SZEAD v Minister for Immigration
[2005] FMCA 1524
•28 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEAD & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 1524 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 483A
Judiciary Act 1903 (Cth), s.39B
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192
NARE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 554
NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354
| Applicants: | SZEAD, SZEAE & SZEAF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2267 of 2004 |
| Delivered on: | 28 October 2005 |
| Delivered at: | Sydney |
| Hearing date: | 14 September 2005 |
| Final submissions: | 30 September 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicants: | Mr A Kumar |
| Solicitors for the Applicants: | Bharati Solicitors |
| Counsel for the Respondent: | Ms K Morgan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The adult applicants are to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2267 of 2004
| SZEAD, SZEAE & SZEAF |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 20 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
13 August 1999 and handed down on 13 August 1999, affirming the decision of the delegate of the respondent (“the delegate”) made on
5 May 1997 to refuse to grant the applicants a protection visas. The applicants seek unstated relief against the decision of the Tribunal.
Background
The applicants in these proceedings are not to be identified pursuant to provisions of s.91X of the Act and have been given the pseudonym “SZEAD”, “SZEAE” and “SZEAF”.
The applicant, his wife and his daughter, who are citizens of Sri Lanka, arrived in Australia on 11 May 1996. On 29 January 1997 the applicant lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp. 9-65) (“CB”). On the same day the applicant’s wife lodged her application and the daughter was included as a member of the family unit. On 5 May 1997 the delegate refused to grant protection visas (CB pp.66-74) and the applicants were notified of that decision on the same date. On 27 May 1997 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.76-79). On 18 February 1998 the Tribunal affirmed the decision of the delegate to refuse the grant of protection visas. That decision was appealed in the Federal Court and on the judgment of Heerey J on 20 November 1998 the matter was remitted back to the Tribunal for further hearing. On 13 August 1999 a differently constituted Tribunal affirmed the decision of the delegate to refuse the grant of protection visas.
The applicant husband was born in Wellawatta, Colombo in 1961 and is a Buddhist of Sinhalese ethnicity. He attended school from 1966 to 1977 and was then employed as a printer. The applicant has a sister and brother-in-law living in Australia, a brother living in Canada and his mother and two sisters reside in Sri Lanka (CB p.142).
In a detailed submission dated 21 January 1997, it was claimed the applicant feared for his life because of his investigations into the death of his brother (CB pp.1-8). The historical background to events in Sri Lanka was sketched. Of importance was the reference to Mr Premadasa who became President of the country in December 1998. While he was of lower caste than other leaders, it was claimed that he was determined to hold high office. His rivals at the time included the Oxford-educated Minister of Defence, Lalith Athulathmudali, and the Minister for Mahaveli Development, Gamini Dissanayake, who had family connections with the incumbent but soon to retire President, Mr Jayawardene.
The applicant claimed that his family had a long association with Mr Premadasa and it was for this reason that President Premadasa trusted the applicant’s brother, a senior police officer, to be part of his personal bodyguard. The applicant claimed that his brother was privy to many confidential party and cabinet discussions. His brother told the applicant that Mr Premadasa had nothing to do with the assassination of Lalith Athulathmudali and had been shocked to find that accusations were being made against him. The applicant’s brother also told him about an acrimonious meeting between the President and Sirisena Cooray, one of his trusted lieutenants. His brother told him that Mr Premadasa believed that Mr Cooray and his team were responsible for the assassination and had threatened the latter with expulsion from the United National Party (UNP). It was claimed that Mr Premadasa had intended to make an admission that it was people around him who had arranged the killing.
The applicant claimed that in the early hours of 1 May 1993 his brother sent for him. He was extremely nervous and upset and indicated to the applicant that the relationship between Mr Premadasa and Mr Cooray had deteriorated and that Mr Premadasa intended to expose Mr Cooray and his clique at a party rally due to be held that day. His brother expected that Mr Cooray would retaliate and was worried about his own safety. The applicant claimed that his brother was killed later that day at the time when Mr Premadasa was assassinated. The applicant claimed that subsequently he discussed these conversations with police officers in whom he had some trust. He was told that although they too suspected that the killings were an “inside” job, they were willing to go along with the story that the assassin was a Tamil. The applicant was given to understand that the real perpetrators were too powerful and that they, the police officers, would lose their jobs if they inquired too closely (CB pp.142-143).
