M33 of 2002 v Minister for Immigration
[2003] FMCA 354
•14 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M33 OF 2002 v MINISTER FOR IMMIGRATION | [2003] FMCA 354 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – no jurisdictional error shown – questions of fact matters for Tribunal. |
Plaintiff S157 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195ALR24
SDAV v Minister (2003) FCAFC129
| Applicant: | M33 OF 2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 1264 of 2002 |
| Delivered on: | 14 August 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 14 August 2003 |
| Judgment of: | Phipps FM |
REPRESENTATION
| M33 of 2002 appeared on his own behalf |
| Counsel for the Respondent: | Mr G. Gilbert |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the Application be dismissed.
That the Applicant pay the Respondent's costs fixed at $3400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1264 of 2002
| M33 OF 2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for writs of prohibition and certiorari directed to the Refugee Review Tribunal in relation to a decision made by it on 4 February 2002. By that decision the Tribunal affirmed the decision of a delegate of the Respondent not to grant the Applicant a protection visa. The decision of the delegate was made on 4 April 2000 and the application for review to the Tribunal was made on 25 April 2000. The application which I am dealing with was originally an application to the High Court of Australia filed on 20 March 2002. On 30 July 2002 Hayne J ordered that the application be remitted to the Federal Court of Australia and on 6 December 2002 Weinberg J of the Federal Court ordered that the application be transferred to this court. The Applicant was represented by solicitors until 4 August 2003 when they filed a notice of ceasing to act. Today the Applicant has appeared in person.
Directions were given on 11 February 2003 for filing of court books and contentions of fact and law. Contentions of fact and law were prepared by counsel for the Applicant and filed on 24 March 2003. There was not on the file contentions on behalf of the Respondent.
I was informed that they had been filed and was handed a copy but because it could not be confirmed that the Applicant or his solicitors had received those contentions, in the circumstances where the Applicant was unrepresented I handed the contentions back and invited Mr Gilbert, who appears for the Respondent, to put all his submissions orally so that there could be no doubt that the Applicant had heard and knew of the submissions that were put against his application.
So far as the Applicant is concerned, he is a citizen of Sri Lanka. He arrived in Australia on 5 February 2000. He lodged his application for a protection visa on 7 February 2000. The Tribunal in its reasons sets out that background, sets out the relevant legislation contained in the Migration Act, which are subsection 65(1) and subsection 36(2) which deals specifically with protection visas. It set out the definition of a refugee contained in the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees and it referred to the relevant parts of the Migration Regulations. It set out in full the statement that the Applicant made in support of his Application for a protection visa.
The Applicant was born on 23 December 1970, fifth in a family of six members. He had considerable sporting skills. So far as his claim for refugee status is concerned, he claimed to be and the Tribunal accepts that he is a supporter of the UNP party. So far as the matters giving rise to his fear of persecution on grounds of his political belief, the Applicant in his statement and other evidence before the Tribunal raised three matters. The first one is that his oldest brother was stabbed by a person in a group over an argument in 1997. He claims that the police in their area acted unreasonably and he claimed that that was due to the fact that one of the police was the coordinating secretary for a minister or a deputy minister in the government of the country and he says he was a member of another party. He said that the family lodged a complaint to the investigations unit dealing with the malpractices of police regarding the injustice carried out by police. He said:
“The police officers who got information about it came to our house and abused us.”
He then said:
“The stabbing is being tried in courts.”
Next he says that after presidential elections he received a telephone call saying that he would be killed. He received another telephone call telling him to get out of the party:
"Your older brother did not die although he was stabbed, but you will be killed definitely."
He says he went to the police station and complained. He says that he stated everything in his complaints, but because he was a member of the UNP, the police constable who was writing down the complaint said, “Go away”; in effect, “You're wasting my time.” In fact in his statement the Applicant says the policeman said to him:
"Go away without filling up the books in vain. Why get afraid just because you get a telephone call?"
The third matter which he describes, is that the current government granted a Justice of the Peace position to his father in 1999. This was a surprise to members of his family, because his father was not a member of any political party. He thought that might be a subtle conspiracy to kill him. As well as the Applicant’s statement, the Tribunal set out other material which was before it, which included extracts and translations from the information book of Wellawater police station, being the report dated 3 February 2000 about threatening phone calls and various other materials.
The Tribunal accepted that the Applicant is a 31-year-old male citizen of Sri Lanka, of Sinhalese ethnicity and Buddhist faith. That he travelled to Australia with a transit visa issued in Colombo on 26 January 2000. That he had previously been in Australia from 26 September 1999 to 3 October 1999 on a temporary business visa issued in Colombo on 16 September 1999. The Tribunal accepted that the Applicant was a supporter of the UNP, accepted the claims in relation to his brother, an independent and his cousin, a JV Per, insofar as the stabbing of the brother is concerned. The Tribunal said it did not accept that the police acted unreasonably and noted that the Applicant had himself stated that the matter was being pursued in the courts. The Tribunal went on to say that this indicated to the Tribunal that:
“Even if this incident is not being pursued to the satisfaction of the Applicant, it demonstrates that the law enforcement and legal systems are acting upon an alleged crime. In any event, the Tribunal finds little relationship between the activities of the Applicant, his brother and his cousin.”
Counsel for the Respondent, Mr Gilbert, has pointed me to material contained in the court book which was before the Tribunal which shows that the people concerned were charged with causing severe injuries by stabbing with a knife and attempted murder. The material which was in the court book is a summons to appear to give evidence at the Mount Lavinia Magistrates Court on 17 December 1998. One of the witnesses summoned is the Applicant's brother.
