VLAT v Minister for Immigration
[2004] FMCA 457
•18 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VLAT & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 457 |
| MIGRATION – Application for a protection visa – review of a decision of the Refugee Review Tribunal – privative clause decision – whether Tribunal failed to act in accordance with substantial justice – no well-founded fear of persecution – no reviewable error disclosed – application dismissed. |
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Vargas v Minister for Immigration and Multicultural Affairs [2001] FCA 1025
Braganza v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1542
SAAZ v Minister for Immigration and Multicultural Affairs [2002] FCA 791
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
| Applicants: | VLAT, VLAU and VLAV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 151 of 2003 |
| Delivered on: | 18 June 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 18 June 2004 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| The Applicants: | Applicant VLAT |
| Counsel for the Respondent: | Mr W. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDER
The application is dismissed.
The first named applicant pay the costs of the respondent to be taxed in default of agreement.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001 the Court certifies that it was reasonable for the parties to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 151 of 2003
| VLAT, VLAU and VLAV |
Applicants
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
These proceedings commenced by the applicants filing an application in the Federal Court of Australia on 3 January 2003. That application was transferred from that Court by order of Sundberg J on 17 February 2002 to continue in this Court. On 25 November 2003 the applicants were ordered by Walters FM to pay costs thrown away fixed in the sum of $2000. That payment of costs has not, as at this date, been made by the applicants to the respondent.
The applicants' application was amended by amended application dated 21 February 2003. The applicants proceed pursuant to section 39B of the Judiciary Act 1903 and section 475A of the Migration Act 1958 (Cth) (“the Act”). The grounds relied upon by the applicants are as set out in B(1)(a) to (h) inclusive of that application. The applicants filed on 28 March 2003 contentions of fact and law.
The applicants are the first-named applicant, who was accompanied, when entering Australia, by the second and third‑named applicants, who are the wife and infant son of the first-named applicant. Hereafter I shall refer to the applicants as "applicant".
The respondent has filed a court book and supplementary court book, together with contentions of fact and law. The supplementary court book contains a transcript of proceedings before the Refugee Review Tribunal which occurred on 21 November 2002.
The first-named applicant is a Sri Lankan citizen of Tamil ethnicity who entered Australia on 23 November 2001. He was travelling on a Sri Lankan passport issued on 27 June 2001 which contained a visitor (class TR) visa valid for three months and granted in Colombo on
22 October 2001.
By application lodged with the respondent's department on 18 December 2001 the first-named applicant applied for a protection (class XA) visa. The application included the second and third-named applicants, however they made no separate claims and the application was therefore dependent upon the claims made by the first-named applicant, which were set out in a statement sworn 17 December 2001 accompanying the application. The applicants were interviewed by a delegate of the respondent on 7 May 2002. On 14 June 2002 the delegate determined that the first-named applicant was not a person to whom Australia had protection obligations and refused his application. As a consequence the second and third-named applicants were also refused.
On 19 July 2002 the applicant applied for review of the delegate's decision to the Refugee Review Tribunal (“the RRT”), pursuant to the provisions of the Act. The applicant made submissions to the RRT and provided it with certain country information. The Tribunal conducted a hearing on 21 November 2002. The applicant was represented by his migration adviser. The first-named applicant gave oral evidence. The first-named applicant handed to the Tribunal an email from his brother and various news articles. The Tribunal affirmed the delegate's decision on 22 November 2002, handing that decision down on
13 December 2002.
In these proceedings the applicant contends that the Tribunal's decision is affected by jurisdictional error.
Legislative framework
Section 65 of the Act provides that:
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Section 36(1) of the Act provides for a class of visa known as a protection visa. Section 36(2) provides that a criterion for the grant of a protection visa is that the applicant is a noncitizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967.
Article 1A(2) of the Convention provides that a refugee is any 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, is unable or, owing to such fear, is unwilling to return to it.
The Migration Legislation Amendment (Procedural Fairness) Act 2002 commenced on 4 July 2002. Item 6 of that Act inserted a new section 422B at the beginning of Division 4 of Part 7 of the Act. Division 4 prescribes how the Tribunal should conduct its review. The amendments made by item 6, including section 422B apply in relation to any application for review made on or after the commencement date, that is, 4 July 2002. Accordingly this section applied to the proceedings before the Tribunal in this matter. Section 422B(1) provides:
This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
The Explanatory Memorandum to the Migration Legislation Amendment (Procedural Fairness) Bill 2002 provides that the purpose of the Bill is:
... to provide a clear legislative statement that specified "codes of procedure" in the Act are an exhaustive statement of the requirements of the natural justice hearing rule.
