NAKB v Minister for Immigration
[2002] FMCA 288
•29 November 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAKB & ORS v MINISTER FOR IMMIGRATION | [2002] FMCA 288 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – no jurisdictional error – privative clause decision – application dismissed. |
Migration Act 1958 (Cth)
Migration Legislation Amendment (Judicial Review) Act 2001
Judiciary Act 1903
NAAV v MIMIA [2002] FCAFC 228
Craig v South Ausrtalia (1995) 184 CLR 163
Re the Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 467
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1
Abebe v Commonwealth (1999) 197 CLR 510
Htun v MIMA [2001] FCA 1820
Kianfar v MIMA [2001] FCA 1754
N1202/0IA v MIMA [2002] FCA 403
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
| Applicants: | NAKB; NAKC; NAKD; and NAKE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ559 of 2002 |
| Delivered on: | 29 November 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 20 September 2002 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicants: | Mr C Colborne |
| Solicitors for the Applicants: | Siva Logan Solicitors |
| Counsel for the Respondent: | Mr JD Smith |
| Solicitors for the Respondent: | Clayton UYtz Lawyers |
ORDERS
That the application is dismissed.
That the applicants pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ559 of 2002
| NAKB of 2002 NAKC of 2002 NAKD of 2002 NAKE of 2002 |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The application
This is an application under section 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal made on 3 May 2002 affirming a decision of the respondent not to grant protection visas to the applicants.
The application was filed in the Federal Court on 30 May 2002. The proceedings were transferred to this court by order of Whitlam J on
12 July 2002.
The respondent submitted that as there were no grounds set out in the application (apart from two very general assertions) and no submissions filed and served by the applicant as ordered by Whitlam J the application ought to be dismissed for failing to reveal any reasonable ground of review or because there was nothing in the Court Book to support the orders sought. I do not consider that the application ought to be dismissed for failing to reveal any reasonable ground of review. The affidavit sworn by the solicitor for the applicants and filed on 30 May 2002 sets out the grounds that the Tribunal exceeded its jurisdiction in making its decision to affirm the respondent’s decision and constructively failed to exercise its jurisdiction in arriving at its decision. Such grounds are further elaborated upon in the outline of applicants’ submissions which appears to have been prepared after the respondent’s outline of submissions but on which the respondent’s counsel had the opportunity to address the Court in oral submissions. In particular the applicants claim that the Tribunal asked itself the wrong questions and failed to take into account a relevant consideration. The consideration referred to is the applicant husband’s evidence of having been fingerprinted, photographed and questioned about his associations with the Liberation Tigers of Tamil Eelam (LTTE) while detained.
The applicants in this case are a husband and wife who are Sri Lankan nationals of Tamil ethnicity and their two daughters. The husband is the main claimant under the Refugees Convention. For convenience, therefore, unless otherwise indicated, these reasons for judgment refer to him as the applicant.
The applicant and his wife are both Tamils with national identity cards showing Jaffna, Sri Lanka as their place of birth and residence. They and their two daughters arrived in Australia on visitor visas on
3 February 2000. They came here from Brunei where the first applicant had been working on various contracts since 1993.
The applicant claimed that there was a real chance that he would be persecuted because he is a Tamil male from Jaffna and because of an imputed political opinion of support for the LTTE. He detailed, in a statement in support of his application for refugee status, a number of incidents in Sri Lanka from 1983 onwards which he regarded as constituting risky circumstances and which led to him seeking and obtaining employment in Brunei in 1993. Under the Brunei immigration law, as an expatriate employee he had to return to Sri Lanka in circumstances such as change of employment or after two years of assignment. He returned in May 1994. His wife and children joined him in 1994 and the family returned to Sri Lanka in November 1996 and again in November 1998. He states that on the last occasion he and his family stayed in a lodge in Columbo because of the difficulty in getting permission to travel to Jaffna.
