VAAN v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 978

FEDERAL COURT OF AUSTRALIA

VAAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 978

Migration Act 1958 s 474

NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 cited
NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281 cited
NAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 cited
Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 cited
Boakye‑Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 cited
Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498 cited
Craig v South Australia (1995) 184 CLR 163 at 179 cited
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 cited

VAAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 36 OF 2002

SUNDBERG J
7 AUGUST 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 36 OF 2002

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

JUDGE:	SUNDBERG J
DATE OF ORDER:	7 AUGUST 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 36 OF 2002

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

JUDGE:	SUNDBERG J
DATE:	7 AUGUST 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

1. The applicant is a citizen of Sri Lanka of Sinhalese ethnicity.  He arrived in Australia with his nine year old daughter on 5 November 2001 as the holder of an entertainment visa that was due to expire on 30 November 2001.  The applicant later admitted that the claim in his visa application that he was a member of a dancing troupe was false, and that he used it as a pretext to leave Sri Lanka.  On 9 November 2001 the applicant lodged an application for a protection visa claiming to fear persecution by reason of his political opinion, namely his and his family’s support of the Sri Lankan Freedom Party (“SLFP”).  The application was refused and the Refugee Review Tribunal affirmed that decision.  The applicant seeks review of the Tribunal’s decision.

   TRIBUNAL’S FINDINGS

2. The Tribunal:

   ·accepted that the applicant was a long‑time supporter of the SFLP who organised and addressed meetings, canvassed, erected banners and recruited members

   ·accepted that he was assaulted and threatened after the 1994 elections, but noted that he took no steps to leave Sri Lanka until seven years later, and conceded that his problems at that time were minor, “indicating that he did not himself have a continuing subjective fear for his safety”

   ·did not accept that he went into hiding after the 2000 elections out of fear for his or his daughter’s well‑being, and in this connection noted that he said he continued to live at the same address, work at the same job and campaign openly for the SLFP until he left Sri Lanka

   ·in view of the applicant’s false claim about going into hiding and his false claim in his visa application that he was an entertainer, did not accept that the applicant encountered any of the problems he claimed to have faced in 1999 or 2000, namely that there was an attempt to set fire to his house, that stones were thrown at him, that his daughter was abused and threatened and that neighbours associated with the United National Party were antagonistic to him

   ·concluded that even if the applicant did face such problems in the context of election campaigns, having considered his profile in the light of country information about Sri Lanka, he would not face a real chance of persecution for reasons of his actual or imputed political profile either now or in the foreseeable future

   ·accepted that there were outbreaks of violence in the context of elections, including the 2000 elections, but on the basis of country information indicating that the authorities are willing to take action in relation to any complaints and that police protection is available to all citizens, regardless of their political allegiance, concluded that the applicant would be able to call upon the State to give him effective protection

   ·noted that any risk of harm in the context of acts of violence committed by all political parties lacked the selective or discriminatory character that is inherent in the notion of Convention persecution

   ·found that various references and other documents relied on by the applicant in support of his claim were not genuine

   ·noted country information that document forgery was “widely and well practised” in Sri Lanka and that it was easy to obtain forged documents.

3. In relation to the references referred to in the penultimate dot point, the Tribunal said:

   “The two documents that are purportedly from a member of Parliament state that the applicant is well‑known to the writer.  However, they misspell the applicant’s name and contain only general information about his alleged difficulties.  Additionally, the letterheads misspell the writer’s claimed job as ‘member of parliment’ …

   The document purportedly from a hospital contains no relevant detail of any treatment under the appropriate heading and contains irrelevant and lay language regarding the perpetration of the alleged crime that led to hospitalisation.  … It relates, in any case, to an alleged assault on a relative of the applicant at a time when the applicant was outside Sri Lanka.  The applicant has no firsthand knowledge of the alleged assault and the Tribunal is not satisfied on the evidence before it that any such assault indicates a real chance of persecution of the applicant for any Convention reason.

   A letter from a friend of the applicant is vague about the applicant’s alleged problems.  Although the writer claims that the applicant was at risk of harm after the elections of December 2001 the applicant had, in fact, already left Sri Lanka prior to that poll.  … [The letter] does not indicate, in any event, and especially considering the Tribunal’s findings about the availability of State protection and related matters, a real chance of persecution of the applicant for any Convention reason.”

4. The documents referred to in par 3 were in English.  The Tribunal also referred to two documents that were not in English.  The first was a letter from a village peace officer which the applicant said related to the problems he faced due to his political commitment.  The Tribunal noted that at the hearing the applicant said the letter was “essentially illegible”.  It does not appear to have been translated for the Tribunal.  The second document was a police report relating to events affecting the applicant’s father in law.  The report was orally translated for the Tribunal by the applicant or his interpreter.  The Tribunal said:

   “Considering aforementioned information as to the ease and frequency of document fraud in Sri Lanka and taking into account the language of the police report read out by the applicant during the hearing, the Tribunal concludes that the document is not genuine.  Even if the report were actually issued by police the Tribunal notes and gives weight to the fact that the applicant was outside Sri Lanka at the time of the alleged problems faced by his father‑in‑law; that the (heated) election campaign has now concluded; and that the alleged complainant had a profile that is significantly higher than that of the applicant.  The Tribunal finds, therefore, that any report made to the police by the applicant’s father‑in‑law in mid‑December 2001 does not indicate a real chance of persecution of the applicant himself for any Convention reason.”

