M60 v Minister for Immigration (No.1) - [2003] FMCA 428

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M60 v MINISTER FOR IMMIGRATION (No.1)

[2003] FMCA 428

MIGRATION – No appearance by applicants – no grounds for review shown.

Judiciary Act 1903 (cth)

Minister for Immigration & Multicultural & Indigenous Affairs and Another; Ex-parte Applicants S134/2002 195 ALR 1
Plaintiff S157 v Commonwealth of Australia 195 ALR 24

Applicant:

M60

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 1232 of 2002

Delivered on:

12 August 2003

Delivered at:

Melbourne

Hearing Date:

12 August 2003

Judgment of:

Phipps FM

REPRESENTATION

There being no appearance for the Applicant.

Counsel for the Respondent:

Mr Fairfield

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the Application be dismissed.
That the Applicant’s pay the Respondent's costs fixed at $6,820.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1232 of 2002

M60

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an Application for the Court to exercise its jurisdiction under section 39 of the Judiciary Act 1903 (cth) in relation to a decision of the Refugee Review Tribunal, which confirmed a decision of a delegate of the Minister determining not to grant protection visas to the Applicants.
The Application was commenced in the High Court of Australia. It was then transferred to the Federal Court of Australia and further transferred by order of Weinberg J in December of 2002 to this Court.
The Applicants contentions of fact and law were filed pursuant to Weinberg J's order of 2 December 2002. The matter then came before Registrar Efthim on 11 February 2003 and he ordered that the Applicants file and serve any further submissions by 28 February 2003 addressing the impact of the judgments of the High Court of Australia in Minister for Immigration & Multicultural & Indigenous Affairs and Another; Ex-parte Applicants S134/2002 195 ALR 1 and Plaintiff S157 v Commonwealth of Australia 195 ALR 24 and he directed that contentions of fact and law be filed by the Respondent.
The Applicants then filed additional contentions of fact and law on

19 February 2003. Up until that point, the Applicants were represented by solicitors. The contentions were filed and settled by counsel. On

16 April 2003, an order was made by Registrar Efthim fixing the application for hearing today, on 12 August 2003.
Today the Applicants’ solicitor, Mr Jayakody, has appeared as a matter of courtesy before the court to inform the court that he last had contact with the Applicants at the time of preparation and filing of the additional contentions of fact and law on 19 February 2003. I think in fact he said it was before 19 February 2003. Then following the fixing of the matter for hearing on 16 April 2003, he wrote to the Applicants advising them of the date on which the application had been fixed for hearing. He has not heard from them since his last contact with them at the time of the preparation of the additional contentions of fact and law.
He wrote to the Registrar of the court on 8 August 2003 and obviously to the Respondent's solicitors advising that he was no longer acting for the Applicants and I've not received any instructions.
As I have said, he appeared as a matter of courtesy today to inform the court of this. He said that the letter he had sent advising the Applicants of today's hearing had not been returned to him and he had no other means of communicating with them.
I have been informed by Mr Fairfield, who appears for the Respondent, that following advice from the Applicants' solicitor on 8 August 2003 of their last known address for service the solicitors, that is, the Respondent's solicitors, sent a letter to that address by express post advising them of today's hearing and received no response. The Respondent’s solicitors obtained a contact address from the Department of Immigration, Multicultural and Indigenous Affairs, a different address entered onto the Department’s database on 15 May 2000. A telephone number was also provided.
The Respondent’s solicitors called that telephone number on 11 August 2003 but it was disconnected. They sent a letter by courier to the address advising that the hearing would take place today
The Applicants have been called in the usual way outside the court and they have not appeared. In the circumstances, I consider that everything which could reasonably be done to notify the Applicants of today's hearing has been done and so far as the court rules are concerned, they have been notified because at the time at which the Application was fixed for hearing, they were represented by solicitors.
I note that the court's file shows that on that day, 16 April 2003, the date on which it was fixed for hearing, there was no appearance on behalf of the Applicants, but the Applicants' solicitor, who was the solicitor on the record on that day, knew of the date. It was not all that long after he had last had contact with them and he wrote to them at the address he had. So that as far as the court's rules are concerned, they have been satisfied and as I have said I am satisfied that otherwise anything that could reasonably have been done has been done.
I have read the Tribunal's reasons for decision and I have read both sets of contentions of fact and law filed on behalf of the Applicants and also the Respondent's contentions of fact and law. I am satisfied that this is a case which, even if the Applicants appeared and even if their written contentions of fact and law were aided by oral submissions presented by them or on their behalf, their Application would not succeed.
The first Applicant is a male citizen of Sri Lanka and he entered Australia in April 2000 with a visitor's visa. The second Applicant is his wife and she entered also in April 2000 with their son, also with a visitor's visa. Then on 12 May 2000, the Applicants, together with their son, applied for protection visas. By a decision dated 12 July 2000 the Application was refused by a delegate of the Respondent. By Application received 8 August 2000, the Applicants sought review of the decision by the Refugee Review Tribunal and that decision was handed down on 5 April 2002.
I have already recited that this Application commenced in the High Court of Australia and that an affidavit of the first Applicant, together with a draft order nisi was received in the High Court registry on

