VBAL v Minister for Immigration
[2003] FMCA 120
•7 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VBAL v MINISTER FOR IMMIGRATION | [2003] FMCA 120 |
| MIGRATION – Review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa – no reviewable error disclosed – application dismissed. |
Migration Act 1958 (Cth)
Migration Legislation Amendment (Procedural Fairness) Act 2002
Judiciary Act 1903
Federal Magistrates Court Rules 2001
S157/2002 v Commonwealth of Australia (2003) HCA 2
NAAV v Minister for Immigration Multicultural & Indigenous Affairs (2002) 193 ALR 449
Craig v South Australia (1995) 184 CLR 163
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598
Minister for Immigration & Multicultural & Indigenous Affairs v Yusef (2001) 180 ALR 1
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 611
Applicant A v The Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 264
| Applicant: | VBAL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 808 of 2002 |
| Delivered on: | 7 April 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 29 January 2003 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hannan |
| Solicitors for the Applicant: | Fernandez and Johnstone |
| Counsel for the Respondent: | Mr Horan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Court orders that:
The application is dismissed
The applicant pay the respondent's costs pursuant to the Federal Magistrates Court Rules 2001 Part 21 Rule 21.10.
It is certified that pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 808 of 2002
| VBAL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This matter proceeded before me on 29 January 2003. On that day the Court ordered that each of the applicant and respondent have leave to file any further written submissions on which they sought to rely as a consequence of the anticipated High Court decision in S157 v Commonwealth of Australia (2003) HCA 2. Further submissions were filed by the respondent pursuant to that order (on 25 February 2003).
The applicant filed his application on the twenty-first day of February 2002. That application was accompanied by a statement of claim. The application was made pursuant to s.39B of the Judiciary Act 1903 (Cth). The applicant named one Kim Boyd (in her capacity as an officer of the Refugee Review Tribunal) as the second named respondent. Weinberg J ordered on 25 March 2002 that the applicant file and serve an amended application for an order of review by
24 April 2002:
a)removing the Refugee Review Tribunal as a party to the proceedings; and
b)with proper particulars of the grounds relied upon.
Other procedural orders were made on that date and the applicant filed an amended application on the fourth day of June 2002. The Refugee Review Tribunal was removed as a party to the proceedings. No additional particulars were provided. The matter was transferred to this Court on the ninth day of August 2002. Contentions of fact and law were filed by the applicant and by the respondent in addition to the respondent's further submissions. A Court book was filed by the respondent.
The applicant is a married man who was born on the fourth day of August 1960 in Sri Lanka. He remains a citizen of Sri Lanka and is of Singhalese ethnicity. His religion is Roman Catholic. He married in Colombo on 22 January 1987 and his wife and two daughters currently continue their residence in Sri Lanka. He arrived in Australia on the ninth day of March 1998 as the holder of a class UC sub-class 456 business (short stay) visa, valid for three months from the date of arrival.
On the seventh day of April 1998 the applicant lodged an application for a protection visa under the Migration Act 1958 (hereinafter referred to as "the Act"). He claimed to fear persecution for reasons of his race, his imputed political opinion and his membership of a particular social group. On the nineteenth day of May 1998 a delegate of the respondent refused to grant a protection visa to the applicant.
On 15 June 1998 the Refugee Review Tribunal received the applicant's application to review the decision of the delegate.
On 29 March 2000 the applicant attended a Tribunal hearing in order to give oral evidence. He was assisted by an interpreter and was accompanied by his registered migration agent at the hearing. On
14 April 2000 the Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa. The applicant applied for an order of review of that decision and on the eighteenth day of July 2000, Goldberg J of the Federal Court of Australia in Melbourne ordered by consent that the matter be remitted to the Refugee Review Tribunal differently constituted for determination in accordance with law.
On 14 November 2000 the Tribunal differently constituted again heard the application for review of decision to refuse a protection visa. On 25 January 2002 the Tribunal handed down its decision dated
27 December 2001 affirming the decision of the delegate not to grant a protection visa. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugee's Convention as amended by the Refugee's Protocol.
The Tribunal hearing
The applicant gave oral evidence to the Tribunal on 14 November 2000. The Department’s file was also before the Tribunal as were letters from friends of the applicant.
The Tribunal accepted that from February 1995 until about March 1998 the applicant owned a transport business concerned with imports and exports from the Colombo Port.
The Tribunal accepted that the applicant provided information about illegal LTTE activities at the Colombo Port to the Sri Lankan authorities. The Tribunal accepted that the applicant provided a transport container to a Tamil driver whom he suspected was an LTTE operative on or about 10 October 1997; that he reported that transaction and his suspicions to the Chief Security Officer at Colombo Port on 11 October 1997; and that the Sri Lankan Police subsequently arrested the Tamil driver at some time before 15 October 1997 (CB 174).
