M57 v Minister for Immigration
[2004] FMCA 128
•11 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M57 v MINISTER FOR IMMIGRATION | [2004] FMCA 128 |
| MIGRATION – Protection visa – application for review of decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91R, 475A
Judiciary Act 1903 (Cth), s.39B
MIMA v Yusef (2001) 206 CLR 323
NAMM v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 32
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
| Applicant: | APPLICANT M57/2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ1185 of 2002 |
| Delivered on: | 11 March 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 2 June 2003 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Kissane |
| Solicitors for the Applicant: | Wimal and Associates |
| Counsel for the Respondent: | Mr C. J. Horan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
THAT the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ1185 of 2002
| APPLICANT M57/2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
The matter proceeds in this Court following an order by Finkelstein J that it be transferred from the Federal Court of Australia on 15 November 2002.
The applicant and his wife arrived in Australia on 2 December 1999. On 13 December 1999 they lodged applications for protection (class XA) visas. They are citizens of Sri Lanka. Pursuant to the provisions for the issue of a protection visa in respect to applicants who are members of the same family unit, it is enough if one family member is a person to whom Australia has protection obligations. Only the applicant husband made specific claims under the Refugees Convention and for these reasons the Tribunal referred to him as the applicant.
On 2 December 2002 the applicant filed his amended application to review the decision of the Refugee Review Tribunal (constituted by
M Holmes) (“the Tribunal”). The Tribunal confirmed the decision of the respondent made on 6 March 2000 not to grant the protection (class XA) visa as the applicant was not a refugee as provided by the Migration Act 1958 (Cth) (“the Act”). The Tribunal’s decision was handed down on 12 April 2002 and the applicant was notified of that decision on 15 April 2002.
The applicant sought relief under section 475A of the Act and section 39B of the Judiciary Act 1903 (Cth) on the grounds that the decision-maker did not make a bone fide attempt to exercise its power. He claimed that he would be adversely affected by the decision in that he is a citizen of Sri Lanka and has been denied an opportunity to remain in Australia. He will be required to return to Sri Lanka where he fears he will face the prospect of persecution for a Convention reason.
When the matter came before me on 2 June 2003, Mr Kissane, Counsel for the applicant, indicated that he was not persisting with argument based on the Tribunal’s lack of bone fide’s. He said that he would be arguing that the Tribunal had committed jurisdictional error but relying on the same fact situation set out in his contentions. In essence he indicated that the Tribunal had erred by concluding that it did not consider the harassment which the applicant experienced before and after the 1994 election amounted to persecution. He contended that because the Tribunal accepted the nature and extent of the work he did for the UNP and the majority of problems he suffered the Tribunal should have accepted that the events amounted to persecution. Counsel further contended that the Tribunal had misconstrued the definition of persecution.
The law
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 Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example MIMA v Yusef (2001) 206 CLR 323 at 351.
Conclusions and findings
In essence, Counsel for the applicant relied on the applicant’s claims as set out in the first paragraph (p.42 CB) as the basis for his well-founded fear of persecution.
“The applicant states that he did not face any problems because of his involvement in politics until August 1994 but was then harassed and threatened by political opponents. At the hearing the applicant said that there had been small conflicts and misunderstandings which had arisen from time to time but these had not been serious. Before the election the applicant said that stones had been thrown at meetings. To the applicant’s disappointment, the UNP lost the election held in August 1994 and members of the winning PA started attacking UNP members and supporters who had been active in the election campaign. The applicant said at the hearing that he was threatened and that people started to come to his house and throw stones and say that he should not support the UNP and he would be killed if he were to continue to do so. He said that this happened four or five times in the weeks immediately following the election and that he had known some of the people who threatened him. Along with other UNP supporters, the applicant complained to the police who did not look into the incidents; the applicant said at the hearing that the police were friendly with the UNP opponents who were involved. The applicant claims that he wrote petitions about this to the President and to the Inspector-General of Police. The applicant moved to Ratmalana to stay at his uncle’s house and kept a very low profile in politics and returned to his parent’s home in December 1996. At the hearing, when I said to the applicant that he had been going to work while living away from home and the people could probably have found him had they been determined to do so, he said that he had worked at three different places during this period. After returning to his family’s home in December 1996, he had no further problems until February 1998.”
While the applicant made further claims about the harassment (p.42-44 CB), Counsel for the applicant made no reference to those, but went on to draw attention to the findings (p.46-47 CB) that related to the claims outlined in the previous paragraph.
“I have considered the applicant’s evidence about the adverse consequences of his involvement with the UNP. I accept that the applicant was harassed in the way he has claimed occurred before the 1994 election and that people came to his home afterwards and threw stones and harassed him. If the people who came threatened to kill him if he continued his involvement with the party, I do not consider that the evidence indicates a serious intention to do so. The applicant states that he moved at this time and did not return to his parents’ home for some two years but in this time he continued to work in the travel industry, albeit in three different companies, and, as he has said, he was well-known. I consider that had there been a serious intent to harm him, those wishing to do so could have found him. That he was able to avoid harassment and worse by living at his uncle’s indicates to me that people were not seeking to harm him. While I can understand that the applicant may have been troubled by what occurred around the election and even sometimes frightened, I do not consider that the harassment which he experienced before and after the 1994 election because of his support for the UNP is of a seriousness so as to constitute persecution as the term is used in Australian refugee law.”
Mr Kissane, Counsel for the applicant, further submitted that those findings affected the ultimate conclusion reached by the Tribunal (p.48 CB):
“I have concluded that the chance of the applicant coming to serious harm, of a kind which could amount to persecution, upon return to Sri Lanka because of his past involvement with the UNP and associated activities is remote. He was not persecuted in the past and I do not consider that his past involvement would lead him to face serious harm if he were to return. I also consider that there is not more than a remote chance of the applicant facing serious harm if he were to resume his association with politics upon his return.”
Counsel then proceeded to argue that in considering those events in 1994, the Tribunal misconstrued the definition of persecution and should have determined that the findings with respect to those events made by the Tribunal amounted to findings of serious harm and persecution within the meaning of section 91R. It was further submitted that the failure by the Tribunal to recognise that those events amounted to persecution was a jurisdictional error. I do not accept that proposition.
The Tribunal essentially accepted that the applicant was harassed in the way he claimed at the time of the 1994 elections but found that the threats to kill did not indicate a serious intention to do so. The Tribunal provided appropriate reasons for coming to that conclusion. They found that if the threats to harm him had been serious threats, those making the threats could have easily found him and the fact that he avoided harm indicates that those people were not seeking to harm him. I am satisfied that even if the Tribunal was wrong to have reached that conclusion it would have amounted to an error of fact not of law. A finding of fact cannot be interfered with by this Court. The Full Federal Court in NAMM v MIMIA (2003) FCAFC 32 per French, Lindgren and Finkelstein JJ said:
“faulty logic in fact finding does not constitute jurisdictional error.”
I am satisfied that there was no material before the Tribunal which warranted a finding or conclusion of actual bias, jurisdictional error or breach of procedural fairness. Accordingly I dismiss the application.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 11 March 2004
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