NAKQ v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 327

FEDERAL COURT OF AUSTRALIA

NAKQ v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 327

NAKQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1657 OF 2003

EMMETT J
2 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1657 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAKQ NAKR NAKS NAKT NAKU APPELLANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	2 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        the appeal be dismissed;

2.        the adult appellants pay the Minister’s costs of the appeal. 

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1657 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAKQ NAKR NAKS NAKT NAKU APPELLANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	2 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants are husband and wife and children.  They claim to be citizens of Sri Lanka.  They arrived in Australia on 21 September 2000.  On 24 October 2000, they lodged an application for protection class XA visas under the Migration Act 1958 (Cth) (‘the Act’). On 4 December 2000, a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), refused to grant protection visas. On 22 December 2000, the appellants applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision. On 15 January 2003, the Tribunal affirmed the decision not to grant protection visas. The Tribunal published its reasons for that decision on 11 February 2003.

2. On 10 March 2003, the appellants lodged an application to the Federal Court of Australia seeking relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal’s decision. The application was remitted to the Federal Magistrates Court for hearing. On 8 October 2003, Driver FM ordered that the application be dismissed and that the first and second applicants pay the Minister’s costs of the application, fixed in the sum of $4,000. By notice of appeal filed on 27 October 2003, the appellants now appeal to the Federal Court of Australia. On 30 January 2004, the Chief Justice of the Federal Court of Australia directed that the appeal be heard and determined by a single judge.

3. The Tribunal found that the appellant husband left Sri Lanka in late 1984 because he feared that he would be persecuted by the Liberation Tigers of Tamil Elam (‘the LTTE’) or by the Sri Lankan authorities.  From that time, the appellants lived in Germany.  However, the appellant husband said that he and his family did not feel safe in Germany and claimed that he was threatened by Tamils connected with the LTTE and by Germans who did not want Sri Lankan refugees in Germany.  The appellants therefore left Germany and came to Australia.

4. The Tribunal referred to the appellant husband’s claim that, if he returned to Sri Lanka, he would face a risk of persecution from the LTTE for a number of reasons.  Principally, the appellant husband claimed that he fears persecution because his younger brothers had joined the LTTE and because the appellant husband had criticised the LTTE, both before leaving Sri Lanka and while in Germany.  He claimed that, if he returns to his village, the LTTE will brand him as a traitor and that he will be killed.

5. The appellant wife was last in Sri Lanka in 1992.  The Tribunal noted that the appellant wife claimed that she fears harm from the LTTE and the government of Sri Lanka.  She claimed that she and her family were branded as traitors by the LTTE, while in Germany.  The appellant husband also claimed to fear harm from the Sri Lankan government, because the government may suspect him of involvement with the LTTE.  He said this fear is derived from the close links between his family and the LTTE in the past.

6. The Tribunal was satisfied that the appellants are Sri Lankan nationals of Tamil ethnicity and that they are unwilling to return to Sri Lanka because they fear persecution by the Sri Lankan authorities and the LTTE.  In its reasons, the Tribunal noted that the appellants are concerned that the Sri Lankan authorities may suspect them of being LTTE supporters because their families have strong links to the LTTE and that the LTTE may harm them because the appellant husband has been a prominent critic of the LTTE in the past.

7. The Tribunal was satisfied that the appellant husband, before leaving Sri Lanka, was arrested and mistreated by the Sri Lankan authorities.  The Tribunal also accepted that the appellants and their families, like many others, have suffered greatly as a result of the conflict in Sri Lanka.  The Tribunal was also satisfied that, while in Germany, the appellant husband had disagreements with LTTE fundraisers and that he had also been abused and threatened.

8. The Tribunal had regard to country information indicating that a ceasefire has been operative in Sri Lanka for nearly a year and that, as a result of that ceasefire, there was a significantly greater level of stability in Sri Lanka, such that persons are able to move freely about Sri Lanka.  The Tribunal was not satisfied that the appellants would need to return to the husband applicant’s village, or to live in an LTTE controlled area.  The Tribunal observed that the appellants have a history of being able to re-establish themselves in new places, and the Tribunal was not satisfied that it would be unreasonable for them to relocate within Sri Lanka.

9. The Tribunal was not satisfied that the appellant husband would now be at risk of arrest and mistreatment at the hands of the Sri Lankan authorities.  It referred to the change of circumstances in Sri Lanka following the ceasefire.  It also noted that the appellant husband would be able to establish that he had been out of the country for many years.  The Tribunal did not consider that the appellant husband would face the same suspicions that he may have faced in 1984 when he left Sri Lanka.  On that basis, the Tribunal was not satisfied that the appellants face a real risk of harm amounting to persecution on return to Sri Lanka, either at the hands of the Sri Lankan authorities or by the LTTE. 