However the Tribunal found it difficult to believe the applicant's claim that he had been targeted by the LTTE for providing information about the Tamil driver. The applicant alleged that officers in the Sri Lankan authorities were bribed to divulge his identity as an informant to "ethnic terrorist groups" and that as a consequence he received death threats. The applicant claimed that he had learned that the Liberation Tigers of Tamil Eelam (LTTE) had "somehow" discovered that he had reported on the Tamil driver to the Colombo Port security officers and that because of threats made against him he went into hiding in Kandy. He claimed that senior members of the police force were unable to provide protection for him because of the war with the LTTE. Subsequently the applicant alleged a Tamil truck driver threatened one of the applicant's security officers and then deliberately smashed into one of the applicant's lorries. The police to whom the incident was reported would not take action without dealing with the owner of the damaged lorry. The applicant was not prepared to come out of hiding and therefore there was no police action taken in relation to this incident. The applicant alleged that terrorists were threatening and searching for him and that as a consequence he was forced to leave his home.
The applicant said that his wife had lived in Kandy since March 1998 because she was afraid that the LTTE or its supporters would kill her if she lived in Colombo. He was asked to confirm that his wife lived safely in Kandy given that no harm had come to her during the two and a half years that she had lived there. He responded that she had only been safe because she did not leave her home. Friends took her food and otherwise helped her.
The applicant was asked whether there had been any other incident that he had reported to the authorities save the Tamil driver's request to transport a container. He responded that there was not.
The Tribunal found it incongruous that the Sri Lankan police did not seek to interview the applicant as part of its investigations before arresting the Tamil driver – given that he had provided a transport container to the driver and had directly witnessed suspicious activity at Colombo Port shortly beforehand. The Tribunal found the applicant's evidence at the hearing to be vague and unconvincing in relation to:
(a)government or security officers having assisted the Tamil driver and having informed on him to the LTTE;
(b)one of his trucks being deliberately damaged; and
(c)his claim that the police were colluding with the LTTE to force him out of hiding.
The Tribunal found it improbable that:
(i)the LTTE identified the applicant as an informant in respect of the arrest of the Tamil driver in October 1997; and
(ii)that the LTTE or its supporters threatened him or that he went into hiding as he claimed.
The Tribunal found that even if the applicant had been identified as an informant in relation to the arrest of an LTTE supporter and consequently threatened by the LTTE, he was not at risk of being persecuted by the LTTE or its supporters for a Convention reason. Rather, any harm faced would be in retaliation for the applicant having acted as an informant and for the reason of "teaching a lesson" to other potential informers. Neither the applicant's Singhalese ethnicity nor any perception that he was politically opposed to the LTTE constituted essential or significant reasons individually or cumulatively, for any threats from the LTTE or its supporters (CB 175 to 176).
The Tribunal did not accept that the LTTE perceived the applicant as a political opponent given that he was not an agent or employee of any Sri Lankan authority, nor a member of any political organisation opposed to the LTTE. (CB 176). The Tribunal found the essential and significant motivation of the LTTE in threatening the applicant was retaliation or revenge against him for providing information to the Sri Lankan authorities about its illegal activity at Colombo Port.
The Tribunal considered whether the applicant was a member of a particular social group namely "informants against the LTTE". The Tribunal found no material before it to justify a finding that Sri Lankan society or some clearly identifiable section of it has perceived "informants against the LTTE" as a distinct social unit. The Tribunal therefore found the “informants against the LTTE” to not constitute a particular social group in Sri Lankan society (CB 176-177).
Consideration
The grounds of complaint raised by the applicant are in substance that firstly the Tribunal failed to comply with the requirements of procedural fairness in that it did not notify the applicant that it was considering rejecting his claim on the ground that the threats he had received were motivated simply by revenge or retaliation for providing information to the Sri Lankan authorities about illegal activities rather than because of any imputed political opinion, ethnicity or membership of a particular group of informants, of the applicant; and secondly the Tribunal erred in law in its finding that “informants against the LTTE” did not constitute a particular social group in Sri Lankan society.
The areas identified must be such as to attract relief under s.39B of the Judiciary Act 1903.
On 4 February 2003 the High Court gave judgment in S157/2002 v Commonwealth of Australia (2003) HCA 2. The High Court determined that the privative clause provision in s.474(1) of the Act, properly construed, is a valid enactment. It found the proper construction of the Act, including s.474 imposed an obligation on providing a fair hearing as a limitation upon the decision-making authority; see per Gleeson CJ (at 37-38), Gaudron, McHugh, Gummow, Kirby and Hayne (at 83) and per Callinan J (at 160). The question whether procedural fairness must still be accorded by the Tribunal so that it acts within its jurisdiction, in the light of the Migration Legislation Amendment (Procedural Fairness) Act 2002 is yet to be determined. The decision in S157/2002 related to the Act as it stood prior to that amendment.
