VPAX v Minister for Immigration - [2004] FMCA 411

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VPAX & ANOR v MINISTER FOR IMMIGRATION

[2004] FMCA 411

MIGRATION – Judicial review – protection visa – country information – regional information – whether jurisdictional error.

VPAV v Minister for Immigration [2004] FMCA 409
VGAO of 2002 v MIMIA (2003) FCAFC 68
Parra v MIMA (2000) FCA 85

Applicants:

VPAX & VPAY

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 696 of 2003

Delivered on:

25 June 2004

Delivered at:

Melbourne

Hearing Date:

25 May 2004

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr J Gibson

Solicitors for the Applicant:

Wimal & Associates

Counsel for the Respondent:

Mr C Fairfield

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application be dismissed with costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 697 of 2003

VPAX & VPAY

Applicants

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The Applicants in this application are mother and daughter. The firstnamed Applicant is the wife of Applicant VPAV in application MZ690/2003. A further application in proceedings number MZ697/2003 has been made by Applicant VPAW who is the son of the firstnamed Applicant herein.
In all applications before the Court similar amended applications have been relied upon and there are similar submissions made which for convenience were heard together though in each case there are individual matters which need to be addressed.
In this application it is appropriate however to note that the decision of the Court in VPAV v Minister for Immigration [2004] FMCA 409 applies to the extent that the decision of the Court relating to the relevant law and the specific issue of whether an error has occurred as a result of the claimed failure by the tribunal to consider relevant regional information specific to the Jaffna region applies equally to this application. I adopt and apply the reasoning in relation to those matters to this application. The RRT in this application likewise has not made any error in relation to this issue.
It is appropriate however to set out the details of the claim in this application as it is clear that the particulars are different insofar as a specific particular (1) has been subjoined to paragraph 1 of the Amended Application. The Amended Application provides the following details:-
1.The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s.65 of the Act to grant or refuse the application and its powers to conduct a review under s.415 of the Act. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that it proceeded upon an incorrect understanding or construction of a visa criterion of which it was required to be satisfied under s.36 of the Act:
Particulars
i) in assessing the real chance of future persecution from the LTTE the Tribunal failed to address the question whether he would be persecuted in his home region and then consider (if required) whether it was reasonable in the circumstances for him to relocate to another part of Sri Lanka.
ii) in assessing the real chance of future persecution from the LTTE the Tribunal failed to take account of relevant material going directly to the risk of persecution in LTTE-controlled areas which was independent from any information indicating an improvement in the security situation.
(iii) It misinterpreted the test of prospective well-founded fear by failing to assess whether the Applicant's fear of persecution was well-founded by reference to the geographical area which was his home region.
In this and in related matters Counsel for the Applicants indicated to the Court that particular (ii) would not be pursued in this application.
The factual background in the present application is that the Applicants as indicated are mother and daughter respectively. Both are Sri Lankan and both are Tamils. The Applicant Mother entered Australia on 20 October 2000. The Applicant daughter had entered Australia on 20 January 1998. On 23 November 2000 both lodged an application for a protection visa with the Respondent's Department. Only the firstnamed Applicant made specific claims under the Refugee Convention with the secondnamed Applicant being included in the first Applicant’s application as a member of her family unit.
On 15 August 2001 a delegate of the Respondent refused the application. By an application received on 7 September 2001 the Applicant sought review of that decision by the Refugee Review Tribunal (the RRT).
Both Applicants attended before the RRT on 5 February 2002 and gave evidence with the assistance of an interpreter. The Applicants were represented at the hearing. That hearing was held jointly with the hearing of the Applicant’s spouse VPAV and the Applicant’s son VPAW was also present at the hearing.
By a decision handed down on 2 May 2003 the RRT affirmed the decision of the delegate.
The Applicants filed an application on 27 May 2003 in the Federal Court of Australia seeking review of the decision of the RRT. The matter was transferred to the Federal Magistrates Court by order of the Federal Court made on 26 June 2003.