The Explanatory Memorandum noted that in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 the High Court held that the "code of procedure" for dealing fairly, efficiently and quickly with visa applications did not exclude common law natural justice requirements. The majority, the Memorandum said, considered that such exclusion would require a clear legislative intention and that there was no such clear intention in the Act. The Memorandum further said:
The purpose of this Bill is to provide a clear legislative statement that the "codes of procedure" identified in the Bill are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
The Second Reading Speech was to the same effect and concluded with the Minister's statement:
... these amendments are necessary to restore the Parliament's original intention that the Migration Act should contain codes of procedure that allow fair, efficient and legally certain decision‑making processes that do replace the common law requirement of the natural justice hearing rule.
The decision is a “privative clause decision” within section 474(2) of the Act.
The phrase "privative clause decision" in section 474(1) is defined in section 474(2) so as to mean relevantly a:
…decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act…
A decision will not be regarded as made under the Act if it involves a failure to exercise jurisdiction or an excess of jurisdiction. If there has been jurisdictional error because, for example, of a failure to discharge "imperative duties" or to observe "inviolable limitations or restraints", the decision in question cannot properly be described in the terms used in section 474(2) and is thus not a "privative clause decision" as defined.
Refugee Review Tribunal decision
The Tribunal correctly stated the applicable legal principles at the commencement of its reasons and proceeded to find that it was not satisfied, having considered the evidence as a whole, that the applicant was a person to whom Australia had protection obligations under the Convention and that therefore the applicant did not satisfy the criterion in section 36(2)(a).
The Tribunal found that the applicant was a Sri Lankan citizen and ethnically Tamil. Otherwise, the Tribunal rejected the applicant’s claims. In summary:
a)the Tribunal did not accept that the applicant was being sought by the police in relation to the activities of a person known as S or any other Tamils that the applicant aided, including in his hotel days. The claim made by the applicant was that S and his associates, all the Tamils of the 1984 incident, were members or supporters of the LTTE. The Tribunal found it implausible that covert LTTE operatives would stay in tourist hotels primarily frequented by foreigners. The Tribunal was satisfied either that S and the other Tamils were not LTTE cadres and were not suspected of being LTTE or alternatively that they did not stay in the hotels were the applicant worked;
b)the Tribunal then went on to say that even if the applicant did know and unwittingly assist a person called S in the 1980s who has been sought by the police since 1989 in relation to the LTTE, the Tribunal did not accept that the applicant faced a real chance of being seriously harmed as a consequence. The Tribunal made this finding as a result of several factors. Firstly, the Tribunal found it difficult to believe that the police would revive pursuit of this matter 12 years later. Secondly, the applicant's involvement with S as a hotel worker was very peripheral and unlikely to have ever been recorded by the police. Thirdly, the Tribunal found difficulty in understanding why the police would be interested in an acquaintanceship whose last manifestation was in 1989. Finally, even if the authorities were for some reason now approaching all S's old friends the Tribunal did not accept that there was a real chance the applicant would be treated with any hostility, let alone charged. The Tribunal found the applicant did not fit the established profile of someone who would be independently seen as suspicious in Colombo and his involvement with S was an ancient one. The Tribunal found the applicant's argument that he faced being detained, charged or physically harmed far-fetched;
c)the Tribunal did not accept that a person referred to as J was detained and assaulted and was satisfied that the applicant fabricated that incident in order to strengthen his claims. The Tribunal also noted the applicant gave two different dates for the event claimed;
d)the Tribunal did not accept that the difficulties the applicant described in obtaining a passport were anything out of the ordinary. The Tribunal accepted that the applicant was insulted, questioned and photographed by police whilst working for a development agency in the mid-90s but did not accept that that constituted persecution. The Tribunal did not accept that the applicant was subjected to harassment and hardship, was assaulted, threatened with death and escaped death many times due to his ethnicity. The Tribunal noted that the applicant had had a good education and had been steadily employed, including rising to the level of general manager. The Tribunal did not accept that the accumulation of his experiences with suspect Tamils put the applicant at risk. Looked at realistically the applicant's life had been one of respectable, middle class stability. The Tribunal did not accept that the applicant's son was at risk of being forcibly recruited by the LTTE. Given the son's stated ethnicity and religion the Tribunal found that claim to be far-fetched.
The Tribunal agreed with the applicant that the peace process in Sri Lanka was vulnerable in many ways and could be undermined by hardline Sinhalese groups very easily. However, the chance of anything serious happening to the applicant as a consequence of any future resumption of fighting the Tribunal found to be speculative.
