VBAC v Minister for Immigration & Multicultural & Indigenous Affairs

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FEDERAL COURT OF AUSTRALIA

VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205

Applicant VBAC of 2002  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 74 of 2002

RYAN J
17 MARCH 2003
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 74 of 2002

BETWEEN:

Applicant VBAC of 2002
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

JUDGE:

RYAN J

DATE OF ORDER:

17 MARCH 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicants pay the respondent’s costs, such costs to be taxed in default of agreement.

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 74 of 2002

BETWEEN:

Applicant VBAC of 2002
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

JUDGE:

RYAN J

DATE:

17 MARCH 2003

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a refusal by a delegate of the respondent Minister to grant the applicants protection visas.  I note that a previous decision of the Tribunal in this matter was set aside by a Full Court of this Court on 17 May 2001 and remitted to the Tribunal for determination according to law.  The first and second applicants are husband and wife and the third applicant is their 7 year-old daughter, who was born in Australia in 1995.  The first applicant (“the applicant”) is now aged 32 and was born in Madige in Sri Lanka. 

  2. The applicant claims to have a well-founded fear of persecution from either the Tamil Tiger movement (“the LTTE”) or the army if he were returned to Sri Lanka.  In essence, he claims that the persecution he fears would result from his having been involved in actions in Kattankudy to defend villages from LTTE incursion in August 1989, which actions resulted in the death of a number of LTTE leaders, although the applicant was not directly responsible for the death of any LTTE member.  He also claims to have suffered one harassing visit from armed LTTE members in 1995 when living in Colombo, Sri Lanka.  That visit, the applicant contends, flowed from his fund raising activities at his mosque in Colombo.  The applicant claims, in addition, that the army in Sri Lanka may have gained the impression that LTTE members had visited him in Colombo because he was a LTTE member, thus putting him at risk of persecution from the army by reason of his imputed membership of a violent political organisation.

  3. The Tribunal in its reasons recited the following information given by the applicant in his protection visa application:

    ‘Why did you leave that country?’

    “I left Sri Lanka because I was threatened by the LTTE Tamil Tigers, for being an active member in a social group known as the JIHADH[this is the applicant's spelling of this…

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Details
Case
[2003] FCA 205
Decision Date

CaseChat Overview and Summary

VBAC, the applicant, contested the Minister for Immigration & Multicultural & Indigenous Affairs' decision, arguing that the Tribunal had misapplied its assessment of the applicant's credibility by relying on an inconsistency that did not exist in the evidence. The applicant's case hinged on whether the Tribunal's inference regarding the applicant's credibility was permissible under the facts presented. The legal issues revolved around whether the Tribunal had failed to consider relevant matters, considered irrelevant matters, or made a material error of fact. The High Court's recent decisions in Re Minister for Immigration & Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002 and Plaintiff S157/2002 v Commonwealth of Australia provided the framework for reviewing the Tribunal's decision, allowing for review even in the absence of a traditional error of law, if there was a failure to exercise jurisdiction or an excess of jurisdiction.

The court found that the Tribunal's decision was not based on a material error of fact or an excess of jurisdiction. The Tribunal was entitled to assess the applicant's credibility based on the evidence before it, and any error in this assessment did not render the decision a nullity. The court dismissed the applicant's claims that the Tribunal had failed to consider relevant evidence or had considered irrelevant matters, finding that the Tribunal's preference for certain country information was not reviewable. The court held that the Tribunal had correctly evaluated the applicant's involvement in anti-LTTE activities and had not erred in its assessment of the applicant's credibility. Consequently, the application was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicants pay the respondent’s costs, such costs to be taxed in default of agreement.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

