VDAV v Minister for Immigration

[2003] FMCA 325

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VDAV v MINISTER FOR IMMIGRATION [2003] FMCA 325

MIGRATION – Application for review of decision of Refugee Review Tribunal – whether jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1
Chan Yee Kim v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham (2000) 168 ALR 407
W148/00A v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 185 ALR 703
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural & Indigenous Affairsv Yusuf (2001) 180 ALR 1

Applicant: VDAV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ924 of 2002

Delivered on: 18 September 2003

Delivered at: Sydney via video link to Melbourne

Hearing Date: 3 April 2003

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Mr T Fernandez

Solicitors for the Applicant: Ruwan Samarakoon

Counsel for the Respondent: Mr W Mosley

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ924 of 2002

VDAV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 10 May 2002 affirming a decision of a delegate of the respondent to refuse to grant a protection visa to the applicant.  The Tribunal also refused to grant protection visas to the applicant’s husband and their two children.  The applicant applied to the Federal Court for a review of the Tribunal’s decision on 12 June 2002 and filed an amended application on 26 September 2002.  The applicant’s husband and two children were joined as applicants in these proceedings by consent order made on 13 November 2002. 

2. The applicant is a female Sri Lankan citizen of Sinhalese ethnicity who entered Australia on 28 September 1998 travelling on a Sri Lankan passport containing a visitor visa which was granted in Columbo on

   
   

   18 September 1998.  She was accompanied by her husband and two sons.  On 9 October 1998 she applied for a protection (Class XA) visa.  The application included her husband and two children.  The applicant and her husband each made their own claims to be a refugee but the children did not.  It was claimed that the husband was involved as a founder member of the Janatha Vimukthi Peramuna (JVP) political group in the early 1970s.  It was claimed he was detained for three months and mistreated in detention as a result of his JVP activities and that the family experienced a number of difficulties including harassment and threats on the lives of family members.  Because of these difficulties he resigned from the JVP.  However in the latter part of the 1990s JVP activists allegedly made threats to the family including death threats if the husband did not rejoin the group.  Cousins of the husband who had had JVP connections in the past were said to have been killed by unknown persons in 1987 and 1989. 

3. A further claim arose from the fact that the applicant wife’s brother-in-law served as the chief security officer to a former President of Sri Lanka who was a member of another political group, the United National Party (UNP).  The applicant wife claimed to fear harm or mistreatment at the hands of the current JVP organisation should her husband or sons refuse to join or support them.  She also claimed that should family members again become involved with the JVP they could attract the adverse attention of the Sri Lankan authorities. 

4. On 16 February 1999 a delegate of the respondent determined that the applicants were not persons to whom Australia had protection obligations and refused the application. 

The Tribunal decision

1. The Tribunal detailed the applicants claims and evidence and relevant independent information about the JVP and UNP activities in Sri Lanka in the past and at present.  The Tribunal accepted that the applicant husband was involved with the JVP in the early 1970s when he was 19 and 20 and that he was detained for three months and then released.  In a statement of 11 February 1999 he had claimed to have been involved in making weapons, planning violent attacks and other activities although he did not raise such activities when he discussed his association with the JVP during the Tribunal hearing.  However the Tribunal found that even if the nature and extent of his involvement was as he had claimed, the evidence of both applicant parents was that it had had no adverse consequences for them until 1997, more than

   
   

   20 years after the applicant husband’s claimed release from custody.  In particular his past JVP involvement had no adverse implications for him at the time of the brutal suppression of the party in the late 1980s even though the applicant husband claimed that he was providing some financial support to the JVP around this time.  The Tribunal concluded that this indicated that his past involvement was of no interest to the authorities.  The Tribunal did not consider that the murder of two of the husband’s cousins in the late 1980s by gangs of unknown people had any particular implications for the safety of the husband (who was not targeted by the JVP nor by the authorities at that time) or for his family. 

2. The Tribunal considered the applicants’ claims about JVPs attempts to engage his support after August 1997.  It concluded, based on an assessment of the evidence, that what the applicants claimed had occurred was not credible.  It gave reasons for this conclusion.  In particular it referred to independent information that the JVP had re-emerged as a participant in mainstream Sri Lankan politics, that it mobilised protests and rallies and had won seats in Parliament at recent national elections.  Against this background the Tribunal was unable to accept that JVP supporters had demanded that the husband or son join or support the JVP or that the family was threatened with serious harm if they did not do so.  The Tribunal found that there was no apparent reason why the JVP would seek to press the applicant family for support in the way described.  The wife’s suggestion that this may have occurred because the number of JVP supporters had dwindled by 1997 was said not to be supported by independent information about the growing support for the party.  The applicants had provided a handwritten statement by a Peace Officer recording that on 17 August 1998 the husband complained that two JVP members had asked him to join immediately or else for his son to join, otherwise they would kill the family.  The Peace Officer stated that he had gone to observe the place referred to by the applicant husband and was told by a few villagers that they had seen two unknown people walking across the canal. The Tribunal found this statement unconvincing when considered in context.

3. The Tribunal was not satisfied that the JVP had targeted the applicant parents for support and threatened them as claimed and did not accept that there was any credible evidence that the JVP would seek to do so in the future.  The Tribunal stated “The applicant parents’ fear that there could be a resurgence of JVP militancy is understandable given the brutality of the movement in the past but I do not consider that it is supported by the weight of evidence which is that the JVP is now established in the political mainstream”.  Nor did the Tribunal accept that the authorities in Sri Lanka would have any interest in the husband’s past involvement with the JVP.  The Tribunal gave reasons for this conclusion.  The involvement had occurred some 30 years ago, it had not been of interest when the authorities had undertaken a brutal campaign against people associated with the JVP in the 1980s, the party was now in the mainstream and many past activists were prominent in public life as JVP members.

4. The Tribunal also considered the claim based on the wife’s evidence that her brother-in-law had worked as a security guard for a former UNP President. This had had no adverse implications for the applicants in the past.  The claims appeared to be that people, including JVP people, might think that they had supported the UNP because of this connection.  The Tribunal did not believe that JVP supporters would take action against the applicants if they were to think that the family supported the UNP.  It had been a long time since the husband’s involvement with the JVP and the party of today was very different.  The evidence concerning the alleged JVP intimidation of the applicants was not credible.  The Tribunal found no reason to accept that the past occupation of the applicant wife’s brother-in-law would be a matter of significance in what might follow their return to Sri Lanka. 

5. The Tribunal concluded that the applicants’ fear of persecution was not well-founded because there was not a real chance that the applicant parents would come to harm now or in the reasonably foreseeable future as a result of the husband’s past association with the JVP or the applicant wife’s brother-in-law having worked as a security guard for the past UNP President.

The applicants’ contentions

1. Section 474 of the Migration Act 1958 restricts review of ‘privative clause decisions’.  The effect of this section has been considered by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1. In essence the effect of these authorities is that a decision made by the Tribunal that involves a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act (including a denial of natural justice) is reviewable notwithstanding s.474.

2. In written contentions the applicants submitted that the Tribunal erred in a number of respects. However, at the commencement of the hearing Mr Fernandez, Counsel for the applicants, stated that the only ground that he relied upon related to the Tribunal’s conclusion that the applicants’ fear that there could be a resurgence of JVP militancy was not supported by the weight of evidence that the JVP was now established in the political mainstream. It was submitted that the finding of the Tribunal in this respect was not supported by any evidence or other material and that the Tribunal had contravened s.430 of the Migration Act 1958.  It was also submitted that there was a duty on the Tribunal to delve into the future, that there had been no finding as to what the future could be as far as the applicant was concerned in relation to the JVP and that hence the Tribunal had not properly applied the ‘real chance’ test in Chan Yee Kim v MIEA (1989) 169 CLR 379. It was submitted that there was an absence of the necessary ‘element of speculation’ referred to in subsequent cases (Mr Fernandez referred to MIEA v Guo (1997) CLR 559 but cited to the Court part of the judgment of Kirby J in MIEA v Wu Shan Liang (1996) 185 CLR 259 at [293] to the effect that the test in Chan ‘involves the necessity of a measure of speculation about the chances held in store for the applicant and whether there was a real chance that made an established fear of persecution well-founded’). 

3. In support of these arguments the applicants rely on the extract from the Department of Foreign Affairs and Trade Country Information Report No. 171/01 of 13 June 2001 CX53772 which was relied on by the Tribunal.  Mr Fernandez drew attention to the statement in that Report that not all are placated by the JVPs revamped image, that a number of people take the view that the JVP might revert to violence if pushed into a corner and that the manifesto still advocates a revolutionary political agenda. 

4. He suggested that this evidence had not been considered by the Tribunal in its findings as to whether there was a real chance of persecution in the reasonably foreseeable future and that this failure constituted a jurisdictional error.  The necessary element of speculation about the future (see MIEA v Guo (1997) CLR 559 at [293]) was not present.

