M76 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1103

FEDERAL COURT OF AUSTRALIA

M76 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1103

IN THE MATTER of an application for writs of prohibition and certiorari

M76 OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, KIM BOYD sitting as the REFUGEE REVIEW TRIBUNAL and STEVE KARAS in his capacity as Principal Member of the REFUGEE REVIEW TRIBUNAL

VID 117 of 2005

RYAN J
12 AUGUST 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 117 of 2005

On remittal from the High Court of Australia

IN THE MATTER of
an application for writs of prohibition and certiorari

BETWEEN:

M76 of 2004
Applicants

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

KIM BOYD sitting as the Refugee Review Tribunal
and
STEVE KARAS in his capacity as Principal Member of the Refugee Review Tribunal
Second Respondents

JUDGE:

RYAN J

DATE OF ORDER:

12 AUGUST 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.An order nisi be made in terms of the draft order nisi filed in the High Court on 14 April 2004.

2.        The said order nisi be discharged.

3.        The applicants pay the respondents’ costs, to be taxed in default of agreement.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 117 of 2005

On remittal from the High Court of Australia

IN THE MATTER of
an application  for writs of prohibition and certiorari

BETWEEN:

M76 OF 2004
Applicants

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

KIM BOYD sitting as the Refugee Review Tribunal
And

STEVE KARAS in his capacity as Principal Member of the Refugee Review Tribunal
Second Respondents

JUDGE:

RYAN J

DATE:

12 AUGUST 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. This is an application, remitted from the High Court, for writs of prohibition and certiorari made by four individuals, who are collectively referred to as Applicants M76 of 2004.  The applicants are a family group comprising a 40 year-old male, his 39 year-old wife, and their two children, a 13 year-old son and an 11 year-old daughter.  These proceedings concern an application for a protection visa made by the husband and father.  The success or otherwise of the claims of his wife and two children are entirely dependent upon his claims, and it is therefore convenient to refer to him as “the applicant”.

   Background

2. The applicant is a Sri Lankan citizen of Sinhalese ethnicity and Buddhist faith.  He first arrived in Australia on 8 October 1999, using a Sri Lankan passport endorsed with a Sports Visa (class TE, subclass 421). He later departed Australia on 26 May 2000 and returned to Sri Lanka. The applicant next entered Australia on 3 October 2000, and was subsequently joined by his wife and children on 29 November 2000.

3. More than one year later, on 18 December 2001, the applicant lodged an application for a protection visa.  A delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), rejected that application on 8 April 2002.  The Refugee Review Tribunal (“the Tribunal”) affirmed that decision on 23 February 2004 and published its decision on 12 March 2004.  The applicant then initiated proceedings in the High Court on 14 April 2004 seeking orders nisi for writs of prohibition and certiorari in respect of the Tribunal’s decision.  On 23 July 2004 Hayne J made orders by consent remitting those proceedings to this Court.

   The applicant’s claims

4. It is convenient at this point to set out the applicant’s claims in respect of his experiences in Sri Lanka and his claim to fear persecution if he were to return there.

   The applicant’s written statement

5. The applicant’s principal claims were put before the Tribunal in the form of a written statement originally lodged in support of his application for a protection visa and dated 17 December 2001.  In that statement he described how, in 1993, he came to manage and reside at a guest house in Nalanda, in the Matale district of Sri Lanka.  At around that time, he became the President of a branch of the Sri Lanka Freedom Party Youth Front (“SLFP”).  He was also widely known in the local area for his cricketing prowess.  The applicant claimed that, after the collapse of the United National Party (“UNP”) government, the Chief Organiser of the UNP and several UNP thugs harassed him constantly.  This harassment included an assault that left him with injuries to one hand.  However, he did not report the attack to the police, which he claimed was “a regime of the United National Party”.

6. Some years thereafter, and while the applicant was in Australia during 1999 and 2000, his wife informed him that the political situation in Sri Lanka had settled somewhat.  However, the applicant claimed that, upon his return to Sri Lanka, his difficulties had recurred.  He claimed that at that time he had been only a private, not a public, supporter of the Peoples’ Alliance (“PA”) government but that his opponents nonetheless discovered his activities and again made life difficult for him.

7. He claimed that he feared for his life if he were to return to Sri Lanka, and specifically named one of the individuals whom he believed to be a particular threat to him, a person he described as the most notorious criminal in the country.  He also claimed that the Sri Lankan authorities would not be able to protect him, as “political power is the supreme power of Sri Lanka”, and that the police were not in a position to disobey the “corrupt orders of politicians”.