Further details, dealing with the circumstances that arose subsequent to that murder, are contained in the Court Book at pages 142-148 and I will not reproduce those details in this judgment.
Applicant’s claim
The applicants’ claims are based on the applicant husband’s claim to fear persecution. He claims to fear persecution in Sri Lanka because of investigations into the death of his brother. Specifically, he claimed his brother was killed along with President Premadasa during the rally of
1 May 1993 and in a subsequent bomb attack his niece was also killed. At his niece’s funeral, the applicant claimed he made some comments which were not well received by some party members, police personnel and their contacts present at the occasion. The applicant also claimed that subsequently he and his wife began to receive threats from unknown people on the telephone and he noticed movement of suspicious people around their home and places of work.
The applicant decided to leave Sri Lanka and after his arrival in Australia claimed he learned that various politicians had been looking for him and had threatened that if he returned to Sri Lanka they would harm him.
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons were contained in the respondent’s written submissions prepared by Ms Morgan and I adopt paragraphs 9-11 of those submissions for the purpose of this judgment:
The Tribunal set out the legislative requirements for a protection visa (CB pp.140-141); and summarised the applicant’s claims and the evidence provided in the oral hearing (CB pp.141.9-148.6).
The Tribunal made the following findings:
(a)the Tribunal accepted the context of the applicant’s claims was the violence that accompanied political life in Sri Lanka particular in the 1990’s;
(b)the Tribunal was satisfied that the applicant had knowledge in relation to a political assassination that was similar to that of others in that he disbelieved the official version that the LTTE was responsible and it accepted that his belief was informed by his brother’s account to him;
(c)the Tribunal did not accept that the allegation was in fact true so it was not satisfied that the applicant husband was the holder of knowledge which was unavailable from other sources and which would come as a revelation to Sri Lankans;
(d)the Tribunal was satisfied that the offence which led to the death of the applicant’s husbands’ brother was not directed towards that brother but that the target was President Premadasa;
(e)in addition the Tribunal noted that there was no convincing evidence that the applicant’s husbands’ brother, although a senior policeman who could have attracted enemies, was a deliberate target of the assassin(s) nor that members of his family would face harm from the same quarter by reasons of their family relationships;
(f)the Tribunal was not satisfied that the applicant husband actually knew anything more than that has been rumoured or published in that country;
(g)the Tribunal accepted that the applicant husband was frightened by what he was told, by his brother’s death and the fact that later he made a semi-public statement about this at his niece’s funeral however, the Tribunal found that there was no convincing evidence that the applicant husband was under threat of harm at the time of his brother’s killing to the time of the funeral of his niece;
(h)evaluating the threats said to have been made against the applicant husband’s life the Tribunal concluded that it was not satisfied that the applicant husband faces a real chance of harm from the person whom he believes to be responsible for violent deaths in Sri Lanka, because:
(i)there was delay of four months before he left for Australia and no harm in fact happened to the applicant;
(ii)the Tribunal did accept that the applicant husband was frightened and wanted to leave the country;
(iii)there was no indication that the source of the threat was official as he was granted his passport in March 1996 and left shortly after unhindered; and
(iv)any threat against him would have been criminal even in the context of political events.
The Tribunal was satisfied that whatever the source and level of threats directed to the applicant husband prior to his leaving Sri Lanka they did not support a claim that he continues to need protection outside his country. The Tribunal concluded that it was not satisfied that the applicants are persons to whom Australia has protection obligations.
Application for review of the Tribunal’s decision
On 20 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.The Refugee Review Tribunal erred in deciding that the applicant had no well founded fear of being persecuted for the reason of his political opinion. The Tribunal failed to identify whether the applicant’s reasons come under the Convention reasons. The applicant aggrieved to the decision when it found that any problems that the applicant faces are not Convention reasons.
