VCAN v Minister for Immigration
[2004] FMCA 220
•15 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VCAN v MINISTER FOR IMMIGRATION | [2004] FMCA 220 |
| MIGRATION – Appeal from the Refugee Review Tribunal – refusal of a protection visa – whether Tribunal erred in law – jurisdictional error – failure to address correct question – meaning of “persecution” – failure to take into account relevant considerations – taking into account irrelevant considerations – legitimate expectation. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 91R, 474, Part 8
Federal Court of Australia Act 1976 (Cth), s.32AB(1)
Arumugam v Minister for Immigration and Multicultural Affairs (1999) FCA 251
Buksh v Minister for Immigration and Multicultural Affairs (2001) FCA 1504
Craig v South Australia (1995) 184 CLR 163
Chan Yee Kin v Minister for Immigration and Multicultural Affairs (1989-1990) 169 CLR 379
Minister for Immigration and Multicultural Affairs, Re Ex parte Lam (2003) HCA 6
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323
NAPL v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1263
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Wang and Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548
Weldt v Minister for Immigration and Multicultural Affairs (2001) FCA 835
| Applicant: | VCAN OF 2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 986 of 2002 |
| Delivered on: | 15 April 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 8 April 2003 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Krohn |
| Solicitors for the Applicant: | K. P. Aravindan |
| Counsel for the Respondent: | Mr C. Fairfield |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
THAT the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 986 of 2002
| VCAN of 2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
12 April 2002 seeking judicial review of the decision of the Refugee Review Tribunal on 15 March 2002 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection (class AZ) visa.
Background and summary of proceedings
The applicant is a citizen of Sri Lanka. He came to Australia on
22 July 1998 and lodged an application for a protection (class AZ) visa (sub-class 866) with the Department of Immigration and Multicultural Affairs in accordance with the Migration Act 1958 (Cth) (“the Migration Act”) on 3 September 1998. The applicant claimed that he feared persecution by the Sri Lankan security forces due to his ethnicity; the applicant is a Tamil from Jaffna. The applicant further claims that he has been imputed with a LTTE (the Liberation Tigers of Tamil Eelam) political profile due to his ethnicity.On 8 February 1999, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection (class AZ) visa; the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision on 1 March 1999. In the decision handed down by the Tribunal on 15 March 2002, the Tribunal affirmed the decision of the delegate not to grant the protection (class AZ) visa. The Tribunal held that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention; the applicant consequently did not satisfy the criterion prescribed in section 36(2) of the Migration Act.
On 12 April 2002, the applicant lodged an application in the Federal Court of Australia, being V213 of 2002, for review of the Tribunal’s decision pursuant to section 39B of the Judiciary Act 1903 (Cth) and Part 8 of the Migration Act. In the applicant’s amended application, filed on 4 July 2002, the applicant claimed that the Tribunal had erred in law by acting without jurisdiction in relation to:
a)the interpretation and application of the term “persecution”;
b)the failure to consider relevant considerations in determining the applicant’s claims of persecution; and
c)taking into account irrelevant considerations in determining the applicant’s claims of persecution.
The applicant’s contentions of fact and law were filed on 8 July 2002; the respondent’s contentions of fact and law were filed on 23 July 2002. On 29 July 2002, the applicant filed submissions on the merit of transferring the matter to the Federal Magistrates Court. On 17 September 2002, by order of North J of the Federal Court of Australia, the matter was transferred to the Federal Magistrates Court pursuant to s.32AB(1) of the Federal Court of Australia Act 1976 (Cth).
The applicant’s claims
The applicant’s claims are accurately and succinctly set out in paragraphs 9 to 11 inclusive of the applicant’s contentions as follows:
The applicant set out his claims in summary form in a statement dated 3 September, 1999, (“Statement”) which was part of his initial applicant to the respondent for a protection visa, and specifically answered questions 36 to 40 of Part C of the Application Form for Protection Visa.