He claimed that during the 1998 visit he shared a room in the lodge in Columbo with the son of a cousin who was apparently known by Sri Lanka security personnel to be a member of the LTTE. On 19 December 1998 the lodge was searched by Sri Lankan security personnel, and when his cousin’s son presented his ID card, he and the applicant were arrested. The applicant claimed that he was beaten and kicked after being detained and during questioning at the police station. He was released on 22 December 1998 after his wife allegedly paid a bribe to the police through the owner of the lodge in which they were staying. The applicant decided to advance his departure to Brunei and said that he paid a further bribe to facilitate his passage through the airport on
27 December 1998. His wife and children stayed in Columbo to see her parents and returned to Brunei as scheduled in January 1999.
The Tribunal decision
The applicant stated that he feared being arrested again if he returned to Sri Lanka on suspicion of having LTTE connections as he was arrested in Columbo in the company of an LTTE member who was also a relative. In his application for review he also claimed that he feared persecution because of his race (a Tamil from Jaffna) as revealed by his and his wife’s national identity cards. He suggested that on this basis the Sri Lankan security forces would suspect him of having LTTE connections. He provided medical reports from Brunei and Australia in support of his claim to have been tortured in 1998.
On the applicant’s behalf it was submitted that apart from the 1998 detention and torture he and his children were also at risk of Convention related persecution for other reasons. The Tribunal rejected these other claims. Its findings in respect of those other claims were not challenged by the applicants in these proceedings.
After the Tribunal hearing the applicant provided a letter to the Tribunal dated 12 March 2002 detailing his claims about his treatment at the police station in 1998. In that letter the applicant described the events of 19 December 1998 and stated that —
“On the next day (20/12/98) two policemen entered into the cell and took my personal details, photograph and fingerprint. They asked my real name and the LTTE member name and the year I had joined LTTE. As I did not have any identification documents with me when I was arrested, I recalled my identity card number and told the same. Later they left the cell ….”
In relation to the applicant’s claim of arrest, detention and mistreatment in 1998 the Tribunal found, based on matters relating to his profile and history, that it was not satisfied that he was arrested, detained and treated as claimed. However, it proceeded to consider the claim on the basis that it may be wrong about rejecting the claim that he was arrested, detained and treated as claimed. The Tribunal indicated that if the applicant had been arrested and if he was mistreated in the way that he claimed “particularly as set out in his recent statement” this treatment would be serious enough to amount to persecution.
The Tribunal therefore considered the question of whether the applicant would face a real chance of persecution should he now return to Sri Lanka. It noted that he had worked in the past in Colombo and in problem areas for periods of time without difficulties. The Tribunal considered that this provided a much more certain guide to his future in Sri Lanka than what it described as “one unlucky incident during one holiday”. It viewed the claimed detention and mistreatment as a “one off incident”. Although it accepted that a one off incident could indicate a real chance of persecution on return, it concluded that in this case, when the entire history of the applicant was considered, there was no real chance that the one off incident would be repeated. The Tribunal found that the applicant did not face a real chance of persecution from the security forces if he returned to a Government controlled area of Sri Lanka.
Contentions
In written submissions the applicants’ counsel submitted that in deciding whether the applicant had a well founded fear of persecution because of his arrest and detention in 1998 the Tribunal failed to have regard to his evidence of having been fingerprinted, photographed and questioned about his LTTE association. It was said that the Tribunal had not expressly referred to his evidence of what happened on
20 December 1998 despite being aware of this evidence. It was suggested that it was difficult to see how the position before there was any reason to suspect the applicant of an association with the LTTE (that is the lack of persecution before the 1998 arrest) could be of any real relevance to what might happen once there was a reason to suspect him. It was also submitted that the Tribunal was aware of the applicant’s evidence (because it referred to his statement and to the significant detail he had provided about the alleged mistreatment) and that it should have assessed the significance for the applicant and what implications arose from his evidence that the Sri Lankan authorities had obtained his personal details, presumably for the purpose of identifying him on future occasions. It was said that this was a relevant consideration that the Tribunal was bound to consider in assessing whether the 1998 incident was “isolated” as it found, or gave rise to a well-founded fear of persecution. The Tribunal’s failure to address this matter was said to mean that the Court should infer that the Tribunal did not consider it.