9 May 2002.
The first Applicant claimed he was an ethnic Bora, a Muslim sect. He claimed to be born in Colombo but that his family had come from an eastern province of Sri Lanka. He claimed that his father was a strong supporter of the United National Party and that he was constantly harassed by the Tamil Tigers. He claimed that the Tamil Tigers group in 1994 assaulted his father, abducted his brother and demanded a ransom and he claimed that his father was required to pay money from time to time. He claimed that in April 1994, he was approached by two men who identified themselves as Tamil Tigers or LTTE members. He claimed that they demanded money.
He then said that his father's shop was burned down. He claimed that in March 1997 the Applicant's father wrote to his wife stating that he was still being harassed. Two years later he claimed the LTTE threatened the wife at gunpoint.
The Refugee Review Tribunal set out the criteria for the granting of a protection visa after setting out the Applicants’ case. The tribunal found that the male Applicant did not have a subjective or well founded fear of persecution by reason of his religion and it also found that his wife did not face a real chance of persecution. The tribunal found it was not satisfied that the male Applicant's brother had been abducted as claimed or that the Applicant or his spouse were otherwise harassed as described and set out in some detail its reasons for so doing. It found it plausible that some demands and threats might be reported to the security forces in Sri Lanka but it thought it unbelievable and inherently implausible that he claimed abduction and disappearance of the Applicant's brother in 1994 and the subsequent demands for money over a six year period, together with claims of arson and threats at gunpoint would not have been reported to the authorities by the victims' families.
The Applicants, that is, the husband and wife, alleged systematic harassment over the same period as the claimed abduction but the tribunal considered this was not consistent with the willingness of the Applicant to leave his wife and child in Colombo at the mercy of the LTTE and the failure of the Applicant's spouse to report that the LTTE demanded her house to accommodate men identified as LTTE terrorists and the willingness of both the Applicant and his spouse to return to Colombo and Qatar. The male Applicant, the husband, spent periods working in Qatar and the second Applicant, the wife, spent some periods there. The willingness of the Applicant and the spouse to return to Colombo, which, the member referred to, was in the first Applicant's case 13 occasions over five or six years and in the second Applicant's case twice.
The tribunal found that the wife's claim that she had fled her house in November 1999 because of threats at gunpoint, demands for money and the demand that she accommodate two Tamil Tigers was at odds with one of her answers on the Application form where she claimed that she had lived at that address until her departure in April 2000. The tribunal considered it implausible that the Applicant's father would not have reported the arson of his business.
In summary, the tribunal rejected and gave its reasons for rejecting the claims and evidence of the Applicants, of the activities and the events which they claimed gave rise to them having a well‑founded fear of persecution. The tribunal did not believe that, by and large, what they alleged had in fact occurred. Notwithstanding that those claims had been rejected, the tribunal then went on to assess whether, if the claims were true, they would be able to avail themselves of the protection of the state, that is, the state of Sri Lanka, and made findings of fact which were that the Sri Lankan authorities were willing and able to protect citizens threatened by the LTTE or the Tamil Tigers in Colombo.
Accordingly, even if the Applicant's claims were true the Applicant was not unable to avail himself of that protection. Then the tribunal also found that the Applicant's unwillingness to report the alleged abduction, arson and threat at gunpoint was not owing to any convention-based fear of persecution but was rather a response to criminal threat.
The contentions which the Applicant was relying on alleged first of all a lack of bona fides. That can be dealt with briefly. The contentions rely only upon the reasons for alleging a lack of bona fides. There is no basis at all for alleging a lack of bona fides in the way in which the tribunal has assessed the evidence and made its decisions.
The contentions then allege that the tribunal has not gone about its task of applying the criterion under subsection 36(2) of the Migration Act in the correct way. It alleges that it has applied the wrong test in determining what were material questions of fact, that is, the brother's abduction, the arson of the father's business, the extortion and demands by the LTTE and the demand on the wife to house the LTTE terrorists. The contention says this:
“It is our submission the tribunal has applied the wrong test because the tribunal has failed to ask whether, despite the convincing nature of the Applicant's evidence, or, to use its own words, ‘the grave doubts or inherently implausible’, it might nevertheless be satisfied that the Applicant had a well-founded fear of persecution which arose because of being subject to the behaviour complained of in his evidence to the tribunal. The tribunal's decision was affected by an error in interpreting its own obligations under the act. The error would have been cured or would not have affected the decision if the tribunal had asked, as discussion in Minister for Immigration and Multicultural Affairs v Rajalingam, ‘What if I am wrong about these findings of fact?’ The tribunal, however, did not do this and therefore has fallen into error of law in relation to its rejection of the Applicant's evidence.”
That submission is not made out. The tribunal's reasons for rejecting the evidence of the Applicants are stated. In substance those reasons are that it does not believe what the Applicants say. It gives its reasons for why it considers that it does not believe what the Applicants say. It is a fact-finding exercise. Questions of fact are matters for the tribunal. There is no need for the tribunal to state the question, “What if I am wrong about these findings of fact?” because if it is wrong about those findings of fact the conclusion is obvious: that the tribunal decision is wrong as a matter of fact. But if the tribunal's decision is wrong as a matter of fact that is not a basis for review by this court. It is not a basis for a prerogative writ on its own. That ground does not succeed.
The submissions then refer to the Craig and Yusuf tests. The submission alleges that it would seem that what is relevant here is the statement in Yusuf where the majority of the High Court says:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that it effects the exercise of power is to make an error of law. If an error of those types is made the decision-maker will not have the authority to make the decision that was made. He or she did not have the jurisdiction to make it.”
The contentions do not identify where it is said that any of those errors have taken place. A reading of the tribunal's decision does not identify any errors. The tribunal has set out the material before it. It has set out the law that applies to a protection visa. It has made its findings of fact and has related those findings of fact to the various criteria which go towards the conclusion that a protection visa should either be granted or not be granted. That basis for attacking the tribunal's decision is not there.
Nothing else is put forward and there is nothing that arises from a reading of the tribunal's decision or the submissions which leads to a conclusion that there has been any jurisdictional error. The application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Kwong S

Date: