VBAO v Minister for Immigration
[2004] FMCA 268
•14 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VBAO v MINISTER FOR IMMIGRATION | [2004] FMCA 268 |
| MIGRATION – Review of decision of Refugee Review Tribunal – applicant alleges threats made to his life – meaning of “threat” in s.91R(2) of the Migration Act1958 (Cth) – whether oral or written threat to person’s life or liberty sufficient to constitute “serious harm”. |
Migration Act 1958
Federal Magistrates Court Rules 2001
NAAV v MIMIA [2002] FCAFC 228
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1
Prahastono vMinister for Immigration and Multicultural Affairs (1997) 77 FCR 260
Mandavi vMinister for Immigration and Multicultural Affairs [2002] FCA 70
Ahwazi vMinister for Immigration and Multicultural Affairs [2001] FCA 1818
Chan vMinister for Immigration and Ethnic Affairs (1989) 169 CLR 379
| Applicant: | VBAO of 2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 438 of 2002 |
| Delivered on: | 14 May 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 21 August 2002 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Niall |
| Solicitors for the Applicant: | Pro-bono representation |
| Counsel for the Respondent: | Mr Horan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Court declares that the decision of the Refugee Review Tribunal made on 29 January 2002 is invalid and of no effect.
A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the matter according to law.
The respondent do pay the applicant’s costs fixed in the sum of $4,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 438 of 2002
| VBAO of 2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a national of Sri Lanka, who arrived in Australia in November 2001. He arrived as the holder of an entertainment visa (which was due to expire on 30 November 2001).
Soon after his arrival in Australia, a Departmental officer cancelled his entertainment visa on the basis that he was not a genuine entertainer.
A few days later, the applicant lodged an application for a protection visa. He claimed to have feared persecution on the basis of his political opinions.
On 6 December 2001, the Department wrote to the applicant advising him that he had been refused a protection visa. The letter recorded that the applicant did not meet one of the criteria for a protection visa, namely that he be "…a non-citizen in Australia to whom Australia has protection obligations under the United Nations Refugee Convention as amended by the Refugee's Protocol".
The applicant then applied to the Refugee Review Tribunal ("the RRT"). The application was received on 13 December 2001.
In its decision dated 29 January 2002, the RRT affirmed the delegate’s decision not to grant the applicant a protection visa.
On 22 February 2002, the applicant applied to the Federal Court for — in essence — a review of the RRT's decision. Those proceedings were transferred to this Court by order dated 3 May 2002.
An amended application was filed in court on 21 August 2002.
Grounds for Review
The only ground appearing in the amended application for review is as follows:
In determining that the applicant is not entitled to the grant of a protection visa (class XA), the RRT exceeded its jurisdiction, or committed a jurisdictional error.
Particulars
The RRT erred in the construction and application of s. 91R of the Migration Act in failing to hold that the threats made to the applicant's life constituted persecution in s.91R(2)(a).
Background
The applicant was born in 1977. He is a citizen of Sri Lanka of Sinhalese ethnicity.
Prior to travelling to Australia, the applicant worked in financial management positions. He left his last job early in 2001. He was also paid for work as a musician.
The applicant came to Australia with an entertainment visa. It had been issued on the basis that he was associated with a dance group sponsored to visit Australia by the Sinhala Cultural and Community Services Foundation. The RRT found that sponsorship was withdrawn by the foundation when they realised that "the arrivals were not genuine dancers".
Written submissions were prepared on behalf of the respondent. They were provided to the Court on 30 July 2002. The key findings of the RRT (incorporating various background facts, evidence and claims made before the RRT) are set out in paragraph 6 of those submissions. I adopt the relevant paragraphs and incorporate them into this judgment as follows:
(a)The RRT accepted that the applicant was a supporter or a member of the PA. However, it found that he did not have any active involvement in politics outside election campaigns, nor did he have any practical involvement with organisational aspects of the PA or its component parties. The applicant's involvement with the PA was limited to voting for it, assisting with practical support tasks during election campaigns and attending rallies and providing musical entertainment on some of these occasions.