Counsel for the respondent suggested that the applicants’ argument that the Tribunal had committed a jurisdictional error of the Craig type had been put on two bases. First that the Tribunal did not consider the fact that the authorities had taken photographs and asked questions of the applicant while in detention. Secondly that it did not consider or did not consider sufficiently the effect of those claims.
It was submitted that the Tribunal did consider the claims in the sense that it made findings in respect of them and set out those findings in its reasons. In particular the Tribunal had referred to the significant detail about the alleged mistreatment that the applicant provided and concluded that it was not satisfied that the applicant was arrested, detained and treated as claimed. The Tribunal then went on to adopt the “what if I’m wrong” test to determine what would happen to the applicant if the arrest and mistreatment in the way claimed had occurred. It asked whether such claims would give rise to a well-founded fear of persecution for a Convention reason. It was submitted that the Tribunal not only considered the effect of those claims on whether the applicant faced a real chance of persecution but also sufficiently considered the claims. The respondent suggested that in so doing the Tribunal had complied with its obligation to set out material findings (see Re the Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 per McHugh J).
Applicable Law
It was common ground that the Tribunal’s decision is a privative clause decision within the meaning of s.474(2) of the Migration Act 1958 and is thus subject to the limitations on judicial review prescribed by s.474(1) which were introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 as applicable to all applications made to the Court on and from 2 October 2001.
The proper construction of s.474 has been the subject of detailed consideration by the Full Court of the Federal Court in NAAV v MIMIA [2002] FCAFC 228. Each member of the Court delivered a separate judgment in relation to each appeal. All agreed that s.474(1) is constitutionally valid and that the amendments have removed what would otherwise be errors in the making of some migration decisions from the scope of judicial review by validating decisions that might otherwise have been invalid. The applicant conceded that to succeed in the present case he must argue that NAAV was incorrectly decided. Such an argument assumes that there is a jurisdictional error that would, absent the privative clause, provide a basis for judicial review under section 39B of the Judiciary Act 1903.
I accept that, as suggested by counsel for the respondent, the applicant’s argument is put on two bases. First it is submitted that the Tribunal did not consider the fact that during his detention policemen had taken his personal details, photograph, fingerprints and identity card number. Secondly that it did not consider or did not sufficiently consider the effect of those claims.
The judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] 180 ALR 1 at [73] to [75] discusses the “well known duty” to take account of all relevant considerations. Failure to do so in a way that affects the exercise of power is an error of law that constitutes a jurisdictional error. (See Craig v South Australia (1995) 184 CLR 163). The joint judgment in Yusuf makes the point that the considerations that are, or are not, relevant to the Tribunal’s task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider (see Abebe v Commonwealth (1999) 197 CLR 510 at [579] per Gummow and Hayne JJ) and that the grounds of judicial review that “fasten upon” the use made of relevant and irrelevant considerations “are concerned essentially with whether the decision maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts”.(at [74]) In the context of claims of past persecution by an applicant for a protection visa it is ordinarily necessary for the Tribunal to make findings about those claims in the course of determining the chance of something occurring in the future and whether there is a well founded fear of persecution:
If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take accuont of relevant considerations (whether acts of persecution have occurred in the past). It is not accurate, however, to say that the tribunal is, therefore, under a duty to make all material findings of fact. (at [75])
In this case the Tribunal did make findings in relation to the applicant’s claim that he was “arrested, detained and treated [emphasis added] as claimed”. It indicated that the claims were as detailed in the applicant’s statement of 12 March 2002 ( which included the description of what was said to have occurred on 20 December 1998) and concluded that, based on matters relating to the applicant’s profile and history, it was not satisfied that he had been arrested, detained and treated as claimed. Further, the Tribunal then asked the question whether the claims, if true, gave rise to a well founded fear of persecution for a Convention reason. In effect the applicant argues that the Tribunal should have gone into more detail in its findings. However the obligation of the Tribunal in preparing its reasons is to set out the findings material to its decision, not the reasons for not coming to a contrary decision. Here the Tribunal asked what was the effect of questioning, detention and mistreatment of the applicant on his future chances of persecution. It found that, even accepting such events had occurred, considering the circumstances in which they occurred and the background of the applicant’s past residence and work in various areas of Sri Lanka without difficulties, it was a one off incident and did not give rise to a real chance that it would be repeated. This is a finding that was open to the Tribunal on the material before it.