The Tribunal rejected the applicant's claims and was not satisfied on the evidence that the applicant had a well-founded fear of persecution within the meaning of the Convention. The Tribunal noted that the fate of the second and third-named applicants depended upon the outcome of the first-named applicant's application and thus they likewise could not be granted protection visas.
Consideration
The Tribunal did not fail to properly consider the applicant's claims, nor did it ignore relevant material, as is evident from the reasons and findings contained therein. The applicant's claims amount in substance to a challenge to the findings and thus the merits of the Tribunal's decision. That is not a matter for this court. It was not necessary for the Tribunal to make incidental findings on each and every item of evidence before it.
In Vargas v Minister for Immigration and Multicultural Affairs [2001] FCA 1025 at 28 Kenny J said:
The Tribunal is not, however, obliged to refer to every submission and each item of evidence relied upon by an applicant: see Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 593 per Kirby J.
The Tribunal did not fail to act, as the applicant asserts, in accordance with substantial justice. In any event a failure to comply with section 420(2)(b) would not give rise to a reviewable error (see Braganza v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1542 and SAAZ v Minister for Immigration and Multicultural Affairs [2002] FCA 791 at 31 per Mansfield J).
The Tribunal made findings on the claims made by the applicant. It was open to the Tribunal to reject critical aspects of the applicant's claims and, in doing so, to find aspects of the applicant's evidence implausible. The Tribunal, in critical respects, rejected the applicant's credibility. As was observed by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423:
A finding on credibility ... is the function of the primary decision‑maker par excellence ... The reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.
The Tribunal referred extensively to material regarding peace talks, some of which was provided by the applicant and in relation to which the applicant and his adviser made specific submissions, and some of which was provided by country information that was before the Tribunal. The Tribunal accepted the peace process was vulnerable but found that the chance of anything serious happening to the applicant if the talks broke down, and as a consequence fighting resumed between the LTTE and the government, was no more than speculative. That was a finding of fact open to the Tribunal. The Tribunal was not required as a matter of procedural fairness to:
discuss with the applicant the relevance of the breakdown of peace talks -
as the applicant asserts. The applicant was given the opportunity to address this issue and did so, both orally and by the provision of country information. It was a matter for the applicant to advance before the Tribunal whatever evidence or argument the applicant wished to advance in support of his contention that he had a well‑founded fear of persecution for a Convention reason.
The applicant further asserted that the Tribunal did not explain to him why it made reference to certain general country information and that he was not asked to comment thereon. He contended that he was entitled to an explanation and to know what weight the Tribunal placed on the additional information. He claims to have been denied the right to respond and referred in particular to material concerning the large-scale arrest of Tamils. The applicant referred to section 424A of the Act. 424A(1) is subject to 424A(3), which provides that the section does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. I accept the respondent’s submissions as to the formulation of this claim and response namely that the material to which the Tribunal referred was general country information, being about a class of persons of Tamil ethnicity. The Tribunal was not required to give particulars of that information to the applicant. In any event information about the position of Tamils in Sri Lanka and in Colombo specifically was put to the applicant at the hearing. Also the Migration Legislation Amendment (Procedural Fairness) Act 2002 applies to the decision and accordingly there is no question of it being challenged for breach of the requirements of procedural fairness generally.
The Tribunal comprehensively rejected the claims put forward by the applicant and concluded it was not satisfied that the applicant had a well‑founded fear of persecution within the meaning of the Convention. There is nothing in the reasons to suggest the Tribunal did not consider the reasonably foreseeable future. The Tribunal, having found that the applicant was not at risk, found:
The chance of anything serious happening to the applicant as a consequence of any future resumption of fighting has to be said to be speculative.
That statement accords with the judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559. At 572 their Honours said:
Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50% chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well‑founded if it is merely assumed or if it is mere speculation.
The applicant also claimed the Tribunal did not consider the risk which the applicant's young child might face of recruitment by the LTTE. The reasons indicate that the Tribunal specifically rejected that the applicant's child was at risk of being forcibly recruited by the LTTE and given his ethnicity (Sri Lankan‑Malay) and religion (Islam) the claim was far-fetched. The child did not make any claims of his own.
In submissions made before the Court this day the applicant argued that the Tribunal had made up its mind before hearing the matter. An examination of the reasons indicates this clearly not to be the case and there is no apprehension of bias claim raised in the amended application that was filed by the applicant. The applicant also, in submissions before the Court this day, made reference to his uncle being burnt alive in 1977. Nowhere in the application or the material provided to the Tribunal does that claim appear. It is not a claim which the applicant appears to have ever made previously.
No jurisdictional error has been committed by the Tribunal. The applicant's claim is entirely unmeritorious and should be dismissed. The applicant will pay the respondent's costs.
I, Sophie Killen, certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 18 June 2004.
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