(b)The RRT was prepared to accept that the applicant might have received intimidating and threatening telephone calls and letters, and might have been assaulted by United National Party (“UNP”) thugs in December 2000 or January 2001. However, it was not satisfied that such incidents amounted to persecution within the meaning of the Convention. The phone calls and letters did not involve serious harm, and the assault was an isolated incident.
(c)A further claim relating to a van driving by and hitting him with its mirror was unconvincing, but even if it did take place it did not constitute persecution.
(d)The RRT was not satisfied that the applicant had gone into hiding for several months before leaving Sri Lanka in order to avoid serious harm.
(e)The applicant's loss of his (casual) job as a musician was not due to his political involvement.
(f)The RRT was unconvinced by the applicant's evidence as to why he did not report the above incidents to the police, describing such evidence as confused and rehearsed. Given such a failure to report the incidents to the police, any perceived failure of police protection was no more than speculation.
(g)The chance of the applicant coming to serious harm due to his past political involvement was remote. Such involvement was not such as to lead to sustained adverse interest of political opponents.
(h)Nor was there more than a remote chance of the applicant facing serious harm if he were to resume his political activities on his return to Sri Lanka, despite the recent change in government. Because there is a measure of police action in relation to politically motivated violence, this further limits the chance of serious harm as a result of political activities.
Relevant information regarding Sri Lanka and its political climate is contained within the RRT's Reasons.[1] This information was not in dispute before me.
[1] At Court Book pp 104-6
The Law
Pursuant to s.483A of the Migration Act, this Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Act. Under s.475A, it has jurisdiction in relation to a ‘privative clause decision’ that is a decision made on a review by the RRT. ‘Privative clause decision’ is defined in s.474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows:
A privative clause decision:
a)is final and conclusive;
b)must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and
c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.
In NAAV v MIMIA [2002] FCAFC 228, the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in the decision R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words, there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are:
(a)the decision is a bona fide attempt by the decision-maker to exercise its power;
(b)the decision relates to the subject matter of the legislation; and
(c)the decision is reasonably capable of reference to the power conferred on the decision-maker.
There was also broad agreement in NAAV that the purported exercise of power must not be one that contravenes an inviolable limitation on the operation of the Act.
In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the High Court held that as a matter of construction the expression ‘decision[s]… made under this Act’ in s.474(2) “must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act.”[2] If there has been a jurisdictional error, then the decision cannot properly be described as a decision made under this Act — and is thus not a privative clause decision as defined in s.474(2) and (3). Further, a decision flawed due to failure to comply with the principles of procedural fairness was also said not to be a privative clause decision within s.474(2).
[2] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, and also see [19] per Gleeson CJ and [163] per Callinan J
If there is no jurisdictional error affecting the RRT’s decision, then the decision would be a privative clause decision and protected by s.474(1) — unless it could be shown that one of the Hickman provisos had not been met.
In Plaintiff S157/2002, the High Court confined itself to a general statement of principle in relation to jurisdictional error, and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the applicant in that case. The precise scope of the notion of jurisdictional error in this context, and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints, may raise some complex issues[3] ¾ but there is no need to consider such issues in the proceedings before the Court.
[3] see, for example, Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 — in relation to s.65 of the Migration Act
Submissions
The applicant claimed that he has been the victim of persecution in the past. That persecution took the form of detention and mistreatment at the hands of what were described by the RRT as "UNP thugs".
Mr Niall (for the applicant) submitted that, even if it is accepted as a fact that the applicant has exaggerated his involvement with the PA in Sri Lanka, the RRT nevertheless accepted that the applicant had received intimidating and threatening telephone calls and letters, and that he was assaulted in December 2000/January 2001. The assault involved him being dragged into a van and beaten and having his hair cut short. During the assault he was told not to engage in political activity or perform at rallies.
The applicant later received letters exhorting him not to take part in political activities, which exhortation was coupled with a threat to his life. The applicant was told that if he reported the incidents to the police, then his father would be killed.