The applicant sought to rely on a number of decisions of the Federal Court. In Htun v MIMA [2001] FCA 1820 the applicant, who was from Burma, made a ‘sur place’ claim that had two elements. He claimed to be at risk because of his participation in activities in Australia with Tribal Refugee Welfare (TRW) and other groups opposed to the military regime in Burma and also because of his friendship with people in organisations such as the Karen National Liberation Army (KNLA). The Tribunal addressed the former and not the latter. Allsop J (with whom Spender J agreed) found (at [42]) that the Tribunal had not dealt with the latter basis of his ‘sur place’ claim based on imputed political opinion because of his friendships as distinct from his claim based on involvement in political activities. His Honour then considered whether, if he was wrong and if the Tribunal had dealt with the friendship with KNLA members in its references to the TRW, it had sufficiently assessed the “imponderables about the future” as part of the assessment as to whether there was a real, as opposed to remote, chance of persecution.
It is important to note that in assessing the chance of persecution the Tribunal in Htun had expressed a “mere preference” for DFAT advice (which dealt with the first aspect of the claim but did not clearly cover the appellant’s associations and friendships) over the views of an officer of the Australia/Burma Council on what happened to returnees to Burma from a country such as Australia. Allsop J concluded that in these circumstances this ‘mere preference’ for the DFAT advice: “(reflecting it would seem a view of probabilities as opposed to weighing of possibilities) barely began the task of assessing the risk of persecution and whether a real chance of persecution would exist on return to Burma to someone who had not only engaged in low level political activities in Australia but also (to the likely knowledge of the authorities) become friends with officers of the KNLA. This was seen as “a failure to grapple with the test of a real chance of persecution and with any necessary assessment as to the future involved in it.” [at 43].
In this case the Tribunal proceeded on the basis of accepting the applicant’s claim in its entirety (which included the element of questioning, photographing and taking identifying details) but came to the conclusion that the whole event was a one-off incident. This is not a case where, as in Htun, the Tribunal failed to deal with a “conceptually, and in a common sense way” distinct basis for an asylum claim. At the most the Tribunal in this case failed to touch or attend to (at least expressly) one aspect of evidence. As Allsop J pointed out (at [42]) this may constitute a factual error or “errant fact finding” but it is to be distinguished from making a decision without having considered all the claims and hence failing to complete the exercise of jurisdiction. The Tribunal in this case did consider the applicant’s claim and how it was put. In so far as the claim was based on what had occurred on 20 December 1998 while the applicant was detained this was not a conceptually distinct claim but rather an aspect of the evidence in relation to his claim of arrest, detention and mistreatment.
Nor is this a case where the Tribunal has misunderstood the applicant’s claim or has failed to deal with a relevant aspect or essential element of a claimed fear of persecution. While the Tribunal did not analyse the implications of each element of the claimed detention and mistreatment, it considered, on the basis that all of the claimed conduct had occurred, whether it was going to happen again and gave reasons for its negative conclusion.
In Kianfar v MIMA [2001] FCA 1754 Carr J considered a Tribunal decision in relation to an Iranian who claimed to be at risk of persecution because he had recorded and made copies of television programmes from a television station in the USA and of a programme broadcast by a Mujehadin station in the United Kingdom. His Honour found that when deciding that the applicant would not be at risk of persecution for imputed political opinion, the Tribunal in that case, while aware of the applicant’s actions in relation to both the US and UK based material, had completely ignored the Mujehadin material from the UK television station. This amounted to ignoring relevant material and a misdirection in such a way as to have affected the exercise of its powers by the Tribunal. It was argued by the applicant that the present case also involved a failure to deal with an obviously relevant issue (the implications of the identification of the applicant in its consideration of whether there had been a one-off incident). However it cannot be said that in this case the Tribunal focused exclusively on one aspect of the applicant’s claim as to what occurred in 1998. It proceeded on the basis that all the events claimed (as detailed in the applicant’s letter of 12 March 2002) had occurred and made a finding that they were one-off.