   The Tribunal hearing

8. At an oral hearing before the Tribunal on 6 May 2003 the applicant elaborated on the claims summarised above.  At that hearing, he described his political activities as involving himself in youth organisations, helping young people find employment, assisting in community development projects and persuading local people to support the SLFP.  He gave further details of the assault that he said had been perpetrated by UNP thugs, and a further explanation of why he had failed to report it to the police.  The Tribunal noted that the applicant believed that the police;

   ‘would have told the thugs that he had reported the matter, and there were friends of the thugs at the police station.  He added that it is common for information to be leaked from the police station, and that there were UNP supporters at the police station.’

9. The applicant also described death threats that had been made against him.  He claimed to have been threatened on approximately 50 occasions over the period from August 1994 to October 1999, and on about 15 of those occasions the threats apparently made included the use of firearms.  He claimed that, to avoid incidents of that type, he would often go into hiding.  Upon questioning by the Tribunal as to why he had not reported the threats to the police, the applicant said that he knew that the police would do nothing more than promise to make inquiries.  He also claimed that the police received so many complaints that they would not have acted on this.  The Tribunal put to him that he had not even approached the police to find out whether they would act on his complaints, to which he responded that he used to receive threats on his way to the police.  On the question of why he had not requested the police to come to him, he claimed that they were under-resourced, and that the Officer-in-Charge would also have been subjected to threats.

10. The applicant also claimed that his wife had been threatened in Kandy in November 2000 (shortly before she came to Australia to join her husband), when unknown individuals menaced her with a knife and demanded to know of the applicant’s whereabouts.  His wife’s assailant told her that the applicant would be killed if he returned home.  His wife did not report this incident to the police, and, apparently, later became ill.  She was said now to suffer from insomnia and anxiety.

11. The Tribunal indicated to the applicant that it was troubled about accepting aspects of his version of events, and attempted to elicit further information from him in order to reconcile some of the perceived inconsistencies in his account.  In its reasons it wrote;

    ‘The Tribunal put to the applicant that it had difficulty accepting that he would have remained in Sri Lanka for approximately five years between 1994 and 1999 if there had been threats against him throughout that period.  He responded that the PA had provided him with various places in which to hide.  It was put to him that he had given evidence that he had continued his political activities over this period.  He responded that he did most of his political work by telephone. …

    In respect of the applicant’s failure to lodge a protection visa application until more than two years after his first arrival in Australia, and more than one year after his second arrival in Australia, his adviser gave evidence that the applicant did not know that he could apply for a protection visa until then.’

    Other information supplied

12. In support of his claims, the applicant also provided the Tribunal with a number of newspaper articles adverting to election-related violence in Sri Lanka, written references from PA members and officials as to the applicant’s involvement in the organisation, medical records for himself indicating that he had received treatment for blocked arteries in one arm, and medical records for his wife reciting that she had received treatment for depression.

13. The applicant also sent letters to the Tribunal on two occasions after the hearing.  In a letter of 18 June 2003, the applicant reiterated his belief that, if he were to return to Sri Lanka, he would face threats to his life.

14. In a second letter of 9 March 2004 (after the applicant had been advised that a decision had been made in his case, but before that decision was handed down on 12 March), the applicant asserted that the “present situation in Sri Lanka is most-dangerous and completely unsafe”.  He also repeated his fear of threats to his life if he were to return to Sri Lanka, and provided further information regarding his wife’s mental and emotional state.  (It should be noted that the Tribunal Member indicated that, even though she had already completed and signed her decision in this matter, she read the applicant’s second letter and reconsidered her decision in light of its contents.  However, she considered that, in the course of her reasons for decision, she had already dealt with the matters the applicant had sought to raise, and therefore declined to recall or reconsider the decision.)

    The Tribunal’s decision

15. The Tribunal accepted that the applicant had been a prominent supporter of the Sri Lanka Freedom Party and the PA in his local area, and had engaged in political and community development activities in support of the PA.  However, it refused to accept that these activities had attracted the adverse attention of UNP supporters.  It found the applicant’s evidence given to the Tribunal at the hearing in support of this assertion to be “incongruous”, “evasive” and “inherently unconvincing”.

16. The Tribunal recorded its findings on the relevant evidence as follows;

    ‘As was put to the applicant at the hearing, the Tribunal found it incongruous that he would have remained in Sri Lanka for approximately five years (between 1994 and 1999) if he had been the subject of constant threats by UNP supporters throughout that period.  The Tribunal found his response, that the PA had found him various places to hide, to be an unsatisfactory explanation given that he had also claimed to be engaged in political activities and employment throughout that period.  When it was suggested to him that his explanation was unsatisfactory, he gave evidence for the first time, which was inconsistent with his evidence concerning his political activities, that most of his political work had been undertaken by telephone.  He also sought to explain his continuous employment at a guest house during that period by unconvincingly giving evidence to the effect that he had been cautious and that he had been able to escape when necessary.