The applicant in these proceedings concedes that were I to determine that the Tribunal's decision is a privative clause decision for the purposes of s.474(1) of the Act and as described in S157 v Commonwealth of Australia then the applicant could not succeed. The applicant conceded that the decision did relate to the subject matter of the Act; was reasonably capable of reference to the power; was a bona fide attempt by the decision-maker to exercise the power which the Act reposed in such decision-maker; and did not breach any inviolable limitation which as a matter of construction and notwithstanding s.474 must be observed for the effective exercise of the power.
The decision in S157/2002 requires this Court to determine whether the applicant was accorded procedural fairness. In addition the Court determined that s.474 does not protect decisions involving jurisdictional error.
An administrative tribunal exceeds its power and thus commits a jurisdictional error if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or in some circumstances, makes an erroneous finding or reaches a mistaken conclusion in a way that affects the exercise or purported exercise of the Tribunal's power (Craig v South Australia (1995) 184 CLR 163, per McHugh, Gummow and Hayne JJ at 179). This list is not exhaustive and these different kinds of errors may well overlap (see Minister for Immigration & Multicultural & Indigenous Affairs v Yusef (2001) 180 ALR 1 at 21).
The applicant relied on grounds alleging a denial of procedural fairness which if found would lead to jurisdictional error not protected by s.474 of the Act.
Specifically, the applicant argued as stated earlier in these reasons, that the Tribunal denied the applicant procedural fairness in that it did not notify the applicant that it was considering rejecting his claim on the grounds that the threats he had received were motivated simply by revenge or retaliation for providing information to the Sri Lankan authorities about illegal activities rather than because of any imputed political opinion, ethnicity or membership of a particular group of informants of the applicant. The applicant submitted that he had thereby been deprived of the opportunity to amplify his evidence and identify more precisely the threats that had been made against him.
The requirements of natural justice do not require the Tribunal to inform the applicant of its mental process or preliminary findings let alone to invite the applicant to comment on such matters before making its decision (see Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591/2). It is a matter for the Tribunal as to the probity it accords the various aspects of the evidence put before it (see Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 611). The Tribunal is not required to adopt an uncritical acceptance of all and any allegations put before it by the applicant. All information before the Tribunal and on which it acted was put to the applicant.
The Tribunal found it improbable that the alleged threats had ever been made to the applicant. The Tribunal however also proceeded to consider the matter on the basis that its earlier findings rejecting the applicant's claims might have been incorrect. The Tribunal then considered the possibility that the threats had been made as claimed and still concluded that the applicant did not have a well founded fear of persecution for Convention reasons. It is not for this Court to review the merits of the Tribunal's decision nor to substitute for the Tribunal's views of the evidence before it, this Court's views. There is no arguable jurisdictional error in the Tribunal's decision on the basis that the applicant was not afforded procedural fairness.
The applicant submitted that the Tribunal adopted an incorrect interpretation of "particular social group" for the purposes of the Convention. The Tribunal found at page 11 of its reasons that "informants against the LTTE" do not constitute a particular social group in Sri Lankan society. The applicant argued that members of that group including himself shared the common characteristics, interests and goals in eliminating the illegal activities of the LTTE and their supporters and actually acted upon those beliefs by informing on those activities to the authorities. This characteristic, especially the actual informing to the authorities, was not a characteristic shared by the society as a whole.
I accept the respondent's submissions that the relevant question which was addressed by the Tribunal, was not simply whether informants against the LTTE shared common characteristics or attributes, but whether they were perceived by society in Sri Lanka to be a distinct and identifiable social unit on the basis of such common characteristics or attributes (see respondents contentions number 42 and further Applicant A v The Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 264, McHugh J.)
The Tribunal found having considered the arguments put by the applicant and also country information in its possession, that informants against the LTTE do not constitute a particular social group within Sri Lankan society. Furthermore, that there was no community perception of informants against the LTTE as a distinct or identifiable social unit. These are factual findings of the Tribunal and it is not for this Court to review the merits of the Tribunal's decision. These were questions of fact for the Tribunal to determine.
It follows that I have concluded that no jurisdictional error as alleged has been committed by the Tribunal.
The Tribunal's decision is a privative clause decision for the purposes of s.474 of the Act.
The decision related to the subject matter of the Act and was reasonably capable of reference to the power. It was a bona fide attempt by the decision-maker to exercise the power which the Act reposed in such decision-maker (see R v Hickman; ex parte Fox and Clinton (1945) 70 CLR at 598). There is no breach of an inviolable limitation.
I dismiss the application and order that the applicant pay the respondent's costs pursuant to Part 21 Rule 21.10 of the Federal Magistrates Court Rules.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate:
Date:
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