2.The Refugee Review Tribunal erred in relying on a supposed dichotomy between Political Opinion and personal knowledge. (Errors included)
On 15 December 2004 the applicant filed an amended application which expanded Ground 2 of the original pleadings and contained detailed particulars in respect of that ground:
The Refugee Review Tribunal made a jurisdictional error when it affirmed its first decision in which it found that the applicant had a well-founded fear of the persecution but not for a Convention reason. The Tribunal erred in concluding that the personal knowledge of the applicant about certain events in Sri Lanka could be regarded as being the source of a political opinion or imputed political opinion. The applicant failed to identify whether the applicant’s reasons came under the grounds set in the Convention. The Refugee Review Tribunal erred in relying on a supposed dichotomy between political Opinion and Personal knowledge. The Refugee Review Tribunal failed to apply Real Chance Test.
Particulars
The Tribunal noted in the second decision that ‘he (applicant) said that it is not intention to pursue a campaign to find the killers of his brother. Like many Sri Lankans he wishes for just and orderly society and is fearful of returning to a country where political violence continues. However, the Tribunal is not satisfied that he faces a real chance to harm from the person whom he believes responsible for violent deaths in Sri Lanka. It is satisfied that the knowledge he has and the beliefs he holds are known and held by many other Sri Lankan’.
The applicant claims that in making decision, the Tribunal failed to understand the grounds on which the Federal Remitted to the Tribunal in which His Honour Justice Heery held that the Tribunal had erred in relying upon a supposed dichotomy between personal knowledge and public opinion. It was held that the accusations the applicant claimed, he wished to express publicly involved an opinion that Mr Cooray was unfit for public life.
The Tribunal claimed that at the hearing of second Tribunal, the Principal applicant recounted many of the same claims and issues he made in the first review. He (applicant) repeated that [his] family was a political one, with close associations to significant figures in UNP. He himself was a member and worked to support its campaigns (CB 145).
The applicant claims that he gave oral evidence before the first Tribunal as credible evidence. Neither the first Tribunal nor the Tribunal raised any voice against the applicant’s credibility. It is obvious that in the hearing of the first Tribunal he told the truth about his knowledge and the history of his political opinion. It is obvious that he was remained with the truthful evidence presented in the first hearing and the second hearing. He repeated the same claims because it was genuine and truthful. The applicant claims that the Tribunal misconceived the whole case and made decision before hearing. The applicant was denied procedural fairness when the member of the Second Hearing (Tribunal member) did not act fairly in making decision.
The applicant claims that his grounds are credible and form the substance of the applicant’s fear are consistent and his fear of persecution is related to a convention ground. As the Delegate of the Minister for Immigration was satisfied. The Tribunal Delegate wrote that he ‘was satisfied that the applicant’s actions in this regard’. That is going to media, approaching the police contacts, making representation to his locally represented member, if successful, may result in some legal consequences for persons found to be responsible to law, regardless of their political positions or motivations. The essence and thrust of findings by the Athulatmudali Commission was placed before the Tribunal that Mr Cooray has now returned to Sri Lanka and had vowed that he will contest the findings by the Athulathmudal Commission. He claims that he will reveal much more about other principal players who motivated the Commission.
The applicant claims that in this backdrop, the fear of persecution is well founded and there is a real basis for it. The Tribunal failed to understand the political climate as demonstrated by the exist and return of Sirasena Cooray which clearly enhances the fear of the applicant, which is well founded, and in that various means will be adopted by both sides to enforce checks and balances as to who the rulers will be in the near future in Sri Lanka. The applicant claims that he will be bound to become a victim in the game.
His fear of persecution is genuine for the Convention Reasons. The applicant claims that the Tribunal misunderstood the whole case when it failed to understand and find that the applicant’s actions may include an Endeavour to bring to justice those responsible for the death of brother. However this does not preclude the implications that his actions were politically motivated.
Choosing to remain neutral is not less a political decision than is choosing to affiliate, with the particular faction.
The applicant’s actions gave rise to a political opinion, whether it be actual perceived or imputed. Such actions however small may be contributed to the establishment of the Althulathmudali Commission and its current findings.
The applicant claims that he has a well founded fear of being persecuted for reasons of political opinion and being outside the country of nationality is unable and unwilling, because of such fear to avail himself for the protection of his country.” (Errors included)
With leave of the Court granted on 14 September 2005, the applicant was permitted to file a further amended application in order to rectify the pleadings before the Court and overcome a number of issues being submitted by the applicant that had not previously appeared in the pleadings. The further amended application contained the following grounds:
Well-Founded Fear
(1)The Tribunal erred in making findings of well founded-fear.
