M77 of 2002 v Minister for Immigration
[2004] FMCA 308
•21 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M77 of 2002 v MINISTER FOR IMMIGRATION & ORS | [2004] FMCA 308 |
| MIGRATION – Application for judicial review – application discontinued then re-instituted – no issue of res judicata or issue estoppel Order 22 Rule 7 Federal Court Rules – application for Protection visa – application for order nisi remitted – final hearing conducted as application for order absolute – findings of credibility are findings of fact – Tribunal not required to accept evidence uncritically – not necessary for there to be rebutting evidence before Tribunal may reject evidence – whether ‘real chance’ of persecution – no error – privative clause decision – application dismissed. |
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)
Federal Court Rules
Minister for Immigration and Multicultural Affairs v Shatku [2001] FCA 1857
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 Minister for Immigration and Multicultural Affairs [2001] FCA 181
Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559
R v Hickman; Ex parte Fox (1945) 70 CLR 598
Re Ruddock; Ex parte Reyes (2000) 177 ALR 484
| Applicant: | APPLICANT M77/2002 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondents: | MR J VRACHNAS, SITTING AS THE REFUGEE REVIEW TRIBUNAL AND MR STEVE KARAS, IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL |
| File No: | MZ 413 of 2003 |
| Delivered on: | 21 May 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 10 May 2004 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondents: | Dr Donoghue |
| Solicitors for the Respondents: | Clayton Utz |
ORDER
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $6,500.00.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA |
MZ 413 of 2003
| APPLICANT M77 of 2002 |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MR J VRACHNAS, SITTING AS THE REFUGEE REVIEW TRIBUNAL AND MR STEVE KARAS, IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL |
Second Respondents
REASONS FOR JUDGMENT
History
The applicant is a citizen of Sri Lanka of Tamil ethnicity. He arrived on his own passport (issued in Colombo) in Australia on 9 July 1995 as the holder of a Student visa. Early in 1998 he left Australia for two weeks. His Student visa expired in July 1999. He did not, however, lodge an application for a Protection visa until several months later, on 26 October 1999. On 16 March 2000 a delegate of the first respondent refused to grant the Protection visa.
The applicant applied to the Refugee Review Tribunal (RRT or “the Tribunal”) for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 16 November 2001 (“the Decision”). It is that Decision that is challenged in this proceeding.
On 20 December 2001, the applicant applied to the Federal Court for judicial review of the Decision. The application was governed by the new Part 8 of the Migration Act 1958 (Cth) (“the Act”). An amended application was filed on 25 February 2001.
The applicant filed a Notice of Discontinuance in the Federal Court proceedings. On 23 April 2002 he was granted leave to discontinue and ordered to pay the first respondent’s costs.
On 31 May 2002 the applicant applied to the High Court for an Order Nisi requiring the respondents to show cause why writs of prohibition and certiorari should not be issued in respect of the Decision. On
7 February 2003, Hayne J ordered that the proceeding be remitted to the Federal Court of Australia. On 22 April 2003, Marshall J ordered that the proceeding be transferred from the Federal Court to this Court.
This proceeding therefore involves the hearing of a remitted application for Order Nisi, that application having been made some
18 months after the Decision under challenge was made, and after Federal Court proceedings raising essentially the same issues had been discontinued by the applicant.
By reason of Order 22, Rule 7 of the Federal Court Rules discontinuance does not give rise to a defence to new proceedings based on the discontinued cause of action. No issue of res judicata or issue estoppel arises.
The applicant filed an amended application under Part 8 of the Act and section 39B of the Judiciary Act 1903 (Cth) on 4 July 2003; in effect an amended draft order nisi. The hearing conducted was the hearing of the order absolute, the matter proceeding on the basis that the application was for final relief.
Applicant’s claims
The applicant claimed: -
a)that in 1983 when Tamils were attacked by Sinhalese the family house was set on fire and the family fled to Jaffna from Colombo and lived with relatives. They returned in 1985 and repaired the family home. In 1990, they rented a room to a Tamil boy and following the assassination of an army chief in 1991, the applicant’s family discovered that the boarder was a member of a suicide squad. They did not see him again. However security forced traced him to the applicant’s home discovering in his room maps and photographs. The security forces detained the applicant, his father and his sister for six days of interrogation, during which the applicant was beaten. The applicant was only released after his mother paid a bribe;
b)thereafter, whenever there was an incident which involved the Liberation Tigers of Tamil Eelan (LTTE) in Colombo, he was taken into custody for questioning. He said this occurred eight to ten times between 1991 and 1995 and on some occasions he was beaten;
c)that he had actively supported and assisted the LTTE whilst a student at Colombo; and
d)that the situation had worsened since he left Sri Lanka so that it was more likely that he would face persecution on his return.