   GROUNDS OF REVIEW

5. The application for an order of review refers to “grounds under s 476 of the Migration Act 1958”. It is said that further details would be forwarded. They have not been. The application was filed after 2 October 2001, and accordingly Pt 8 of the Act (as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)) applies. Part 8 no longer creates a statutory right of review of Tribunal decisions. The jurisdiction of the Court to review Tribunal decisions is now derived from s 39B of the Judiciary Act 1903 (Cth). The Tribunal’s decision is a “privative clause decision” within s 474 of the Act. The effect of s 474(1) has now been considered in many cases. The Minister explained the ambit of s 474 in the Second Reading Speech as follows:

   “The result is to give decision makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently.

   In practice, the decision is lawful provided:

   ·the decision maker is acting in good faith;

   ·the decision is reasonably capable of reference to the power given to the decision maker – that is, the decision maker had been given the authority to make the decision concerned, for example, had the authority delegated to him or her by the Minister for Immigration and Multicultural Affairs, or had been properly appointed as a tribunal member;

   ·the decision relates to the subject matter of the legislation – it is highly unlikely that this ground would be transgressed when making decisions about visas since the major purpose of the Migration Act is dealing with visa decisions; and

   ·constitutional limits are not exceeded – given the clear constitutional basis for visa decision making in the Migration Act, this is highly unlikely to arise.”

   That is essentially the view taken of the effect of s 474 in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263, NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281, NAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 and Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 and other cases.

   In the present case there can be no suggestion that any of the provisos referred in the Second Reading Speech are applicable.

6. A different view of the effect of s 474 has been taken in other cases. See for example Boakye‑Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 and Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498. A specially constituted Court of five judges has been convened with a view to resolving the differences of opinion that have emerged in the first instance decisions. It is not appropriate that I await the decision of that Court before giving judgment in this case, because even if one were to apply the common law grounds of review considered in Craig v South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 21‑22, it would not assist the applicant. As I have said, his application contains no grounds of review, and the promised further details and amended application were not forthcoming. A careful reading of the Tribunal’s decision discloses no error of law. It did not identify a wrong issue, ask the wrong question, ignore relevant material or rely on irrelevant material. It had before it evidence that supported its findings. It was entitled to conclude that the applicant was not credit worthy. He admitted he had lied in his application for an entertainment visa. He propounded documents the Tribunal was entitled to conclude were not genuine. I have inspected the documents written in English and agree with what the Tribunal said about them. The Tribunal could have added in relation to the two letters from Mr Perera, the Member of Parliament, that no explanation had been offered as to why a Member of Parliament would write two letters in support of the applicant, six days apart, the first paragraphs of each of which are identical, and the balance of which differ.

7. At the hearing the applicant said the Tribunal had wrongly refused to defer the hearing to enable him to obtain documents from Sri Lanka.  On 21 December 2001 the Tribunal notified the applicant that the hearing had been set down for 4 January 2002.  On 27 December 2001 the applicant’s solicitor requested a postponement on the ground that the applicant was making arrangements to obtain documents to support his case.  No particulars of the documents were provided.  The Tribunal refused to postpone the hearing saying that since the applicant was in detention it must treat the case as a priority matter.  It said that any submissions seeking extra time to submit new material could be made at the hearing.  On 3 January 2002 the applicant’s solicitor lodged a submission with the Tribunal dealing with the merits of the application.  It did not mention a postponement, and there is nothing in the Tribunal’s reasons to indicate that that issue was raised during the hearing.  In those circumstances the refusal of the adjournment to enable the location of unspecified documents did not amount to a denial of procedural fairness.

8. The applicant also submitted that the Tribunal should have caused the two documents referred to in par 4 to be translated.  The village peace officer letter was not translated.  But since the applicant himself told the Tribunal it was “essentially illegible”, there was no denial of procedural fairness in not having it translated.  Even if there were, I would not have granted relief.  The applicant said the letter related to problems he faced due to his political commitment.  In this connection the Tribunal said it had recorded its reasons and findings for rejecting the claim that the applicant faced any real chance of harm based on that commitment.  Especially because the letter was “essentially illegible”, there is no prospect that the Tribunal’s decision would have been different if the document had been translated.

9. It is true that the Tribunal did not have a written translation of the police report.  However it was orally translated, and the Tribunal was able to deal with it.  It noted that, assuming it to be genuine, it did not relate to the applicant but to problems faced by his father in law.  There was no denial of procedural fairness in not having a written translation of the report.  Even if there had been, I would not have granted relief.  As I have said, the Tribunal was apprised of the content of the report, and the report did not relate to the applicant’s own problems.

   CONCLUSION

10. The application must be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:             7 August 2002

The applicant appeared in person
Counsel for the Respondent:	C Horan
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	22 July 2002
Date of Judgment:	7 August 2002