(i)The Tribunal failed to apply the real chance test; instead opting for balance of probability test.
(ii)The Tribunal erred in adopting an unduly harsh approach to the well-founded fear.
(iii)The Tribunal is required failed to assess the harm from the perspective of the persecutor instead assessing the harm from the perspective of putative persecute.
Particulars
The Tribunal adopted a line of questioning designed to establish the harm from the perspective of the applicant persectuee asking why he would be harmed rather than addressing as to the motive that Mr Cooray may have in harming the applicant.
(iv)The Tribunal is identified wrong issue; asked itself wrong question; failed to consider relevant material and relied on irrelevant material.
Particulars
The Tribunal erred in asking questions and relying only on the material the perspective of the putative persecute.
Issue Estoppel
(2)In a decision made on 18 February 1998 (decision of B.F. Kissane, member), the Tribunal accepted that the appellant had genuine basis for the fear. The matter was remitted ‘for reconsideration in accordance with law’ by His Honour, Heerey J ([applicant] v Minister for Immigration & Multicultural Affairs (20 November 1998) VG 104 / 1998 (20 November 1998). It is submitted that the Tribunal has completely misconceived this case. His Honour, Heerey J finding is noted below. When the matter was argued before him that the applicant’s fear was well founded or at least did not find that it was not well founded. His Honour (at p4) stated at follows:
‘Notwithstanding the somewhat tentative and conditional way the Tribunal discussed the evidence, counsel for the Minister accepted that the Tribunal had found that the applicant did in fact hold a fear of persecution.’
The second Tribunal constituted made the findings on substantially the same facts when remitted from the Federal Court. The applicants say the findings of the Federal Court are res judicata and are also subject to issue estoppel.
Unreasonableness
(4)The same or similar facts differently constituted Tribunals has been interpreted and applied which is both manifestly unreasonable and unreasonable in Wednesbury sense as the reasonableness of fear appear not to be queries by the delegate, the previous Tribunal (Kissane) and the Federal Court (Heerey J) what His Honour noted (as stated above) is also apposite. at follows:
Legitimate Expectation
(5)This matter has been before the Court as [applicant] v Minister for Immigration & Multicultural Affairs (20 November 1998) VG 104 / 1998 where at Page 4 of decision, His Honour Heerey J notes ‘counsel for the Minister accepted that the Tribunal had found that the applicant did in fact hold fear of persecution’ or ‘the Tribunal did not suggest that such a fear was not “well founded”.’
Based on the Minister’s position as conceded by their legal representative there is a basis of legitimate expectation that the respondent minister will deal with the matter consistent with the position adopted by its legal representative with regard to the issue of well-founded fear.
Procedural Unfairness
(5)Apart from the common law procedural fairness, the Tribunal has failed to consider in accordance with substantial justice and fairness as required under ss.420 and 481 of the Act. Nothing in this suggest that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law (per McHugh, Gummow and Hayne JJ).
(6)It is well settled that the rules of natural justice apply: despite the fact that in Annetts v McCann (1990) 170 CLR 596 at 609, Brennan J stated that ‘the common law will usually imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the exercise of power. This in the foundation and scope of the principles of natural justice’, confirmed by Mason CJ, and McHugh in Annetts v McCann (1990) 170 CLR 596 at 598.
(7)In MIMIA v Yusuf (2001) 206 CLR 323; [2001] HCA 30, when the Minister appealed to the High Court, submitting that as section 430 did not prescribe procedures failed to follow procedure could not be an error of law. Although this is pre October case, it has been quoted with approval in Boakye-Danquah v MIMIA (2002) FCA 438 (11 April 2002) (per Wilcox J) and other recent cases.
(8)Although the rules talk about discretion, the rules of procedural fairness is not waived. The High Court by a narrow majority in Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Miah [2001] HCA 22; (2001) CLR 57 (‘Miah’) rejected the notion that the procedures mandated in the Act for departmental procedure and exclude an additional requirement to accord procedural fairness. Therefore in matters of importance it is important that the applicant be given opportunity to comment on the material forming the basis of the decision.
Legitimate Expectation
(9)In addition to or in the alternative to estoppel, the respondent previously having conceded that the first applicant had genuine basis of fear, it is submitted that there is a basis of legitimate expectation that the respondent minister will deal with the matter consistent with the position adopted by its legal representatives in this proceeding including before His Honour, Heerey J.