Finally the applicant’s Counsel referred to N1202/0IA v MIMA [2002] FCA 403, in which the Full Court of the Federal Court considered the application of the decision of the High Court in MIMA v Yusef (2001) 180 ALR 1. The appellant in N1202/0IA claimed that his ethnicity and religion and his wife’s conversion to his religion put him at risk of persecution if he returned to Iran. The Full Court found that in considering the position on the assumption that the wife had converted as claimed, the Tribunal had failed to address what might happen, if anything, to the appellant on his return to Iran as a result of his wife’s conversion. It had merely stated that it did not accept that there was an additional risk because of the wife’s conversion but did not explain why the appellant was not at risk of persecution for reasons relating to his wife’s conversion. In N1202/0IA the Court found that the Tribunal had failed to consider the possibility that the appellant would suffer harm from his wife’s family or from the authorities because of his involvement in his wife’s conversion. There was in that case evidence in the form of letters from family in Iran and independent country information before the Tribunal relevant to this issue. There was no analysis of such material and no more than a ‘bare assertion’ [at 53]. The Tribunal did not discuss any possible eventualities for the appellant if the asserted events were assumed to have occurred. Hence it was to be concluded that it did not consider them. This was a failure to have regard to relevant consideration in the sense considered in Yusuf (see Gleeson CJ at [10]).
In the present case the Tribunal was “not satisfied” that the applicant was arrested, detained and treated as claimed. It then, correctly, considered the possibility that the past events had occurred as claimed by the applicant and assessed the risk that he may suffer persecution having regard to such a possibility (N1202/0IA at [54]). While the Tribunal did not engage in a detailed analysis of the claim of arrest, detention and mistreatment and the possible eventualities for the applicant of having been fingerprinted, photographed and identified while detained, it did consider the possibilities in the sense that it addressed the question of his future in Sri Lanka on the assumption that all the events detailed in the letter of 12 March 2002 had occurred. It viewed the totality of claims as a ‘one off incident’. It gave reasons for its view that this was a ‘one off incident’. By reason of other evidence referred to by the Tribunal in relation to the applicant’s entire history, including his work and residence in certain areas of Sri Lanka, the Tribunal was of the view that the applicant did not face a real chance of persecution on return. The applicant alleges that the Tribunal failed to identify and consider inferences that could have been drawn from what was said to have happened on 20 December 1998 which might have been relevant to the application of the ‘real chance’ test. However it did consider the inferences to be drawn if it was wrong in rejecting the claimed arrest detention and mistreatment. It determined that this was a ‘one off incident’. It gave reasons for such conclusion and went on to consider the inferences to be drawn from the occurrence of such a one-off event viewed in the context of the applicant’s entire history.
It has not been established that the Tribunal failed to take into account relevant considerations constituting a jurisdictional error. Furthermore, even if there was a jurisdictional error in the Craig and Yusuf sense, it is clear that on the authority of NAAV such an error would now not result in the decision being invalid. As Black CJ said in NAAV at [30] (and see to the same effect von Doussa J at [636]–[639] and Beaumont J at [277]):
“…section 474(1) may be taken to provide the ‘contrary intention’ which gives the administrative decision-maker authority to make a decision otherwise than in accordance with law, referred to in Craig v South Australia (1995) 184 CLR 183 at 179. For this reason, I take s474(1) to express the Parliament’s intention that the Minister (or the delegate) has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material.”
It has not been suggested, nor does it appear, that the so-called Hickman conditions (See R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) are not met or that there is a contravention of any “inviolable limitation or restraint” (see Black CJ at [12] and von Doussa J at [619] in NAAV) such as would be a precondition to a valid decision. In these circumstances it follows that the applicant’s claim for relief pursuant to section 39B(1) of the Judiciary Act must be dismissed.
I therefore dismiss the application and order that the applicant pay the respondent’s costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM
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