10. Driver FM, in his reasons for decision, noted that the application for review filed in the Federal Court made a number of assertions as follows:

    ‘the Tribunal exceeded jurisdiction in making its decision; the Tribunal erred in law in arriving at its decision; the Tribunal did not act in good faith in making its decision; the Tribunal failed to observe procedural fairness in arriving at the decision; the Tribunal failed to follow procedures required by law; the decision of the Tribunal was not bona fide; the Tribunal identified a wrong issue and asked itself a wrong question; the Tribunal ignored relevant material, relied on the irrelevant material, made an erroneous finding and reached a mistaken conclusion, thereby committing an error of law constituting jurisdictional error; and the Tribunal exceeded its purported exercise of power.’  

11. His Honour observed that the appellants had filed two sets of written submissions that, his Honour considered, identified relevant authorities relating to the grounds of review set out in the application.  However, neither the application nor the written submissions linked those legal principles to the facts and circumstances of the appellants’ case.  His Honour observed that the appellants’ submissions dealt at some length with an allegation of bad faith, but nothing was identified in order to substantiate such an allegation.  In his oral submissions, the appellant husband simply identified matters that go to merits of the Tribunal's decision.

12. The allegation of procedural unfairness was not particularised and there was no discussion in the Tribunal’s reasons of what occurred at the hearing before the Tribunal.  No material was apparently placed before the Magistrate to indicate circumstances that may have constituted procedural unfairness.  As his Honour observed, it is for the appellants to establish by evidence that there has been a breach of procedural fairness.  His Honour was satisfied that the Tribunal dealt adequately with the appellant husband's claim that he would be persecuted by the LTTE.  His Honour considered that there was ample country information available to the Tribunal that established that, following the ceasefire between the Sri Lankan government and the LTTE, circumstances in general in Sri Lanka had improved markedly.

13. The appellant husband asserted to the Magistrate that there would be practical problems with relocation away from Tamil areas of Sri Lanka because of language difficulties.  However, his Honour observed that there was no evidence that the appellants had made such a claim to the Tribunal and referred to the observations made by the Tribunal that the appellants had shown adaptability in re-establishing themselves first in Germany and then in Australia. 

14. His Honour observed that there was a measure of disquiet to be derived from the appellants’ claim of fear of persecution at the hands of the Sri Lankan government and authorities because of the appellant husband’s family’s association with the LTTE.  The Tribunal accepted that the appellant husband’s younger brothers joined the LTTE after he left the country. 

15. There is material in the country information before the Tribunal to indicate that persons having known family association with the LTTE could face difficulties with the Sri Lankan authorities.  His Honour observed that, having accepted that the appellant husband had a family association with LTTE members, it would have been reasonable for the Tribunal to consider specifically the likelihood of the appellant husband being interrogated for an extended period upon return to Sri Lanka.

16. The learned Magistrate observed that it was not apparent, from the country information, what positive impact the ceasefire and peace negotiations may have had on the particular risk faced by persons returning to Sri Lanka who had known family ties with the LTTE.  His Honour observed that there was no information before the Tribunal concerning the question of the Sri Lankan government's knowledge of the appellant husband’s brothers’ involvement in the LTTE.

17. While his Honour was concerned that the Tribunal did not specifically consider that issue, his Honour considered that the question is whether the approach taken by the Tribunal constituted an error of jurisdiction.  His Honour observed that it would be an error of jurisdiction if the Tribunal failed to consider such an element of the claim, either constructively or at all.  His Honour was satisfied, however, that the Tribunal had dealt with the claim of fear of persecution at the hands of the Sri Lankan government by reason of family association with the LTTE.

18. His Honour was concerned about the adequacy of the consideration of that matter by the Tribunal and considered that the reasoning process by the Tribunal on that question was very brief and rather superficial.  His Honour considered that, while the Tribunal’s reasons were less than persuasive, he did not consider that the material before him led to the conclusion that the Tribunal had failed to consider a relevant question, either constructively or otherwise, and therefore did not amount to a jurisdictional error by the Tribunal.

19. The grounds in the notice of appeal from the Federal Magistrates Court are as follows:

    ‘(a)The Decision Maker had identified wrong issue, asking himself a wrong question, ignoring relevant material, making erroneous finding and reaching a mistaken conclusion, thereby committing an error of law constituting jurisdictional error.