Mr Niall continued (in his written submissions) as follows:
7.The RRT concluded:
“…that the chance of the applicant coming to serious harm upon return to Sri Lanka because of his past involvement which I have found was limited to voting for the PA, attending rallies during election campaigns providing musical entertainment at some gatherings and undertaking practical support tasks during election campaigns is remote. I do not accept that the nature and extent of his involvement was of a kind which led to the sustained adverse interest of political opponents to an extent where he was subjected to serious harm of a kind, which can, even if seen altogether, reasonably be regarded as persecutory or that his past involvement would lead to such treatment if he were to return.”
8.Significantly, the RRT did not rule out the chance that the applicant would face similar treatment to which he had been subjected before his departure. That is not surprising given the extended period over which he was subject to threatening and intimidating phone calls.
9.In short, the analysis adopted by the RRT was that because the applicant had not suffered persecution in the past the chance that he would in the future be persecuted was remote. In that context the question of whether the RRT properly construed and applied the concept of persecution under the Migration Act was crucial.
10.In determining whether the applicant met the definition of Refugee in the Convention, the RRT was required to apply s.91R of the Act. Although the RRT made reference to s.91R in p3 of its reasons, it did not return to that provision when it applied the Act to the facts that it had found. This is a telling omission.
11.Section 91(1)(b) provides that persecution must involve serious harm to the person. Subsection 91R(2) elucidates, in a non exhaustive way, what is meant by serious harm. That subsection provides:
“(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the persons’ capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.”
12.The definition of "serious harm" in s.91R of the Act is referable, relevantly, to a threat to a person's life or liberty. Presumably because of the agitation such a threat can engender in the mind of the recipient. If the persecution involves such a threat, then the RRT must consider whether the persecution involves 'systematic and discriminatory conduct": s.91R(1)(c).
13.There is no requirement in s.91R, or in the Convention, that such a threat will never constitute persecution unless it is carried out, or unless it is occurs more than once.
14.Here, the threat as accepted included threats to the life of the applicant and his father. That conduct fell within s.91R(2)(a) and the RRT erred in law in failing to so hold. The RRT reached its conclusion on the basis of an erroneous construction and application of s.91R.
15.In this respect, the RRT has asked itself the wrong question, mandated by s.91R and the Convention, and in so doing has failed to exercise, or exceeded, its jurisdiction. It is further contended that the application of the definition of persecution is an essential precondition or inviolable requirement to the exercise of the power of the RRT.
16.Further, the RRT's acceptance of the applicant's claims in this respect was sufficient to constitute “a threat to the [applicant's] life or liberty”.
17.In any event, the RRT then found that the calls and threats did not constitute persecution. This is also an error of law in the application of the Convention definition of "persecution”. The applicant described death threats he received both in person and by telephone over a period of approximately five years. Again, the issue is not whether such threats were carried out but whether the threats and the resultant fear they created in the mind of the applicant were sufficient to constitute persecution.
18.The RRT has therefore failed to address the claims made by the applicant and has failed to apply s.91R…
At the hearing, Mr Niall argued that if the words spoken (or written), or the actions taken, engender in the mind of a reasonable person a reasonable apprehension that his or her life or liberty is at risk, then section 91R(2)(a) is satisfied — and once is enough. Mr Niall conceded that there was no authority for that proposition.
Mr Horan (for the respondent) presented the following written submissions in response to Mr Niall’s argument:
12.Whether particular circumstances amount to persecution within the meaning of the Convention, and/or 'serious harm' within the meaning of s.91R of the Migration Act, is a question of fact and degree for the RRT, involving a qualitative assessment of the relevant circumstances.[4]
13.The RRT found that the chance of the applicant facing serious harm upon his return to Sri Lanka was remote. Such a finding was open to the RRT. There is no indication in the RRT's reasons that it considered that a threat can never constitute 'serious harm ' unless it is carried out or unless it occurs more than once, or that it ignored the example set out in s.91R(2)(a).