The decision of the Refugee Review Tribunal
The applicant was legally represented and attended an oral hearing at the Tribunal on 16 October 2001.
The Tribunal found that there was not a real chance that the applicant would face persecution if he returned to Sri Lanka on account either of his Tamil race or his actual or imputed political opinion. The Tribunal found, as accurately stated by counsel for the respondent:
a)the applicant was not an active supporter of the Liberation Tigers of Tamil Eelan (LTTE) and was not suspected of being such a supporter by the authorities, and his claims to be such a supporter were, at best, `an embellishment’;
b)it doubted that the applicant’s family had given board to a Tamil boy who was a member of a suicide squad, but even if they did and were subsequently arrested for questioning, the fact that they were released after several days indicated that the applicant was not suspected of involvement in the attack;
c)the applicant was not of any adverse interest to the authorities when he left Sri Lanka, which was evidenced in part by the ease with which he entered and left the country on several occasions;
d)the applicant did not have a genuine fear of persecution in Sri Lanka, as evidenced by his failure to apply for protection for a prolonged period;
e)the applicant had exaggerated his claims concerning his treatment during security checks or interrogations – he was subjected to no more than the routine and legitimate security procedures carried out in Colombo in an effort to combat LTTE terrorism, and those procedures do not constitute persecution;
f)the security measures were directed at LTTE suspects of a particular profile, and the applicant did not fit that profile; and
g)there was no more than a remote chance that the applicant would encounter harm that was sufficiently serious to amount to persecution if he returned to Sri Lanka.
Consideration
The applicant submitted that the Tribunal had erred in 3 respects:
a)the first was that the applicant alleged the Tribunal found that persecution could not occur as a result of being a Tamil or an imputed supporter of the LTTE. I reject this submission. It is implicit in the Tribunal’s reasons that it accepted persecution could occur on either of those bases. However, it found as a fact that persecution had not occurred in this case for either of those two reasons. The Tribunal made findings that were open to it on the evidence before it. The applicant in this submission is seeking to review the merits of the Tribunal’s decision, which is not a matter for this Court. Findings of credibility are findings of fact;
b)the second was that in the Tribunal finding the applicant’s claims to be embellished or exaggerated the applicant alleged that the Tribunal could not reach such a conclusion because there was no evidence before it to dispute the facts as asserted by the applicant. I reject this submission. There does not need to be contradictory evidence before the Tribunal. As was said by Gray, Dowsett and Stone JJ in Minister for Immigration and Multicultural Affairs v Shatku [2001] FCA 1857 at 19:
The Tribunal is not required to accept uncritically the claims made by an applicant for a protection visa ( Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451). It is not necessary for there to be rebutting evidence before the Tribunal may reject an applicant’s evidence (Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347). Ultimately the weight attributed to aspects of the first respondent’s evidence, including the documentary evidence, is a matter for the Tribunal (Minister for Immigration and Multicultural Affairs [2001] FCA 181 at [31] – [32]);
c)the third was that the applicant alleged the Tribunal failed to engage in the required speculation of the chance of persecution without identifying what that required speculation was. I reject this submission. It is true conjecture or surmise has no part to play in determining whether a fear is well-founded. There must be a real and substantial basis for it as opposed to mere assumption or speculation (Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559). However, in this case the Tribunal looked to the evidence as to what was likely to happen in the future and was not satisfied that there was a real chance that the applicant could be detained and persecuted in the reasonably foreseeable future.
The real difficulty for the applicant was the absence of an evidential foundation for his claim.
The applicant has not demonstrated any error in the Tribunal’s process or in its decision. It is a privative clause decision and there is no failure to satisfy any of the so-called Hickman provisos (R v Hickman; Ex parte Fox (1945) 70 CLR 598). The application must be dismissed.
I add that the application to the High Court for an order nisi was filed 18 months after the decision of the Tribunal was made and thus the application is barred by s 486A of the Act, the decision being a privative clause decision.
Had the applicant been successful the only order appropriately to be obtained was one of mandamus directed to the Tribunal to re-hear the matter according to law and certiorari to quash the original decision: Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 at [27]. The personal naming of the Tribunal member and the principal member of the Tribunal was not proper practice.
I, Sophie Killen, certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 21 May 2004
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