(10)Resiling from the position amounts breach of that expectation, the decision capable of being set aside if made by the Minister. There out to be no distinction for the decision, whether made by the Tribunal or the Minister for the purpose of consistency. The decision has to be set aside.
(11)The applicants submit that the Tribunal embarked upon the inquiry that had already been made a differently constituted Tribunal. The applicants submit that these errors constituted jurisdictional error/error of law nature amenable to the relief sought in the amended application.
(12)Any one of these errors in sufficient to set aside the decision. In the circumstances, it is submitted that the appropriate course for the Honourable Court ought to make orders sought with orders for costs. (Errors included)
Submissions
Both parties filed written submissions prior to the hearing on
14 September 2005. During the course of the hearing it became apparent that a number of the issues the applicant’s Counsel was attempting to argue were not contained in the formal pleadings before the Court. Counsel for the applicant was granted leave to file a further amended application in relation to these issues and the respondent Counsel was provided an opportunity to file further supplementary submissions in response to any pleadings made by the applicant which had not been previously formally responded to.
Reasons
I believe the most convenient way to resolve the issue of the further amended application, introducing and expanding on a number of concepts which are misconceived and irrelevant to the Tribunal decision handed down on 13 August 1999, is to adopt the supplementary submissions of the respondent prepared by Ms Morgan and filed on 30 September 2005 which directly addressed this problem. Accordingly, I adopt paragraphs 3-9 of those submissions for the purpose of this judgment:
Consistently with the written submissions the applicants have purported to claim that the Tribunal and this Court is in some way bound by an earlier decision on judicial review by the Federal Court, on the following bases:
a)Issue estoppel;
b)Legitimate expectation before the Tribunal;
c)Legitimate expectation before this Court; and
d)Unreasonableness
Putting to one side the procedural difficulties faced by the applicant by purporting to rely on these principles in application pursuant to section 39B of the Judiciary Act, each basis may be rejected.
The decision by Heerey J in [Applicants] v Minister for Immigration & Multicultural & Indigenous Affairs [1998] FCA 1480, resulted in the following orders:
(i)The decision of the Refugee Review Tribunal dated 18 February 1998 is set aside.
(ii)The matter be remitted to the Tribunal for reconsideration in accordance with law.
(iii)The respondent pay the applicants’ costs, including reserved costs.
Once remitted, the Tribunal is once again exercising its power pursuant to sections 411, 414 and 415 of the Migration Act to review the delegate’s decision and “exercise all the powers and discretions that are conferred by the Act on the person who made the decision”.
The decision therefore by the Tribunal is itself a new decision, subject to review by this Court pursuant to section 39B of the Judiciary Act. Further, in the present context, a new decision has been made and the parties may only make submissions on that decision. Any attempt to rely on earlier judicial review proceedings is misconceived.
This case may be contrasted to the situation the Federal Court faced in Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 722; 89 ALD 109 where Lindgren J was dealing with the same decision of the respondent, but in the guise of constitutional writs in the High Court and section 39B proceedings in the Federal Court. Lindgren J concluded in such a matter that concepts such as issue estoppel could be applicable. That is not the case here. In the present case there are two different Tribunal decisions, and therefore different decisions under review.
In short:
a)there is no issue estoppel between the applicants and the respondents because of any earlier Federal Court judicial review of another Tribunal decision;
b)any legitimate expectation that the applicants had formed was from a misunderstanding of the judicial review process; and
c)it is not unreasonable for the Tribunal to decide, pursuant to its statutory obligations, whether the applicants are entitled to protection visas without considering itself bound by an earlier Tribunal decision.
When his Honour Heerey J remitted the decision of 18 February 1998 back to the Tribunal to be dealt with according to law, the Tribunal was obliged to conduct a further hearing and exercise its statutory powers pursuant to the Act. Any concessions made by the respondent Minister on the judicial review on the first Tribunal decision are confined to that Tribunal decision (Tribunal Reference No: V97/06528 constituted by B F Kissane). The matter now before this Court led to the judicial review of the Tribunal’s decision made on 13 August 1999 (Tribunal Reference No: V99/09703 constituted by J Wood). The contents and outcome of the first Tribunal decision have no relevance or bearing on the matter currently before this Court. I accept the argument submitted by Ms Morgan as a correct statement of the law and it correctly applies to the arguments submitted on behalf of the applicant.