14.In any event, the example of 'serious harm' set out in s.91R(2)(a) - 'a threat to the person's life or liberty 'does not mean that any death threat or threat of imprisonment made against an applicant will fall within that paragraph and hence necessarily constitute 'serious harm'. Paragraph 91R(2)(a) uses the term 'threat' in the sense of a risk, danger, hazard or peril;[5] it is not intended to refer to the making of oral or written threats against an applicant per se. Of course, the making of such threats may provide evidence of 'a threat [i.e. risk] to the person's life or liberty'. However, in circumstances where (for example) threats received by an applicant are patently hollow and/or unlikely to be carried out, the making of such threats would not of itself fall within s.91R(2)(a), because they would not give rise to a risk or danger to the applicant's life or liberty.
15.The question is not simply whether an oral or written threat produces a subjective fear in the mind of a particular applicant. In particular circumstances, it might be possible for a specific threat or threats made against an applicant to constitute persecution or serious harm, having regard to the nature, source or frequency of the threats. Whether or not this is the case is a question of fact for the RRT. In the present case, the RRT found that the relevant threats, 'while no doubt troubling, [did] not involve serious harm'.
16.Having found that the threats did not themselves constitute serious harm, the question for the RRT was whether the threats gave rise to a real chance that the applicant would face serious harm (e.g. whether his life or liberty would be endangered) if he were to return to Sri Lanka. The RRT addressed that question, and answered it adversely to the applicant.
17.For the reasons set out above, it cannot be said that the RRT misconstrued or failed apply s.91R …,or that it failed to address the applicant's claims.
18.In any event, the definition of 'persecution' under the Convention and pursuant to s.91R …does not constitute an essential precondition or 'inviolable limitation' on the RRT's jurisdiction. The power to grant a protection visa is conditioned on the satisfaction of the Minister or the RRT that the prescribed criteria have been satisfied. Section 474…vests in the Minister or the RRT authority to determine the factual and legal elements involved in the interpretation of those criteria and their application to the facts of any particular case.
[4] See Prahastono vMinister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 268, 271 per Hill J, which was referred to by Conti J in the context of s.91R of the Act in NACV vMinister for Immigration and Multicultural Affairs [2002] FCA 411 at [3]; see also Mandavi vMinister for Immigration and Multicultural Affairs [2002] FCA 70 at [25] (Carr J); Ahwazi vMinister for Immigration and Multicultural Affairs [2001] FCA 1818 at [45] (Carr J).
[5] Such a construction of the term 'threat' is consistent with the language employed in articles 31 and 33 of the Refugees Convention, which respectively refer to refugees coming from a territory in which their life or freedom was 'threatened' or being returned to a territory in which their life of freedom would be 'threatened' .See also Chan vMinister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388,399- 400,429-431, where the judgments refer to 'harm or the threat of harm', 'a threat to life or freedom', or a 'threat of harm' in a context where the term 'threat' is clearly used in the more general sense of risk or danger .
In his oral submissions, Mr Horan conceded that a threat (being an oral or written threat) to a person’s life or liberty is obviously relevant to the question of whether the alleged persecution involves serious harm to the person. He argued, however, that the existence of such a threat does not of itself establish the existence of serious harm. He argued, as well, that once one departs from the proposition that a “bare” threat to a person’s life or liberty is enough to comprise “serious harm”, then an analysis of the actual risk posed by the threat must be undertaken by the RRT. Such an analysis necessarily involves issues of fact, and questions of the weight to be attached to the various facts as eventually found by the RRT.
Mr Horan argued that the question that the RRT must determine when considering this matter is whether there is a real chance of the threat to the person’s life or liberty being carried out.
Discussion
The actual finding made by the RRT as it relates to this issue appears on page 107 of the Court Book and is as follows:
I have reached the following conclusions about the mistreatment (the applicant) claimed to have experienced. I am prepared to accept that the applicant might have received intimidating and threatening telephone calls and letters. He stated that he received about three prior to December 2000/January 2001 and then about ten altogether in the eleven months which followed before he left the country for Australia. I am also prepared to accept that he was assaulted in December 2000/January 2001 and that this may have been done to him by UNP thugs. I am, however, not satisfied that the character of what he has described exhibits the characteristics necessary for it to constitute persecution within the meaning of the Refugees Convention. I consider that the telephone calls and letters, while no doubt troubling, does (sic) not involve serious harm.