The essential elements of the applicant’s claim for a protection visa were that he feared persecution essentially for a number of reasons. First he had already been arrested or detained and beaten and questioned by the authorities in Sri Lanka in October 1990 (Statement, p. 2.8 – 3.2) and again in April 1998 (Statement, p. 4.8 - 5.1). On both occasions the authorities may have been engaged in routine operations at the point of initial detention, but they alleged that the applicant was a member of the Liberation Tigers of Tamil Eelam (“LTTE”) during his detention, interrogation and beating. The applicant on the basis of these experiences therefore claimed to fear persecution by the Sri Lankan authorities as a suspected supporter of the LTTE:
“I fear that if I have to return to Sri Lanka, I will be arrested by Sri Lankan Security Forces on suspicion of having LTTE connections and will be detained by them for long period of interrogation and will be mistreated by them, as I have an imputed LTTE political opinion, because I am a Tamil who was born and raised in Jaffna. My national identity card, shows my place of birth and residential address as Jaffna. Whenever, the security forces stop me for checking they became suspicious that I could be an LTTE member and detained me for questioning and mistreated me on several times, simply because I was a young Tamil male from Jaffna”. (Statement, p. 5.9 – 6.1)
In addition, the applicant feared persecution for imputed political opinion because two LTTE agents asked him to ask his father, who worked for the Water Supply and Drainage Board, to provide plans of the water treatment works and details of the security arrangements. The agents threatened him that he and his family would be killed if he divulged any information about them. (Statement, p. 3.7). One of the LTTE agents, Arul, was arrested in July 1998. The applicant therefore said:
“I feared that if the security forces come to know about my connections with them [the LTTE], they will also arrest us [the applicant and his father] and detain us alleging LTTE connections and will mistreat us, even could kill us.” (Statement, p. 5.7)
He also said:
“I hear that one of these boys has now been arrested by the security forces. I fear that the security forces would have now come to know about my associations with them and would arrest me and detain me in prison for a long time without any trial or inquiry and torture me during interrogation could even kill me, if I had to return to Sri Lanka.” (Statement, p. 62)
The Tribunal’s findings and reasons
The Tribunal’s findings and reasons pp. 118 - 122 are as follows:
The Tribunal, in assessing the applicant for a protection visa, must decide whether he meets the Convention requirements of a refugee and take into account the interpretations of the Australian courts of the definition and the legislation enacted. Key elements of the definition, the attendant legislation and the Courts’ interpretations were described in earlier sections of these Reasons for Decision.
The applicant claims to be a national of Sri Lanka. Based on the documentary and oral evidence, the Tribunal is satisfied that the applicant is a national of Sri Lanka. The Tribunal is also satisfied that the applicant is of Tamil ethnicity.
The Tribunal accepts the applicant’s account of where he lived, the family’s experiences during the time that the conflict escalated in Jaffna and his parents’ concern to keep the applicant and his siblings away from the conflict and with contact with the LTTE. The Tribunal accepts that the applicant was arrested by the police in October 1990 when he was waiting to inspect a house and that he was questioned, detained and inappropriately treated at that time. The applicant conceded that he still had his old address in Jaffna on his identity card and that may have been part of the reason why he was under greater suspicion than he had changed his address to that of his father’s with whom he had been sharing a house. The Tribunal also accepts that the applicant was again detained in April 1998 at a checkpoint and also that he, his father and his mother’s cousin were taken in for questioning overnight. The country information cited above indicated that around April 1998 and in the earlier months, there were many bombings and many Tamils were taken into detention at that time. The Tribunal notes that on the two occasions when he was detained for up to three days, the applicant was released after his father paid a bribe indicating that the security authorities did not believe him to be involved in the LTTE. The Tribunal is not satisfied that the authorities would have released him had they believed that he was indeed an LTTE operative.
The Tribunal now turns to considering whether the applicant’s questioning and detention in 1990, and in 1998, constitute persecution of the applicant on the basis of his ethnicity, imputed political opinion or other Convention ground. Given the circumstances in 1990 and the applicant’s lingering around the area with no address in Colombo, the Tribunal is not surprised that the applicant would come under suspicion. In the incidents in 1998, the applicant stated that he had been beaten and questioned and the Tribunal accepts that he was. Whilst such treatment is inappropriate, it is not serious enough in the Tribunal’s view toe be described as “torture”. The Tribunal accepts and sympathises with the resentment that the applicant and other Tamils who are not involved with the LTTE feel about their treatment by Sri Lankan authorities. It is clear from the country information that Tamils are more likely to be detained for questioning than Sinhalese or people of other races. However, the actions of the police in detaining people for questioning is permitted by law and have the legitimate purpose of protecting the general welfare of the state by seeking to prevent terrorism. Even though the actions may be discriminatory and the questioning style sometimes inappropriate, they do not necessarily constitute persecution. In Paramananthan v MIMA (1998) 94 FCR, Davies J observed:
Acts done in the protection of the community in the course of the identification or punishment of criminals or terrorists would not ordinarily be seen as persecution of the individuals affected.
The Tribunal finds that the detention and questioning of the applicant by the police in October 1990 and in 1998 does not amount to persecution of the applicant.
The applicant claims that he may be subject to arrest and interrogation if he returns to Sri Lanka on the basis of information that the police have about him and because he has applied for a protection visa. The applicant’s adviser made claims in a similar vein. The Tribunal prefers the country information cited earlier to the claims of the applicant and his adviser on this issue and finds that there is not a real chance that the applicant will be persecuted on his return to Sri Lanka on account of his earlier encounters with the police or because he has applied for a protection visa in Australia.
He stated that Arul, one of the alleged LTTE operatives who were said to have threatened him if his father did not get the water supply information, had been arrested just before he left in July 1998 to come to Australia. The applicant conjectured that Arul might tell the authorities about him and his father. The Tribunal does not accept the applicant’s speculation. It is not satisfied that a person arrested on the basis of being a possible LTTE member would tell the authorities that he had threatened a friend or acquaintance and demanded information about Colombo’s water supply from his father. The Tribunal is not satisfied that the applicant’s name has been given to authorities and that they would be interested in him as a result on his return. The information from the DFAT and other international sources as cited earlier indicated that it is unlikely the applicant will face serious consequences on his return. The applicant left Sri Lanka legally to visit his sister and attend her child’s funeral. Whilst he had some unpleasant dealings with the police, he was released by them after questioning and representations and money from his father. The Tribunal is not satisfied that the applicant’s acquaintance with Arul though his workmate will result in consequences for him even if Arul was arrested prior to his departure. There is no evidence to indicate that the authorities have sought the applicant after his departure from Sri Lanka nor that they will on his return.
The applicant indicated that he was a person who did not go out much except to work and back citing his fear of being caught up at a checkpoint as he once was. Whilst Tamils have been frequently rounded up after major security incidents, the country information such as that in the UK Home Office report indicates that there are now fewer such searches and that there is greater accountability sought of the police and security forces. The country information indicates that Tamils who have a Colombo address and have a valid reason for being in Colombo are far less likely to be taken in for questioning at checkpoints or in roundups than Tamils who are only temporarily there or who have recently come from a war zone or who have a relative known to be a LTTE member. The applicant gave evidence that his family are not involved in the LTTE. The applicant lived in Colombo from 1990 until he came to Australia. His father has lived there for nearly forty years and has many acquaintances there, two of whom even arranged jobs for the applicant with their firms. The applicant is now aged thirty three and the country information indicates that it is younger men with no reason to be in Colombo that are particularly at risk. The Tribunal is not satisfied that there is real chance that the applicant is likely to be sought by the authorities on return to Sri Lanka on the basis of his ethnicity or imputed political opinion.
The applicant has stated that the fears that the LTTE could harm him as he and his father did not cooperate with the directions of the LTTE operatives in getting the documents they wanted on water supply issues. Whilst the Tribunal accepts much of the applicant’s evidence and that of his father, the Tribunal is now somewhat sceptical that such demands were actually made. However, even if they were, the applicant’s father has now retired from the Water Supply Board and if he had difficulties getting relevant information whilst still working there, it would be even harder now. The Tribunal is not convinced that the applicant and his father were actually required to get those plans or if they were, that the friends that asked him to get them were actually on a mission for the LTTE. The Tribunal is not satisfied that the LTTE would have an interest in the applicant or his father were they to return to Sri Lanka and that there is a real chance of their persecution by the LTTE.
Taking into account all of the above, both individually and cumulatively, the Tribunal finds that if the applicant were to return to Sri Lanka now or in the foreseeable future, there is not a real chance that the applicant would be persecuted for his race, imputed political opinion or any other Convention reason. The Tribunal finds that the applicant does not have a well-founded fear of persecution.
Conclusion
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s. 36(2) of the Act for a protection visa.
The Law
Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.(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 person's 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.Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
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 erroneous findings or makes 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 is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323).
Findings and conclusions
Error of law – failure to address correct question – meaning of persecution
The applicant contends that the Tribunal seriously misunderstood the nature of the protection of human rights afforded by the Refugees Convention. The applicant also submits in the same context that the Tribunal failed to take into account a relevant consideration and failed to act in accordance with Australia’s international treaty obligations. The essence of the applicant’s contention is that the Tribunal has erred in law and acted without jurisdiction in concluding that the applicant, although beaten in detention, did not suffer persecution. Counsel for the applicant submitted that the assault in the course of arbitrary detention as claimed by the applicant and accepted by the Tribunal must amount to persecution.