    The Tribunal found the applicant’s attempt to reconcile his claim for asylum in Australia with his return to Sri Lanka from Australia in May 2000 to be inherently unconvincing.  At the hearing he represented that UNP supporters had persecuted him throughout the period between August 1994 (when the PA won the General Elections) and October 1999 (when he first travelled to Australia).  For instance, when asked how often UNP supporters had threatened him during that period, he responded that UNP supporters had constantly threatened him; that they had made approximately 50 death threats against him; and that they approached him with guns on about 15 occasions.  In light of this evidence, the Tribunal found his evidence to the effect that he and his wife had believed he would not face political persecution upon returning to Sri Lanka in May 2000 to be incongruous.

    Further, the Tribunal found the applicant’s evidence to be vague and inherently unconvincing in response to its request that he provide more specific evidence concerning his claim that UNP supporters had been carrying guns when they approached him on about 15 occasions.  As if realizing that the Tribunal was concerned with how he avoided being shot given they had approached him with guns on about 15 occasions, he added that he had managed to hide from the UNP supporters on all of these occasions before they saw him.  He did not explain how he had been so successful in evading them, nor did he explain why he had initially referred to them as having “approached” him.

    The Tribunal found the applicant’s evidence in response to being questioned about why he had not sought protection from the Sri Lankan police to be inconsistent and inherently unconvincing.  Initially, he said that he had not lodged a complaint with the police when UNP supporters assaulted him in 1993 because there were friends of UNP thugs and UNP supporters at the police station who would have leaked his complaint to UNP supporters.  Further, in his written evidence to the delegate he had stated that he did not lodge a complaint with the police about that incident because the UNP was in power at that time.  Consequently, the Tribunal asked why he had not lodged complaints with the police about the threats against him during the period between August 1999 [sic] and October 1999.  Initially, he responded that the police would not have acted on his complaint.  It was then put to him that the PA was in power during that period, and that the police may have taken action in response to his complaints against UNP supporters then.  In response, he conceded that the police may have investigated his complaints against UNP supporters, but that the police had too many complaints to do that.  It was then suggested to him that his complaints would have been sufficiently serious to prompt the police to act on them.  In response, he appeared to be fabricating evidence in saying that he would receive threats when he was on his way to the police station.  Finally, he sought to explain his failure to complain to the police during this period by saying that he knew that the UNP thugs would threaten the Officer-in-Charge of the police station if he did so.

    The Tribunal found the applicant’s failure to lodge a protection visa application for more than two years after his first arrival in Australia, and more than one year after his last arrival in Australia, to be inconsistent with his claim to genuinely fear being persecuted by UNP supporters in Sri Lanka.  It found his adviser’s attempt to explain the applicant’s delay in lodging an protection visa application, namely, that the applicant did not know that he could apply for a protection visa application [sic], to be vague and unsatisfactory.’

17. The Tribunal then proceeded to reject the applicant’s contentions that he had been the subject of threats to harm or kill him, that a UNP supporter had attacked his wife in November 2000, that the applicant had been forced into hiding at various times, and that he had sought, or had any reason to seek, protection from the authorities against politically-motivated threats.  Whilst it did accept the medical evidence to the effect that the applicant had suffered an injury to his hand and that his wife suffered from psychological difficulties, it did not accept that the injuries to the applicant had been caused by an attack by UNP supporters, or that his wife’s illness was related to politically-motivated threats made against her or her husband.  The Tribunal also attached little evidentiary weight to the claims made in the references written by the applicant’s political associates.

18. The Tribunal therefore rejected the applicant’s claims and affirmed the decision not to grant protection visas to members of the family.

    The application for orders nisi

19. The draft orders nisi filed by the applicant in the High Court contain nine broad, unparticularised grounds of attack on the decision of the Tribunal, namely that the decision;

    ‘(a)was made without jurisdiction or is affected by an error of jurisdiction

    (b)is affected by an error of law

    (c)is so unreasonable that no reasonable decision maker could have made it

    (d)is based on a finding for which there was no evidence or other material

    (e)takes into account irrelevant considerations

    (f)fails to take into account relevant considerations

    (g)was an improper exercise of power conferred by the Migration Act 1958

    (h)was otherwise contrary to law

    (i)was made in bad faith’.

20. Similarly, par 3 of the draft orders nisi contained the following two additional unparticularised grounds of attack on the decision of the Tribunal;

    ‘Further or in the alternative, the Second Respondents

    (a)failed to accord the applicant natural justice

    (b)failed to follow the procedures required by the Migration Act’.