5. As Counsel for the respondent pointed out, the applicant claimed to fear persecution in relation to his JVP involvement on two bases:  first, a fear of persecution from the authorities as a result of his JVP involvement in the early 1970s.  The Tribunal did not accept that that the Sri Lankan authorities would have any interest in the husband’s past involvement with the JVP which had occurred some thirty years earlier.  No issue is taken nor error apparent in the Tribunal’s treatment of this aspect of the applicants’ claims.

6. The second basis was a claimed fear of harassment and threats by JVP members wanting him to rejoin the party and it was with this aspect that the applicant took issue.  The respondent submitted that the Tribunal findings that the claims of demands and threats by JVP activists were not credible was a matter for the Tribunal to determine being a question of fact and that no error was apparent in its determination.

7. The respondent also submitted that there clearly was material before the Tribunal on which the Tribunal could conclude that it did not believe that the JVP would have a resurgence of militancy, in particular the balance of the DFAT advice and other information referred to in the Tribunal reasons for decision concerning the JVPs present situation in Sri Lanka.  Insofar as the applicant took issue with the Tribunal’s conclusions in this respect it was said to be a disagreement with the weight attached to particular material or with the merits of the decision.  It was submitted that the finding was supported by evidence and the Tribunal did not fail to engage in the necessary speculation about the future in considering the prospect of resurgency of the JVP. 

8. The Tribunal found that what the applicants claimed in relation to alleged demands and threats by JVP activists from 1997 on was not credible.  It gave reasons for its decision based on material before it.  The applicants do not take issue with the manner in which the Tribunal approached its task in assessing the credibility of their past claims.  As McHugh said in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham (2000) 168 ALR 407 at [67] ‘a finding on credibility is the function of the primary decision-maker par excellence’ (also see W148/00A v MIMIA (2001) 185 ALR 703 at [64]).

9. As the actual claims made by the applicant as to the alleged recent attempts by the JVP to engage his support after August 1997 were rejected and as the Tribunal was not satisfied that the authorities would have any interest in the husband’s past involvement in the JVP the only basis for the applicants claim to fear persecution was the possible re-emergence of the JVP as a militant body in the future.  The applicants claim that the Tribunal failed to consider the possibility that there might be a re-emergence of JVP militancy and the possible implications for the applicants should this occur. 

10. To some extent this claim is a disagreement with the merits of the Tribunal decision or the weight to be given to particular aspects of the evidence before it.  This does not establish a ground for review. 

11. No contravention of s.430 of the Migration Act has been established. Section 430(1) obliges the Tribunal to prepare a written statement that sets out in its decision reasons, findings on materials, questions of fact and ‘(d) refers to the evidence or any other material on which the findings of fact were based’. As McHugh, Gummow and Hayne JJ stated in MIMIA v Yusuf (2001) 180 ALR 1 at [67] – [69], s.430 does not oblige the Tribunal to make findings on any and every matter of fact objectively material to its decision. It does not require the Tribunal to ‘make, and then set out, some findings additional to those which it actually made’. Furthermore in this instance the Tribunal did refer to the evidence on which its findings of fact were made. First it made findings in relation to the credibility of the applicants’ account of the JVP’s recent attempts to engage the husband’s support based on material to which it referred. Second, it referred to a considerable amount of independent information about Sri Lanka. It considered the JVP and its past history in Sri Lanka, that it had obtained legal status that was taken away from it and then re-conferred and that the organisation had had legal status since 1988. It referred to information contained in a Department of Foreign and Affairs and Trade cable (CX10078) indicating that the High Commission advised ‘that the JVP was not making a comeback as a armed military force’ and outlining the manner in which the JVP had been working towards becoming a political party involved in the democratic mainstream and fielding candidates in provincial and presidential elections. Also before it was the Department of Foreign Affairs and Trade Country Information Report (see CX53772) cited by Counsel for the applicants. The full extract appearing in the Tribunal reasons is as follows:

    (the JVP’s) growing influence has all been achieved through legitimate political and democratic processes and not through the violent tactics the JVP deployed in the early seventies and late eighties.  Wimal Weerawansa, the parliamentary leader, is the embodiment of the party’s revamped image.  The party retains its socialist basis, but gone is the militancy and the extreme Marxist-Maoist script of the JVP’s earlier avatar, to be occasionally nationalist sentiment.  The JVP remains adept at mobilising protests and has organised a number of mass rallies in the past year.  The themes of most of these have centred on the rising cost of living. 