I am satisfied there is no evidence that the Tribunal failed to consider whether the facts which it found, as to past harm, constituted persecution. Indeed, the Tribunal made an express finding that such facts did not constitute persecution. Nor am I satisfied that the Tribunal misapplied the definition of “persecution”. The Tribunal specifically referred to the correct test at CB 101 and made further reference to that definition in its “findings and reasons” (CB 118). The Tribunal said that the persecution “must involve serious harm” to the applicant and “systematic discriminatory conduct”. The Tribunal also noted that examples of “serious harm“ for the purposes of section 91R included significant physical harassment and “ill treatment”.
I am satisfied that, on the authorities, it is a question of fact and degree as to whether there is serious harm of a persecutory nature and that this is a central matter for the Tribunal. In Weldt v Minister for Immigration and Multicultural Affairs (2001) FCA 835 at paragraph 23, Finkelstein J said:
“The prosecutors then say that the Tribunal failed to consider whether a six day detention suffered by the prosecutors was persecutory, and failed to consider whether there is real chance of such treatment occurring again. It is true that in two paragraphs dealing with the six day detention the Tribunal did not specifically say "this is not persecution". However, it is clear that what the Tribunal decision and reasons were in relation to this incident. The Tribunal said that it had doubts whether the detention actually happened, noting that it did not find Mr Weldt's account of his arrest and detention entirely satisfying. The Tribunal went on to say that if the detention did happen, the result was not serious for the prosecutors as they were released and were able to travel back to Colombo and leave Sri Lanka from an official airport. …
It is apparent that the Tribunal did not consider the level of maltreatment was sufficiently serious to constitute persecution, and if it did, it was not carried out for a Convention reason. These views were open on the evidence.”
In NAPL v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 1263, Wilcox J said at paragraph 17:
“… It is not apparent to me why the Tribunal member thought the legitimate exercise of their duties would involve police holding a person for weeks, or months, at the time, without charge, and assaulting him during his detention. However I think the Tribunal's conclusion is one of fact and not susceptible to review in this Court.”
And in Arumugam v Minister for Immigration and Multicultural Affairs (1999) FCA 251, Lindgren J said at paragraph 37:
“The present issue is one of fact and degree and so is precisely the kind of issue the determination of which is a matter for the RRT not for this Court: cf Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 (Hill J) at 271. While I have sympathy for the applicant, the conclusion reached by the RRT does not appear, on the material before me, to be one that was not open to it.”
In Buksh v Minister for Immigration and Multicultural Affairs (2001) FCA 1504, Katz J held:
49 I note in that connection that, in Saha v Minister for Immigration & Multicultural Affairs [2001] FCA 520(27 April 2001, unreported), Beaumont J dealt (at [57]-[59]) with a submission that the RRT had erred in law "when it considered that being beaten and badly injured, or being shot at was not serious enough to constitute persecution". His Honour referred, in dealing with that submission, to the decision of the High Court in Vetter v Lake Macquarie City Council (2001) 178 ALR 1 and quoted the following passage from the joint reasons for judgment of Gleeson CJ and Gummow and Callinan JJ in that case (at 8; footnotes omitted):
"[24] Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in Australian Gas Light Co v Valuer-General:
`[I]f the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law ...'
[25] In his speech in Edwards (Inspector of Taxes) v Bairstow Lord Radcliffe identified an error of law as arising if `the true and only reasonable conclusion contradicts the determination'."
50 Having quoted that passage, Beaumont J then said,
"Applying that test to the present case, I do not think it can necessarily be said that the facts of an attack and being injured or the fact of being shot at, are necessarily either within or outside the description used in the Convention, in its definition of persecution, for that purpose. It is simply not possible to generalise in this area in a way that will throw up necessarily a question of law."
51 The application to the present case of the approach taken by Beaumont J in Saha would presumably have required me merely to decide whether the conduct concerned was necessarily within the notion of persecution as used in the Convention. If it was not, then I would not have disturbed the RRT's conclusion on the question. It appears to me that it would have been very difficult for me to conclude that the conduct concerned was necessarily within the notion of persecution as used in the Convention.
Accordingly it is not for me to substitute my opinion whether conduct amounts to persecution. I am satisfied that the conduct concerned was not necessarily within the notion of persecution as used in the Convention. The Tribunal accepted that the applicant had been questioned, detained and inappropriately treated in 1990, and in regard to the incidents in 1998, the Tribunal accepted that the applicant had been detained, beaten and questioned. The Tribunal went on to find that “the detention and questioning of the applicant by the police in October 1990 and in 1998 does not amount to persecution of the applicant” (CB 120).