Applicants’ submissions

In this and in the related matters as indicated earlier there were submissions made in common and the principal submission in this matter and the other matters was that the decision was affected by jurisdictional error constituted by the RRT’s failure in assessing whether the Applicants had a well-founded fear of persecution from the LTTE if they were to be returned to Sri Lanka and had failed to address the question of whether they would be persecuted in their home region which is LTTE controlled (in part). In so doing it is submitted that the RRT failed to apply the correct test to determine the risk of persecution. As indicated earlier I have dealt with that principal issue and apply and adopt the reasoning of VPAV to this application.
In this case it is noted that reference was made to the RRT’s “acceptance of past harassment of the firstnamed Applicant in LTTE controlled areas” though I note that reference is made to whether it was reasonable in the circumstances for “him to relocate” when presumably it means “her” but otherwise seeks to challenge the RRT for its failure to address the question of whether “she would be persecuted in her home region”. In this application reference was made to the claimed errors in the RRT’s reasoning and in particular the Court was asked to note that in the decision there is “implicit acceptance of the claim made by the Applicant that in 1993 the LTTE tried to make her children join the movement.” It is further noted that the tribunal did not accept the Applicant’s account of what had happened to her son during the period from 1994 to 1996 based essentially on what it saw as inconsistencies in testimony between in the hearings. Reference was made to the Court Book at page 181 and the following passage:
“… The Tribunal finds that the applicant was not a person of adverse interest to the Sri Lankan authorities even though she was a Tamil from the north and she was questioned several times by the security forces because they were suspicious about her children.
The applicant has claimed to have been harrassed by the LTTE on various occasions to try and make her support their activities, but the Tribunal finds that this harassment was not of sufficient severity to constitute persecution.
The Tribunal finds that the applicant was harmed in the past because she lived in an area which was the focus of armed conflict between the Sri Lankan armed forces and the LTTE, but she was not targeted for persecution as an individual for a Convention reason.
The Tribunal does not accept the applicant’s account of what happened to her son during the period from 1994 to 1999. The applicant gave contradictory, vague and evasive responses to the Tribunal’s questions about where her son was living after 1994 and what he was doing. The Tribunal does not accept that the applicant is a reliable witness in respect of her son’s claims.”
The Applicant submitted that having found harassment had occurred in the past that the fault in the RRT’s decision was the approach it took to the issue of harm by the LTTE. Again reference was made to the region and failure to properly consider the region which has been the subject of the decision which I have adopted in the related mtater of VPAV.
The Respondent submitted that the written evidence before the RRT of the first Applicant was that she was unable to live in Jaffna or Colombo (see Court Book pp.32 and 72). Her oral evidence given at the hearing was in different terms. It was submitted it went further. The RRT summarised the Applicant’s evidence at Court Book p.175.4 in the following terms:-
“The Applicant said that she feared for her life if she had to return to Sri Lanka. There was nowhere she could live safely.” (Emphasis added)
It was submitted the RRT is only obliged to consider a claim articulated by the visa applicant (see VGAO of 2002 v MIMIA (2003) FCAFC 68 per Allsop J at [53] and [55]). It was submitted that at no stage did the Applicant claim to fear persecution because she would be compelled to return to any particular region of Sri Lanka. As recited above her evidence was inconsistent with such a claim and her claim was not squarely raised in circumstances merely because an element of the claim may be present (see Parra v MIMA (2000) FCA 85 per Wilcox J at [13] ). It was submitted that in the absence of a specific claim there was no requirement on the RRT to speculate as to where in Sri Lanka the Applicant might choose to reside in the reasonably forseeable future.
Other submissions were made by the Respondent referring to precise details of findings of the RRT which are not necessary to recite.
In my view applying and adopting the reasoning set out by this Court in the decision in VPAV and having regard to the particular circumstances of the Applicants in the present application, I am not satisfied that there has been an error of a kind which should attract judicial intervention in this decision.
The RRT has made a decision based upon the facts then before it and I am satisfied the decision was a decision reasonably open to the RRT on a proper consideration of the material. The acceptance of past harassment of the firstnamed Applicant in the LTTE controlled areas whilst clearly being a factor to take into account in making an assessment of the issue of whether there is indeed a real chance the Applicant would be persecuted or that her fears are well founded is only one factor to be taken into account. The finding by the Tribunal that it was satisfied that it would be “safe for the Applicant to return to Sri Lanka and there is not a real chance that she would be persecuted now or in the reasonably forseeable future by the Sri Lankan authorities for the reason of her Tamil ethnicity or a perception that she is a supporter of the LTTE because she is a Tamil from the north of Sri Lanka” was a conclusion reasonably open to the RRT.
Further it was open to the RRT to reject the Applicant’s account of what had happened to her son during the period 1994 to 1999 and as a question of fact open to it to draw a conclusion that the Applicant had given contradictory, vague or evasive responses to the RRT’s questions in relation to that issue.
I am otherwise satisfied that the submissions made for and on behalf of the Respondent in relation to these applications are correct to the extent that I have found in the related matter of VPAV.
Accordingly it follows that the appropriate order is the application should be dismissed with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 25 June 2004