RYAN J
Putting to one side the question of whether the Tribunal failed to consider possible persecution of the applicant by the army (which, for the reasons given above, it was logically unnecessary for the Tribunal to consider), the applicant’s case was ultimately a simple one. It was, in essence, that the Tribunal had drawn an inference as to credit that was not open to it on the facts. That case rests upon the premise that, fundamental to the Tribunal’s decision, was the weight which it gave to, in Mr Krohn’s words, “an inconsistency [in the applicant’s evidence] which did not in fact exist”. Whether “material error of fact”, in the sense of there having been “no evidence or other material to justify the making of the decision”, can be relied upon, without more, as a ground of judicial review (other than under the Administrative Decisions (Judicial Review) Act 1977 (Cth)) was a question raised, but not decided, in R v Criminal Injuries Compensation Board, Ex parte A [1999] 2 AC 330, and adverted to in S134/2002 by Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ at [35]-[37]. Irrespective of its availability in the present case, it is not an error which would deprive the Tribunal of jurisdiction, making its decision a nullity. The allegedly mistaken fact did not result from the Tribunal’s having exceeded any limit upon its powers, or having failed to comply with an obligation that would deprive it of jurisdiction. If there was an error, it occurred in making an assessment of the applicant’s credit which the Tribunal was entitled to make on the evidence before it. Nor am I persuaded, in any event, that there was no probative evidence to support the conclusion which the Tribunal reached so as to make out a case of “material error of fact”, even if that were available by application of the common law to the present case. In none of the respects argued by Counsel for the applicant has there been an error, in my view, reviewable by this Court.Conclusion For the reasons outlined above, the application must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: RYAN J

Two principal issues of fact were agitated at the hearing by Mr Krohn of Counsel for the applicant and Mr Mosley of Counsel for the respondent. Broadly, these issues were the significance of the applicant’s participation in fund-raising activities at the mosque in Colombo and his role in the killing of LTTE members in Kattankudy in 1989, and whether his evidence as to his involvement in these matters had changed over time in a way that cast doubt upon his credibility.Failure to consider relevant matters, and consideration of irrelevant matters. Several submissions were advanced on behalf of the applicant to the effect that the Tribunal had made one or more errors of law in its reasons for decision. Until recently, the judgment of a Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 would have precluded me from upholding any of these submissions unless one of the so-called “Hickman conditions” had been satisfied. However, it appears from the recent judgments of the High Court in Re Minister for Immigration & Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002 [2003] HCA 1 (4 February 2003) and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (4 February 2003), that an applicant can successfully review a decision of the Tribunal, notwithstanding s 474 of the Migration Act 1958 (Cth) (“the Act”), if there has been either a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act. I shall consider the substance of the submissions made on behalf of the applicant, before turning to the effect of the High Court judgments to which I have just referred. First, it was submitted that various irrelevant matters had been taken into account, and relevant matters had not been taken into account. Under this head, it was suggested that the Tribunal had determined the applicant to be a Muslim of Sinhalese ethnicity, whereas he is, in fact, a Tamil Muslim. Despite the implications which that difference might have for a person living in Sri Lanka, this appears a relatively minor error in the context of the decision as a whole. The Tribunal obviously appreciated that the LTTE regarded Muslims as opposed to its interests and the Tribunal clearly identified the applicant as a Muslim. It was also submitted that the Tribunal had not referred to various pieces of information on file about the existence of the Jihadh movement, and had failed to take that evidence into account. It does not follow that, because the Tribunal has not referred to every discrete piece of evidence before it, that there has been a failure to consider relevant evidence. The Tribunal clearly preferred the country information quoted at [5] above. It is not for this Court to interfere with that preference. It was next contended that the Tribunal had wrongly failed to characterise the Jihadh as a social group, being members of the Muslim community who were continually active in resisting the LTTE. It was submitted that the Tribunal had looked for evidence of a coherent, permanent organisation, and failing to find it, had drawn a conclusion adverse to the applicant about his claim to be part of the Jihadh. However, if the applicant’s case is that he was visible to the LTTE as part of an identifiable community which regularly resisted LTTE actions and interests, that claim was, in effect, assessed and rejected by the Tribunal when it concluded:‘The Tribunal accepts that the applicant may have participated as a youth in a spontaneous reaction to some event against the LTTE but does not accept that there is any interest in him as claimed, not only did he leave the east of Sri Lanka soon after the incident but he has not taken part in any activity which could be remotely construed as anti LTTE since that time. More than ten years have elapsed. The Tribunal thus finds that there is not a real chance that the applicant would be persecuted for taking part in one anti LTTE activity in his youth, an activity where the importance of his role was at best peripheral.’