I am further satisfied that the Tribunal correctly recited and applied the definition of “refugee” contained in Article 1A(2) of the Convention as qualified by sections 91R and 91S of the Migration Act. Further, I am not satisfied, as submitted by the applicant, that the international instruments to which Australia is a signatory, or academic writing in the field, must be relied on to interpret the meaning of “persecution” which is developed in the cases and is now the subject of an express legislative provision in section 91R. I am further satisfied that the decision in Wang and Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 upon which the applicant relies is clearly distinguishable on that basis.
However, even in the event that the Tribunal had erred with respect to the issue of persecution this conclusion would not have affected the ultimate outcome as the Tribunal found there had been a change in the applicant’s circumstances and the situation in Sri Lanka. These changes led the Tribunal to the conclusion that there was no real chance of the applicant being taken in for questioning or in roundups and there was no real chance of the applicant being of interest to the Sri Lankan authorities on the basis of ethnicity or imputed political opinion. The Tribunal also found there was not a real chance that the applicant would be persecuted “on account of his earlier encounters with police” (CB 120).
Failure to take into account relevant considerations
The applicant also submitted that the Tribunal failed properly, or at all, to consider whether the applicant had a well-founded fear of persecution by reason of having suffered persecution in 1990 and 1998. In that regard, I refer to and repeat my earlier findings with respect to what occurred in 1990 and 1998.
It is further contended by the applicant that the Tribunal did not apply the “real chance test”, as stated by the High Court in Chan Yee Kin v Minister for Immigration and Multicultural Affairs (1989-1990) 169 CLR 379, with respect to whether the applicant had a well-founded fear of persecution because of a real chance that Arul might under interrogation give the applicant’s name to the authorities. I do not accept that proposition. The Tribunal found “the applicant conjectured that Arul might tell the authorities about him and his father. The Tribunal does not accept the applicant’s speculation.” (CB 120). The Tribunal further stated that it was not satisfied that the alleged LTTE operative would tell the authorities about the alleged threats to the applicant. Finally, the Tribunal said that it was not satisfied that the applicant’s acquaintance with Arul through his workmate “will result in consequences for him” (CB 120).
The applicant also made submissions that the Tribunal failed to consider properly, or at all, whether the applicant had a well-founded fear of persecution because of a real chance that he might be detained or mistreated on the basis of his ethnicity or imputed political opinion but instead considered whether he was likely to be sought on that basis. I accept the respondent’s submission that the sentence in which the word “sought” appears (CB 121) is the last sentence in a paragraph in which the Tribunal assesses whether the applicant would be of any adverse interest to the Sri Lankan authorities if questioned at checkpoints or in roundups. Accordingly, in that context, the Tribunal’s findings in the last sentence relate to the level of adverse interest in the applicant at, for example, a checkpoint or roundup and not whether he would be actively sought by the authorities. I agree with the submission of the respondent in regard to this issue as well as a number of others, that the applicant is inviting the Court to overly dissect the reasons in the manner contemplated by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-275.
Taking account of irrelevant considerations
The applicant contends that the Tribunal wrongly took into account an irrelevant issue when considering whether treatment in the past amounted to torture. However, I am satisfied that the reference to torture in that context does not reflect the application of such a test to the findings as to conduct. Nor is there any error in respect of the Tribunal’s finding that the questioning and detaining of Tamil suspects, even if discrimininatory, did not necessarily constitute persecution.
And, in any event, even if the matters identified by the applicant were relevant and were taken into account, due to of the change in both the applicant’s circumstances and the situation in Sri Lanka previously identified, no error affected the outcome, the Tribunal found that there was no real chance of the applicant been taken in for questioning at checkpoints or in roundups and there was no real chance of the applicant being of interest to the Sri Lankan authorities on the basis of his ethnicity or imputed political opinion.
The final submission made by the applicant is that it was his legitimate expectation that the Tribunal would notify the applicant in the event that it did not intend to apply principles from the International Covenant on Civil and Political Rights (ICCPR). The applicant submitted that this was a jurisdictional error and I was referred to the High Court decision of Minister for Immigration and Multicultural Affairs, Re Ex parte Lam (2003) HCA 6. That case related to the failure of an administrative decision maker that indicated an intention to take certain procedural steps. Counsel for the respondent submitted that the doctrine of legitimate expectation only relates to procedural, not substantive, matters. The respondent further submits that procedural fairness can only operate in the absence of express statutory authority to the contrary and I accept that submission. There is an is indication in the form of sections 36 and 91R of the Migration Act which make it clear what matters are to be considered; in my view this precludes any possibility that the applicant had a legitimate expectation that certain procedures would be followed in line with an international convenant. In any event, there is no evidence before me of any unfairness to the applicant in respect to these proceedings.
In all the circumstances and for the reasons that I have outlined, the application is dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 15 April 2004
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