The nature of the “intimidating and threatening telephone calls and letters” referred to in the above passage is clarified on page 107 of the Court Book — a few sentences before the passage that I have quoted appears. The RRT said:
The applicant’s evidence about the adverse consequences of his involvement was that he received about three threatening calls before December 2000, that in December 2000 or January 2001 he was assaulted and his hair cut and that this was followed by about ten threats to his life, by telephone and letter. He was told by those who assaulted and threatened him to stop his involvement in political activity. [emphasis added]
In my opinion, it is clear that the RRT accepted that the applicant had received threats to his life. Prima facie, such threats must comprise instances of serious harm within the meaning and contemplation of section 91R of the Migration Act1958.
I accept Mr Horan’s submission to the effect that not all death threats or threats of imprisonment made against a person will necessarily constitute “serious harm”. Such threats may (for example) be patently hollow, or they may even have been made in jest. The fact of the matter is, however, that section 91R(2)(a) clearly states that “a threat to (a) person’s life or liberty” is an instance of serious harm for the purposes of section 91R(1)(b). The other sub-paragraphs of section 91R(2) use adjectives or descriptive phrases to qualify or elucidate the scope of the relevant behaviour described within them. For example, sections 91R(2)(b) and (c) refer to significant physical harassment or ill treatment of a person, and section 91R(2)(d) refers to significant economic hardship that threatens the persons capacity to subsist. But no such descriptive or qualifying words or phrases adhere to section 91R(2)(a). In my view, the absence of such qualifying or descriptive words or phrases is of importance. I can see no reason why the plain meaning of the relevant words should be read down in the manner urged by Mr Horan. Whilst the term “threat” may cover any actual (objective) risk, danger, hazard or peril to a person’s life or liberty, it clearly cannot exclude the making of oral or written threats against the person.
I do not accept that the making of oral or written threats provides no more than evidence of a “threat” within the meaning and contemplation of section 91R(2)(a). After all, the provision does not include a requirement that the threat be “significant” (as opposed to sub-paragraphs (b), (c) and (d) of section 91R(2)), and it does not speak of (for example) words or actions which “threaten the person’s life or liberty” (as opposed to the terminology employed in sub-paragraphs (e) and (f) of section 91R(2)).
Nevertheless, and as conceded by Mr Niall, the threat constituted by words or actions must be a real threat to the person’s life or liberty. In other words, the threat must not (for example) be an idle one, or one that is made in jest. In my opinion, a threat falls within the meaning and contemplation of section 91R(2)(a) if the words spoken or written, or the actions taken, could fairly engender in the mind of a reasonable person a reasonable apprehension that his or her life or liberty is genuinely at risk. Such an event need only occur on one occasion for it to constitute a threat to a person's life or liberty within the meaning and contemplation of section 91R(2)(a). Clearly, the making of such threats on more than one occasion may be relevant for a number of reasons. For example, it may indicate that the degree of actual risk faced by the person is progressively increasing. Conversely, it may indicate that the actual risk faced by the person is diminishing (in that it may be fair to conclude that the maker or makers of the threats cannot be counted upon to match their actions to their words).
The form of the threat and the capacity of the person or persons making the threat to actually carry it out are clearly relevant factors when considering whether or not the specific threat falls within the meaning and contemplation of s.91R(2)(a).
It follows from the above that, in my opinion, the RRT failed to properly or fairly address the claims made by the applicant, and failed to properly apply section 91R of the Migration Act. It failed to apply itself to the question which the section prescribes, or misunderstood the nature of the opinion that it was to form. As such a jurisdictional error has occurred.
I propose to grant relief in the form of a declaration and orders in the nature of certiorari and mandamus.
There will also be an order that the respondent pay the applicant’s costs, which I assess in the sum of $4,250.00 pursuant to Rule 21.05(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate:
Date:
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