reunite with his mother and his sister as he has claimed he wishes to do.  The tribunal finds nothing unreasonable about coming to a conclusion that if he remains anxious about security in his alleged home locality, he is still able to access the protection of his government in Colombo and to find avenues for leading a normal life.  The applicant has not claimed that he was or would be at risk of harm from the Sri Lankan authorities.  He was able to leave Sri Lanka without hindrance.  It is satisfied that he left Sri Lanka legally on his own passport and with a valid visa to enter Australia.  It is satisfied that he can re-enter legally without a real chance of persecution for any action of his in the past.  It accepts his claim that papers presented to the Australian High Commission were largely false and that the purpose of this was to enhance his prospects of being granted a student visa to come to Australia.”

19. The tribunal then reaches the conclusion referred to earlier in this judgment.

20. I have deliberately set out in some detail the findings and reasoning of the tribunal in the context of the ground now sought to be relied upon in this application.  Whilst I accept that there has not been a specific adverse credibility finding, that does not, in my view, lead to a conclusion that the tribunal has not properly and appropriately considered the claims as put by the applicant, nor does it lead to a conclusion that the tribunal has not properly applied the principles which should be applied in considering whether or not this applicant has a well-founded fear of persecution.

21. In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-

    “16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”

22. Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review.  A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).

23. In applying the appropriate authorities and considering the reasons which I have set out in detail from the tribunal's decision, it is clear to me that whilst in a sense allowing the applicant to raise claims and to not make a specific adverse credibility finding, the tribunal has nevertheless dealt specifically with the claims as put by the applicant.  On the material before it, it has dealt specifically and appropriately with the opportunity for the applicant based on the material before it of the applicant, to reside in Colombo and has done so in an appropriate manner.  Likewise, it has considered the issue of the degree of protection available to the applicant from the Sri Lankan government should the applicant reside, as would appear to be reasonable, in Colombo. 

24. I cannot detect on the reasoning set out in detail in this judgment any jurisdictional error.  I cannot otherwise detect any jurisdictional error or any other basis upon which the grounds now sought to be argued can be supported in this application.  It follows for those reasons that the amended application should be dismissed. 

25. I accept, as submitted by the respondent, that in the absence of jurisdictional error the time limit for the application applies and that in any event the present application would be barred by the operation of the time limit prescribed in s.477(1)(a) of the Act. Nevertheless, rather than simply refuse the application on the basis it is out of time, it is my view that having considered the application in substance the more appropriate order of the court is to dismiss the application with costs.

26. I direct that the reasons for decision that I have just given be transcribed and upon review shall constitute my reasons for judgment in this matter.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  10 August 2005