    Not all in Sri Lanka are placated by the JVP’s revamped image.  A number of interlocutors who lived through the dark period of its militant ascendancy take the view that the JVP might revert to violence if pushed into a corner.  The party’s manifesto still advocates a revolutionary political agenda.  But most would agree that the JVP has learnt the lessons of history and will remain engaged in the democratic mainstream where it has fared well in recent times.  At recent national parliamentary elections and southern provincial council elections the JVP did not seem to resort to the violence and intimidation that characterised on occasion the campaigning of a number of the candidates of the major parties. 

    From this extract it is apparent that in the first paragraph and the last two sentences there is material on which the Tribunal based its findings of fact in relation to its rejection of the applicants’ fear that there could be a resurgence of JVP militancy.  The Tribunal referred in its findings and reasons to the evidence that the party was now in the mainstream and that many past activists were prominent in public life as JVP members although it also recognised that the applicants’ fear was understandable given the brutality of the movement in the past.  It has not been established that there was no evidence to support the Tribunal findings.  Insofar as the applicants take issue with the weight the Tribunal attributed to particular material that is a matter for the Tribunal. 

12. Furthermore, the Tribunal did not fail to engage in the necessary consideration of what might occur in the future as required by Chan.  It did ‘perform the function of speculation’ referred to by Kirby J in Wu Shan Liang.  The ‘speculation’ required in this context was explained by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Guo at [572] to relate to making findings as to whether or not an event might or might not occur in the future (as distinct from conjecture or surmise).  In this case the Tribunal properly set out the law at the commencement of its decision and applied such law in determining whether the applicants’ fear of persecution for a Convention reason was well-founded in the sense that there was a real substantial basis for it rather than being ‘merely assumed’ or ‘mere speculation’ (per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Guo at [572]).  The Tribunal engaged in the necessary consideration of the future in determining, in light of its findings in relation to past events in Sri Lanka, that the evidence did not indicate that the applicant husband’s past involvement with the JVP gave rise to a well-founded fear of persecution if the applicants were to return to Sri Lanka in the reasonably foreseeable future.  It did not accept that there was any credible evidence that JVP supporters would seek to target or threaten the applicants in the future or that the authorities would have any interest in the applicant husband’s past involvement in the JVP.  In so doing, the Tribunal properly considered whether there was a real chance that the applicant parents would come to harm now or in the reasonably foreseeable future as a result of the applicant husband’s past association with the JVP (or as a result of the applicant wife’s brother in law having worked as a security guard for the past UNP President). 

1. Contrary to the applicants’ submissions the Tribunal did take into account the possibility that the JVP may emerge at some stage in the future as militant armed body.  However, there was ample evidence before it (referred to in its decision) to support the Tribunal’s statement that it did not consider that the weight of evidence supported a resurgence of JVP militancy in the future.  The question as to what weight should be given to such material was one of fact and degree for the Tribunal to assess.  Its finding that the JVP was now established in the political mainstream was supported by a substantial body of evidence set out in the reasons for decision.  No particular material was referred to by the applicant as material not taken into account in this regard by the Tribunal other than one part of the country information report CX53772.  However this report not only refers to the views of some that the JVP might revert to violence if pushed into a corner but also to contrary evidence that most would agree that the JVP would remain engaged in the democratic mainstream where it had fared well in recent times and to information supporting this conclusion.  This is not a case of conflicting information in relation to some past event where the possibility of more than one version of the past was material to an assessment of the chance of persecution.  (See Wu Shan Liang at [281] per Brennan C, Toohey, McHugh and Gummow JJ). The material that indicated that the JVP might revert to violence (the views of some persons who had lived through the period of its military ascendancy and its party manifesto) did not satisfy the Tribunal that there was a well-founded fear of persecution in the future because it was contradicted by other material in relation to JVP’s present situation in the political mainstream in Sri Lanka. The decision-maker did not, by its process of factual findings on particular elements of the material provided, foreclose what Kirby J in Wu Shan Liang referred to as reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. As His Honour stated ‘it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not’ (at [293]). No error is demonstrated in the Tribunal’s attribution of weight to such material in ascertaining whether the requisite state of satisfaction had been reached. The Tribunal did not ‘put all speculation out of account’ as was submitted by the applicant and no error in this or any other respect has been established.

2. No jurisdictional error has been demonstrated.  There is no suggestion of any denial of natural justice.  The application must be dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date: