VBC v Minister for Immigration and Multicultural Affairs

[2002] FCA 533

FEDERAL COURT OF AUSTRALIA

VBC v Minister for Immigration & Multicultural Affairs [2002] FCA 533

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 475A

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 followed

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 referred to

VBC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 1202 OF 2001

MARSHALL J
MELBOURNE
29 APRIL 2002

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1201 OF 2001

BETWEEN:	VBC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	29 APRIL 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 1201 OF 2001

BETWEEN:	VBC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	29 APRIL 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth), in which s 475A of the Migration Act 1958 (Cth) (“the Act”) is also called in aid by the applicant. By his application, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the RRT”). The RRT has affirmed a decision of a delegate of the respondent to refuse to grant a protection visa to the applicant.

   Background

2. The applicant is a citizen of Sri Lanka who is of Sinhalese ethnicity. He entered Australia on 25 September 1999 with his wife and two children. On 5 October 1999, the applicant and his family applied for protection visas, claiming that the applicant had a well founded fear of persecution if returned to Sri Lanka. His “well founded fear” was based upon political opinion of two sorts which would be imputed to him. The first was as a supposed supporter of the Liberation Tigers of Tamil Eelam (“the LTTE”). The second was as an actual supporter of the United National Party (“the UNP”).

   The applicant’s claims before the RRT

3. The applicant claimed that he was a long-standing strong supporter of the UNP and had close ties with a previous UNP government. He further claimed that he and his family were threatened and harassed by supporters of the other main party (“the PA”). He said that his house would be stoned at night and that his problems increased after the 1994 elections. He also said that numerous complaints to the police went unheeded. He claimed that he feared persecution from PA supporters and from criminal elements associated with the PA on account of his support for the UNP and on account of difficulties he said he experienced with the LTTE.

4. The applicant claimed that he also feared persecution from LTTE terrorists and the Sri Lankan security forces on account of his alleged ordeal arising out of his building of a house.

5. The applicant was a draughtsman in Sri Lanka. He arranged for a house to be built with the use of Tamil labourers. The house was then sold at auction to an agent but the purchasers were members of the LTTE. The RRT described the applicant’s account of what followed by saying:

   “The house was raided by the Sri Lankan security forces and the occupants were arrested. The applicant was taken into custody and interrogated as to why he had sold the house to members of the LTTE and why he used Tamil labourers to work on the house. The applicant protested his innocence and was only released due to the payment of a bribe. Afterwards the security forces often came to his home on the pretext of searching for members of the LTTE. They once damaged property and assaulted the applicant when he complained. Then the applicant started receiving threats from people identifying themselves with the LTTE. They accused him of providing information to the security forces. He also received abusive and threatening telephone calls from PA supporters, who were aware of his predicament and who, the applicant thought, were feeding false information to the authorities. Such was his family’s fear, that the children did not attend school for two months before coming to Australia.”

   The RRT’s findings

6. The RRT accepted that the applicant “had business connections with the former (UNP) government” but did not accept that the applicant had been “harassed or detained or threatened for his political or imputed political opinion …”. It did not find the applicant to be a credible witness.

7. The RRT accepted that some of the applicant’s neighbours may have verbally abused the applicant for employing Tamil labourers, but did not accept that such abuse amounted to persecution. The RRT did not accept that the police interrogated the applicant as a LTTE sympathiser. It further did not accept that the applicant had “continuing attention from the police”.

   The privative clause

8. Counsel for the respondent in written contentions submitted that the decision of the RRT was immune from judicial review having regard to the provisions of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). I need not consider this aspect of the respondent’s submission because of my view that the decision of the RRT is not otherwise open to legal challenge.

   The merits

9. Although the applicant represented himself at the trial and was unable to give any assistance to the Court in the resolution of the legal issue before it, he did have the benefit of having his application drawn and amended by his former solicitors, Wimal and Co. However, each of the grounds raised in the amended application essentially do no more than cavil with findings of fact made by the RRT which were open to it to make.

10. The only particulars of the alleged legal error made by the RRT as set out in the amended application read as follows:

    “The Tribunal erred in law in failing to properly apply the real chance test as laid down in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 in the manner it approached its considerations of the Applicant’s case. The Tribunal did not undertake the required speculation on the chance of persecution emerging from a consideration of the whole of the material before the Tribunal.”

11. There is no doubt that the RRT did ask itself whether the applicant in particular could be imputed with an opinion in favour of the LTTE and whether the applicant would be subject to persecution because of his support for the UNP.

12. The question of the applicant’s credibility was a matter for the RRT; see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423, per McHugh J.

13. There is no substance to the contention that the RRT misapplied the “real chance test” referred to in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. Having carefully considered the decision of the RRT, I am of the view that its decision is free from legal error. The RRT essentially rejected the major tenets of the applicant’s claims as it was entitled to do on the material before it.

    Disposition

14. The application will be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             1 May 2002

The applicant appeared in person.
Counsel for the Respondent:	Ms H Riley
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	29 April 2002
Date of Judgment:	29 April 2002