In dealing with the Applicant's claim that his father's appointment as a JP was a method of legitimising the eventual elimination of the Applicant. The Tribunal said that:
The evidence adduced points to the rewarding of a person who is not a member of any political party and not to the far-fetched interpretation placed upon it by the Applicant.
The Tribunal then dealt with a matter which had been subsequently raised by the Applicant. He had claimed initially that he was a member of the UNP. He then claimed that during 1994‑1995 he put posters up and organised meetings. The Tribunal said that it did not accept that he carried out those activities as he did not mention them originally. The Tribunal also said that it regarded the Applicant's knowledge of the political situation in Sri Lanka as disclosed through questioning by the Tribunal as poor and not consonant with the claimed political activity, even if the latter level of activity is accepted by the Tribunal. The Tribunal did not accept that the Applicant had received telephone calls for a number of reasons. The Tribunal pointed to discrepancies in the Applicant's evidence for its reasons for not accepting that.
The Tribunal then went on to review the country information, cables from the Australian High Commission in Colombo and from the US Department of State and concluded with this:
The US and UK sources are similar to the DFAT, Department of Foreign Affairs and Trade, observations. The available information makes it clear that political violence is not perpetrated only by the PA but also by other parties, including the UNP. It occurs around the time of elections or other significant campaigns. It is directed at groups of people rather than individuals unless the latter happened to be high profile members such as politicians or other leaders. The Tribunal is not satisfied that the Applicant has a high profile. In fact the Tribunal finds he has no political profile to speak of.
The Tribunal then went on to say:
The Tribunal also notes that in the last elections in December 2001 the UNP regained power and has formed a government in coalition with the Muslim congress. Because of the general modus operandi of politics in Sri Lanka, as evidenced by the information quoted above, the Applicant's political allegiances now favour him, thus making the prospect of suffering harm for his support of the UNP even more remote.
Having made all those findings and observations, the Tribunal said:
Given the above, the Tribunal finds that there is not a real chance that the Applicant would be persecuted for his political opinion now or in the reasonably foreseeable future should he return to Sri Lanka. Thus he does not have a well-founded fear of persecution for a convention reason and so the application is refused and the decision not to grant a protection visa is affirmed.
The basis on which prerogative writ can be granted is jurisdictional error. Section 474 of the Migration Act contains a privative clause but in Plaintiff S157 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195ALR24 the High Court held that the proper interpretation of section 474 meant that it did not apply to jurisdictional error. There have been a number of decisions since that time, including SDAV v Minister (2003) FCAFC129 in which the Full Court of the Federal Court has said that jurisdictional error is not limited to breach of natural justice, which was the issue in the High Court case, but covers wider grounds of jurisdictional error including those which are sometimes described as the Craig or Yusuf grounds; that is, failure to consider necessary matters, relevant matters or applying the wrong criteria, things such as that. What is axiomatic in these cases is that questions of fact are matters for the Tribunal and unless there is some jurisdictional error in the way in which the Tribunal has gone about its task of finding questions of fact, there will be no grounds for relief.
In the Applicant's contentions of fact and law, matters which are raised are, first, the Tribunal's finding that it did not accept that the police acted unreasonably in relation to the complaint to the police about the way in which the investigation of the stabbing of his brother was being investigated. The Tribunal said it did not accept that the police acted unreasonably. I already set out what the Tribunal said and referred to some of the material which was before the Tribunal. There is no basis for attacking the Tribunal's finding. It is a finding of fact and one open to the Tribunal.
Next in the contentions, the way in which the Applicant's evidence that he went to the police station in his area and complained about receiving telephone calls was dealt with. The contentions say:
By concluding the police had not acted unreasonably, the Tribunal has clearly erred.
That submission is based on a misreading of the Tribunal's reasons. The Tribunal did not say that the police had not acted unreasonably in relation to the telephone calls. The Tribunal's finding was that it did not accept that the telephone calls had taken place. That is a question of fact. It was open to the Tribunal and the Tribunal gave its reasons for that finding of fact and it is not open to challenge.
It is then submitted in the contentions that the Tribunal has taken irrelevant considerations into account in that when referring to political violence in Sri Lanka, it referred to two cables in the country information report. What is said in the contentions is:
It is our submission that these cables, especially the cables of 1994 and 1995 which are recited in a rotelike fashion in the decision of the RRT, are not a true reflection of the political situation in Sri Lanka in the year 2002. The country information of 2001 cited by the Tribunal makes no reference to political violence.
It is a matter for the Tribunal to apply the country information to the particular fact situation with which it is dealing. What the complaint appears to be is that what is set out in the cables are wrong and then the true political situation is different. The evidence the Tribunal had was what was in the cables. It is a matter for the Tribunal to apply those cables, the information in those cables, to the fact situation it is dealing with and no error and certainly no jurisdictional error has been demonstrated in relation to that.
The Tribunal has rejected the review application on factual grounds. It has examined each of the situations that the Applicant put forward as showing that he had a fear of persecution. In two instances it has rejected his evidence and has not accepted that what the Applicant says occurred did occur. In the other two instances it has said that they do not give rise to any basis for a fear of persecution.
The application was rejected on the basis of findings of fact. No error and certainly no jurisdictional error in the Tribunal's approach has been demonstrated. The application is dismissed. So for those reasons I have dismissed the application.
Discussion regarding costs
Application has been made for costs. The usual rule is that the unsuccessful party should pay the costs. I can see nothing in these proceedings which are contrary to the usual rule and so I will order that the Applicant pay the Respondent's costs. The amount sought is $3400.00, which is less, in my experience, or certainly no greater than the amount which would tax or would apply under the rules of this court.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
Date:
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