21. Paragraph 4 refers to several alternative grounds that are relied upon “in the event the amendments to Part 8 of the Migration Act 1958, introduced by the Migration Legislation (Judicial Review) Act 2001 are unconstitutional”. The substantive effect of that legislation was to introduce s 474 into the Act, which provides that certain “privative clause decisions” (of which the Tribunal’s decision in this matter is one) are not to be subject to judicial review. The constitutionality of this provision (subject to the caveat that, properly construed, the privative clause does not immunise decisions that are infected by jurisdictional error) was affirmed by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. Hence the precondition for reliance upon these grounds of relief is not satisfied.

22. Finally, the applicant also requests such extension of time as is necessary for him to make this application.

23. The application was supported by an affidavit filed by the applicant.  In it he repeated the factual basis of his claims in terms that are identical to those described earlier in these reasons.  He also repeated his belief that he could not obtain protection from the Sri Lankan authorities because “they are influenced by the government party”.

24. As is readily apparent, the grounds of error complained of by the applicant are extremely broad.  Given their complete absence of particulars they are unhelpful in assisting the Court to identify any errors which the Tribunal may have made in considering the applicant’s case.  To assist in the task which confronted the applicant of identifying some jurisdictional error, the Court made orders requiring the applicant to file and serve an amended and particularised application by 29 April 2005.  This was not done.  An additional order directing the applicant to file contentions of fact and law by the same date was similarly not complied with.

    The parties’ submissions

1. When the matter came on for hearing before the Court, the applicant, who was unrepresented, could offer no substantive submissions on the issues.  Rather, he merely repeated his desire not to have to return to Sri Lanka.

2. Counsel for the respondent was content to rely on the written submissions that had been filed.  These were to the effect that the Tribunal’s decision did not reveal any failure to accord natural justice to the applicant nor any failure to consider relevant material. The respondent submitted that no error of law, let alone any jurisdictional error, was discernible in the Tribunal’s reasons for decision.

   Consideration

3. The applicant appeared in person on the hearing of his application and failed to relate his dissatisfaction with the Tribunal’s decision to specific parts of its reasons or to grounds on which it has been accepted that such a decision may be set aside.  I therefore reserved judgment after the hearing to undertake a full examination of the Tribunal’s reasons in light of the available evidence.

4. That examination has served only to confirm my initial impression that the Tribunal did not ask itself a wrong question or take into account any irrelevant consideration.  The ultimate question arising from the form and substance of the applicant’s application for a protection visa was whether he had a well-founded fear of persecution for reasons of his actual or imputed political opinions if he were returned to Sri Lanka.  The Tribunal appears to have doubted whether, at the time of its decision, the applicant had a subjective fear of persecution.  Nevertheless, it proceeded to ask itself whether any fear of persecution for a Convention reason would be well-founded. It indicated that it was not satisfied that any such fear was well-founded.  In reaching that conclusion, it made an assessment, on the basis of so much of the applicant’s evidence as it accepted and aspects of the political situation in Sri Lanka which are matters of common knowledge, of whether there was a real risk to the applicant of persecution for the relevant reason.  The principal reason why the Tribunal failed to attain the requisite satisfaction that the applicant had a well-founded fear of persecution was that it found his evidence “unconvincing”.  That finding was essentially the same as the finding examined by McHugh J in Re Minister for Immigration and Multicultural Affairs;  Ex parte Durairajasingham (2000) 168 ALR 407 where his Honour observed, at 423 [67]:

   ‘… However, this was essentially a finding as to whether the prosecutor should be believed in his claim — a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged.’

5. I can discern nothing in the reasons of the Tribunal to indicate that it lost sight of the ultimate question which it had to resolve.  Nor do its findings of fact, including those going to the applicant’s credibility, suggest that, on the way to resolving that ultimate question, it took into account an irrelevant consideration.  The same findings of fact and the process of reasoning adopted by the Tribunal do not suggest any denial to the applicant of procedural fairness.

   Conclusion

6. For the reasons which I have endeavoured to explain, I am unable to impute to the Tribunal any jurisdictional error.  It follows that it would be futile to grant the extension of time which the applicant seeks.  To make it clear that I intend finally to dispose of the matter, I shall make the order nisi and then order that it be discharged.  The applicants must pay the respondents’ costs. 

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:
Dated:            11 August 2005

Counsel for the Applicants:	The applicant appeared in person
Counsel for the First Respondent:	E J C Heerey
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	14 June 2005
Date of Judgment:	12 August 2005