Putting to one side the issues raised by the applicant consequential to the first Tribunal decision, there remains a number of other issues to be addressed although these are not immediately isolated because of the nature of the pleadings and their subsequent amendments by the applicant. Without referring directly to any specific pleading, I will attempt to distil the remaining issues and address each one in turn.
To the extent that the Tribunal is alleged to have made a jurisdictional error by confirming the decision that the applicant had a well founded fear of persecution but not for a Convention reason, this is not a ground of review as the Tribunal affirmed the decision of the delegate and not the decision of the first Tribunal. When the Tribunal made that decision it was engaged in an exercise of its statutory powers and that is not a ground for review.
In respect of the submission that the Tribunal erred in concluding that the personal knowledge of the applicant concerning certain events in Sri Lanka would be regarded as being the source of political opinion or imputed political opinion is a finding of fact. The Tribunal evaluated the applicant’s personal knowledge of events in Sri Lanka and decided that that knowledge, shared by many Sri Lankans, could not form the basis of persecution. This purported ground of review is an attempt to challenge the merits of the decision and would require the Court to enter into a merits review. Clearly, a merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at [31]:
“…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
A merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on the lawfulness of the earlier decision. A judicial review asks whether the decision maker was authorised to do what he did under the prevailing law, not whether the actual decision was the best decision which could have been made in the circumstances. It has been emphasised on numerous occasions and in particular by Allsop J in SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs and NARE v Minister for Immigration & Multicultural & Indigenous Affairs and also in the Full Court of the Federal Court in NAAH v Minister for Immigration & Multicultural & Indigenous Affairs the Court cannot engage in a merits review and it is not part of its task to do so.
The claimed failure to identify whether the applicants’ reasons came under the grounds set out in the Convention, cannot be sustained. The submission provided by the applicants’ legal representatives attached to the original protection visa application made the claim for persecution based on the applicants’ political opinion perfectly clear. The letter from Wisewoulds, Solicitors and Attorneys, dated
21 January 1997 (CB pp.1-8) set out in some detail the nature of the claim and particularly states that the nature of the persecution was directly attributed to political opinion.
It was claimed the Tribunal erred in relying on a supposed dichotomy between the political opinion and personal knowledge of the applicant. The Tribunal evaluated the facts necessary to support the applicant husband’s claim of persecution based on political or imputed political opinion. The Tribunal found in relation to one of those supposed supporting facts that the applicant was not the holder of knowledge that was unavailable to other sources and which would come as a revelation to Sri Lankans. This finding then impacted on the ultimate finding of whether the death threats were objectively evaluated. The Tribunal’s finding on this issue is clearly set out in its decision as follows:
“The Tribunal has considered carefully the level of the principal Applicant’s knowledge of events in Sri Lanka. He was questioned closely on who else knew or could be expected to know of Premadasa’s alleged intention to make a public statement about the DUNF leader’s killing. He pointed to another government minister who was privy to that information. That minister himself was assassinated but some years later and in another political campaign. There is no evidence which suggests his assassination was for reasons of any knowledge he might have had of Premadasa’s intended activities.” (CB p.150)
The remaining ground claimed by the applicants was that the Tribunal failed to apply the real chance test. Again, this contention was not supported by the findings in the Tribunal’s decision. For example:
“The Tribunal notes that he has said that it is not his intention to pursue a campaign to find the killers of his brother. Like many Sri Lankans he wishes for a just and orderly society and is fearful of returning to a country where political violence continues. However, the Tribunal is not satisfied that he faces a real chance of harm from the person whom he believes responsible for violent deaths in Sri Lanka. It is satisfied that the knowledge he has and the beliefs he holds are known and help by many other Sri Lankans.” (CB p.153)
In the further amended application other issues were raised as grounds. However, these were attempts to seek a merits review which has been addressed above. It was unnecessary to review each of these issues in turn as they were clearly not grounds of judicial review.
Conclusion
As the grounds in the applications are general and in a number of instances ill conceived, I have not been able to identify any ground that the Tribunal committed jurisdictional error. The applicants’ claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 28 October 2005
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