SXFB v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 296

FEDERAL COURT OF AUSTRALIA

SXFB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 296

SXFB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SAD 238 OF 2004

SELWAY J
15 MARCH 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 238 OF 2004

BETWEEN:	SXFB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	15 MARCH 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.          Application dismissed.

2.          The applicant to pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 238 OF 2004

BETWEEN:	SXFB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	15 MARCH 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant is unrepresented. He has made an application under Part 8 of the Migration Act 1958 (Cth) (the Act), alleging that the Refugee Review Tribunal (the RRT) in its decision of 6 October 2004 made various errors of law in relation to him. The difficulty with this application is that it is precluded by s 476 of the Act. An allegation of a mere error of law by the RRT in relation to an application for a protection visa is a ‘privative clause decision’ for the purposes of that section and consequently, this court does not have jurisdiction to hear the applicant’s claim.

2. This court does have jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to hear a claim that the purported decision of the RRT was not a decision at all, because the RRT made a jurisdictional error: see Plaintiff S157/2002 v the Commonwealth (2003) 211 CLR 476. However, the application in this case does not purport to be made under s 39B of the Judiciary Act.  Some of the alleged errors of law identified in the application may involve a jurisdictional error, for example, that the decision was not authorised by the Act, but others would not appear to involve such an error.

3. The applicant applied to have his application treated as one made under s 39B of the Judiciary Act. It is clearly unsatisfactory, of course, to proceed on that basis. It leaves both the grounds of review and the relief sought in an inappropriate state for an application inder s 39B of the Judiciary Act. Nevertheless, given that the applicant is self-represented, it is the only sensible course to adopt. Consequently, I have treated the application as an application seeking judicial review under s 39B of the Judiciary Act.  Proceeding on that basis, I have nevertheless found that no jurisdictional error has been disclosed and consequently the application must be dismissed.

4. The applicant is a citizen of Sri Lanka.  He arrived in Australia on 17 April 2003 and lodged an application for a protection visa on 20 May 2003.  In order to obtain such a visa, the Minister had to be satisfied that Australia owed protection obligations to the applicant.  In general terms the Minister had to be satisfied that the applicant was a person who -

   ‘… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

5. The applicant claimed to have a well-founded fear of persecution by reason of his political opinion.  There would seem to have been two elements of that claim.  First, the applicant said that he was active in the Sri Lanka Freedom Party (the SLFP) and assisted in distributing electoral material on its behalf.  He said that he was threatened by political opponents in relation to that activity.  The second element, related to the first, was that he claimed he had made allegations in relation to a UNP supporter and that it was believed he still had documents relating to that person.  He feared harm from that person.  He said that although the SLFP was now in government, it would not protect him because he did not work for that party at the last general election.

6. The applicant’s claims were not accepted by a delegate of the Minister, and the applicant sought a review of that decision by the RRT.  The applicant submitted various written materials to the Tribunal.  He appeared before the Tribunal and answered questions put to him by it.  The reasons of the Tribunal revealed that it was reconstituted during the course of the hearing:

   ‘On 20 July 2004 the Tribunal informed the applicant that his case had been constituted to another member and invited the applicant to submit any new information within 14 days.  On 4 August 2004 the applicant requested a further 14 days to provide information, a request which the Tribunal granted.  On 18 August the applicant’s adviser wrote to the Tribunal, indicating that the applicant had not been able “to obtain any supporting documentary evidence for his claims”; he reiterated the claims made to the Tribunal in the submission of 10 May above.’

7. The Tribunal did not accept the credibility of the applicant.  The RRT said:

   ‘The applicant essentially claimed that he would be persecuted if he returned to Sri Lanka because of his support of the SLFP and the consequential targeting by him of a UNP parliamentarian …

   The Tribunal has serious concerns about the veracity of these claims essentially because of the applicant’s less than convincing answers to questions related to his work in the party and the motivation of his would-be persecutors.  The applicant was vague on a number of crucial points …

   The Tribunal gives the applicant the benefit of the doubt and accepts that he was an SLFP supporter, it accepts that he may have attended some meetings of the SLFP but does not accept that his profile was such as to attract adverse attention from supporters of another party.  In a similar manner, the applicant showed poor knowledge of the activities of [the UNP parliamentarian] other than to repeat that [the parliamentarian] had done a lot of “wrong things in his career” …

   Given the evidence and discussion in the above three paragraphs, the Tribunal does not accept that the applicant was involved in gathering intelligence about presumed illegal activities of [the parliamentarian]; it does not accept that he was hit by two men, alleged supporters of [the parliamentarian] and it does not accept that he was ever detained for reporting the alleged attack on him.  The Tribunal does not accept that the applicant was sought in November 2002 as claimed and finds that the issue of the documentation of [the parliamentarian’s] illegal activities is a fabrication.

   The applicant claimed at the hearing that his family was being threatened on his account.  Given the above findings and the fact that this claim was first raised at the hearing, the Tribunal does not accept that his parents are being threatened because of him.

   The applicant raised the issue of his not being able to get help from the SLFP because he has not helped them in the last election and because the JVP is part of the current government.  The Tribunal’s findings do not give rise to any requirement that the applicant be helped by the SLFP or any other party in Sri Lanka.  The Tribunal has also found that he does not have a political profile in Sri Lanka.

   The Tribunal finds that the applicant has not suffered any past harm for reasons of his actual or imputed political opinion and given the above discussion, the Tribunal finds that there is not a real chance that the applicant would face persecution for reasons of his real or imputed political opinion, or any other convention reason, should he return to Sri Lanka, thus his fear of persecution is not well founded.’

8. The findings made by the RRT were findings as to credibility.  There is no jurisdictional error apparent in the reasons or in the findings of the RRT.  The submissions made by the applicant were directed to the merits of the decision reached by the RRT, which is not within the jurisdiction of this court.

9. The applicant produced to the Court a letter, apparently in Sinhalese, which he said served to verify his claim that he had been falsely arrested in the past.  The applicant informed me that a translation would be available in some weeks, and sought an adjournment for that to happen.  He also informed the Court that he had made the relevant allegation to the RRT.  It is unnecessary, in my view, to wait for any translation.  Given that the jurisdiction of this court is limited to the identification of jurisdictional error, the letter is not relevant to any issue that I can determine.

10. There is one matter that should be mentioned, although it was not raised by the applicant.  As already noted, the RRT was reconstituted during the course of its consideration of the review.  Section 422 of the Act provides, in part:

    ‘(1)If the member who constitutes the Tribunal for the purposes of a particular review:

    (a)     stops being a member; or

    (b) for any reason, is not available for the purpose of the review at the place where the review is being conducted;

    the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.

    (2)If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.’

11. Plainly, the reconstituted Tribunal is not required to commence afresh: see Liu v Minister for Immigrationand Multicultural Affairs (2001) 113 FCR 541. Plainly, there may also be circumstances where the reconstituted Tribunal, in order to perform its function of review in accordance with the Act, may need to revisit some steps that the other member had previously undertaken. In this case, however, there is no reason to think that the reconstituted Tribunal could not proceed in the manner that it did. For these reasons, the application must be dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             22 March 2005

Counsel for the Applicant:	Applicant appears in person
Counsel for the Respondent:	K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	15 March 2005
Date of Judgment:	15 March 2005