    (b)The Decision Maker has exceeded his purported exercise of power in a way, thereby committing an error of law, thereby a constructive failure to exercise jurisdiction along with procedural fairness.

    (c)The Decision Maker was not acting in good faith in making the decision.’

20. No further particulars were furnished.  However, the appellants rely upon written submissions.  The substance of the submissions appears to be that, even though the Tribunal had enough evidence before it to substitute a more favourable decision for the appellants, the Tribunal approached its review of the appellants’ claims on the basis that the Tribunal should look for reasons why the claims should be rejected rather than accepted.  The appellants contended that the Tribunal’s reasons show that the Tribunal did not address the appellant husband’s claim by asking whether he has a well-founded fear of persecution for a Convention reason, but in substance asked whether there was any evidence that would enable the Tribunal to reject the appellants’ claims.

21. If anything, that is an allegation of bias.  Bias, of course, may well be a basis for interference with the decision of the Tribunal.  However, I do not consider that a fair reading of the Tribunal’s reasons indicates that the Tribunal in effect reversed the onus as the appellants submit.  Indeed, there is no onus in an administrative proceeding such as that involved in the Tribunal.  The Tribunal summarised the claims made by the appellants and set out in considerable detail the country information to which it had regard.

22. The appellants also referred to the fact that the Tribunal accepted that the appellant husband “has been persecuted at Home and as well as overseas by both the LTTE and home authorities”.  That, however, is not necessarily the finding made by the Tribunal, but is rather a restatement of the claims.  The reasoning in the appellants’ written submissions is that, even though the Tribunal accepted that the appellant husband was persecuted, it concluded that the appellant husband had no well-founded fear of persecution.  The submission continues to the effect that this demonstrates that the Tribunal had come to the hearing with the firm opinion of rejecting the application regardless of the positive facts of the case.  I do not consider that a fair reading of the reasons supports such a contention.  In substance, the submissions seek a review of the merits of the Tribunal’s decision. 

23. The written submissions also quarrel with what is said to be the Tribunal’s attempt to predict the foreseeable future.  Reliance is placed upon newspapers, of recent times, that, it was contended, demonstrate that the LTTE peace process has derailed and that the peace process had stalled indefinitely.  The submissions make the assertion that both the Sri Lankan government and the LTTE are going back to their old attitudes of persecuting each other, with the result that an innocent person like the appellant husband would be the target of victimisation from both sides.

24. The submissions assert that the Tribunal relied on outdated country information and had not discussed that information with the appellant in order to give him an opportunity to comment on the present position in comparison with outdated country information.  The submissions referred to current articles said to relate to the position in Sri Lanka.  However, those articles included articles published after the Tribunal’s decision.  The relevant date for determination of an application for a protection visa and the status of the applicants for that purpose is the date of the Tribunal’s decision.

25. The Tribunal was obliged, therefore, to assess conditions in Sri Lanka as at that time and it did so.  I do not understand the appellants’ complaint to be that the Tribunal failed to have regard to material that was current at the time of its decision.  The Tribunal found that there had been a material change in circumstances since the appellant husband’s departure from Sri Lanka in 1984.  That is a factual matter for the Tribunal and could only be challenged if the conclusion was not open on the material before the Tribunal.  Even if there were a wrong finding of fact, that of itself is not an error of law such as to constitute jurisdictional error.

26. The appellants’ claim that the Tribunal member ought to have seen what would happen to the peace process in the near future has no substance.  The contention is that the foreseeable future had not been foreseen properly.  Taking into consideration the nature and number of similar peace projects that have taken place in Sri Lanka, the process was doomed to result in failure.  That, however, is a factual matter for the Tribunal. If the Tribunal erroneously foresaw the future, it was not jurisdictional error.

27. That may be a good ground for an application to the Minister to make a more favourable decision, having regard to changed circumstances since the time of the Tribunal’s decision. Indeed, the learned Magistrate recommended that the Minister consider exercising her discretion under s 417 of the Migration Act 1958 (Cth) to substitute a more favourable decision than that of the Tribunal.

28. I am not persuaded that there was any error on the part of the learned Magistrate in dismissing the application.   It follows in my opinion that the appeal should be dismissed.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:       

Dated:            24 March 2004

The Appellant husband appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Ms E Warner, Australian Government Solicitors
Date of Hearing:	2 February 2004
Date of Judgment:	2 February 2004