VQAO v Minister for Immigration (No.2)
[2004] FMCA 561
•5 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VQAO v MINISTER FOR IMMIGRATION (No.2) | [2004] FMCA 561 |
| MIGRATION – Review of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
Migration Act 1958, s.91R(2)
S157/2002 v Commonwealth of Australia [2003] HCA 2
| Applicant: | VQAO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 828 of 2003 |
| Delivered on: | 5 August 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 5 August 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr W.G. Gilbert |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application be dismissed.
The applicant pay the respondent's costs fixed in the sum of $6000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 828 of 2003
| VQAO |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the RRT) made on 23 May 2003 which had affirmed a decision of the delegate of the respondent not to grant to the applicant a protection visa. The applicant is a 28-year-old man from Sri Lanka of Sinhalese ethnicity. He is a national of Sri Lanka who came to Australia on 25 November 1998 travelling on a student visa. The application for a protection visa was lodged on 17 May 2001 and a decision refusing that application was made by the delegate of the respondent on 3 December 2001. Thereafter application was made to the RRT and after a hearing which occurred on 13 May 2003 a decision was made, as indicated earlier.
When the matter commenced this day the applicant, who is unrepresented, sought to adjourn the application and for reasons which I gave that application was refused. The applicant has not provided an outline of contentions of fact and law in support of the application but otherwise relies upon the application which he filed originally in the Federal Court on 4 July 2003 as follows:-
1.The decision involved an error of law involving an incorrect interpretation of the applicable law.
Particulars
The Tribunal misinterpreted the law relating to the definition of refugees for the purpose of the Act.
2.The decision involved an error of law involving an incorrect application of the law to the facts as found by the Tribunal.
Particulars
a)The Tribunal misapplied the law relating to the definition of refugees for the purpose of the Act, including by failing to apply the law to the totality of the Applicant's circumstances;
b)The Tribunal failed to give genuine and realistic consideration to the claims of the applicant that his involvements as an active member of the United National Party and he worked for the ‘Anti‑Dug Society’ and the threat made to him;
c)The Tribunal failed to speculate about the possibility of the applicant being further harassed and persecuted upon his return to Sri Lanka.
3.There was no evidence or other material to justify the making of the decision.
Particulars
The Tribunal relied upon materials relating to the situation in Sri Lanka generally.
4.The decision was not authorised by the Act.
Particulars
The Applicant refers to and repeats the particulars to paragraphs
1 to 3 above.
By way of further background, it is clear that the applicant had raised before the RRT and indeed before this court essentially two bases upon which he fears persecution. The first is as a supporter of the United National Party (UNP) in Sri Lanka from 1994 to 1998 and, secondly because of his involvement with what is described as an Anti-Drug Society. Those two issues are referred to in the RRT's decision under the heading Findings and Reasons where the RRT states the following:
“The applicant fears persecution for two reasons. The first is because of his profile as a UNP supporter. In essence, the instances of harm the applicant claims he experienced as a result of this association with the UNP are: (i) he was assaulted on numerous occasions by members of the PA; (ii) he received threatening telephone calls; and (iii) a gunshot (or shots) went off at a UNP rally while he was attending. He also fears persecution because he uncovered drug dealers who were members of the PA. As a result of this, he claims that he his house was attacked and his dog poisoned. He also claims that he is being assaulted and threatened by drug dealers (who are normally PA supporters).”
In its decision the RRT then proceeds to make certain findings of fact. The findings it made have been set out conveniently in the respondent's facts and contentions and in summary include the following:
·The applicant's account regarding his mistreatment in Sri Lanka was most unconvincing.
·His evidence was generally vague and generalised. When asked for more precise details, his evidence was often contradictory without factual basis and seemed to be fabricated during the hearing.
·It did not accept that the applicant was assaulted by PA supporters with knives and/or batons as a result of his association with the UNP.
·It did not accept that the applicant had been subjected to any interference with his physical integrity as a result of his connection with the Anti-Drug Society.
·It did not accept the applicant's claim that his house was attacked and his dog killed, either by a mob of drug dealers or at all.
·Despite significant reservations about important parts of the applicant's claims, it nevertheless accepted that he was a low‑level supporter of the UNP who was subjected to anonymous threats over the telephone and that he had attended the UNP rally at which a shot or shots were fired. The tribunal also accepted that the applicant was a member of an anti-drug organisation.
·The tribunal did not attach weight to three letters provided by the applicant because they were vague, did not state the source of the author's knowledge and did not refer to any specific incidents.
·The tribunal found that the applicant did not face a real chance of persecution because of his involvement with the UNP because of his low profile as a supporter, a lack of official quality to the harm feared and the availability of protection from the police.
·Further, it was found the applicant's fear resulting from his anti-drug activities did not advance his claim. The tribunal did not accept that the applicant had been previously mistreated as a result of this connection.
·Further, the applicant had received adequate state protection in this regard.
·The tribunal further found that threats made to the applicant in the course of his involvement with the UNP and the gunshot at the UNP rally did not amount to serious harm in the terms of s.91R(2) of the Migration Act 1958. Further, it found the harm feared by the applicant as a result of his anti‑drug activity did not have a convention nexus.
·There was no evidence, it found, of any mistreatment of people so involved, nor was there any official element. In any event, it was decided by the RRT that the applicant could obtain adequate police protection should he have such fear.
Before me today it seems clear that the applicant relying upon the grounds in his application has further sought to rely upon what I would describe as issues of concern in relation to the facts as found by the RRT. It is not at all unusual for applicants who are unrepresented and who are not trained lawyers to seek to agitate the facts or otherwise seek review on the merits in an application of this kind. He has expressed concerns about the way in which the RRT dealt with his involvement in the Anti-Drug Society and has further expressed concerns that he was actually never questioned specifically about his work and involvement in that part of his claim. Those concerns as raised demonstrate in clear terms what might be described as an understandable lack of appreciation of the issues which this court has to deal with in an application of this kind.
In my view, the application before this court cannot succeed in circumstances where I am satisfied that there is no demonstrable error on the material before me made either by the RRT in the application of the appropriate law or in reaching findings and reasoning which could be said to be not open to it. Indeed quite the contrary. It seems clear to me that the findings of fact and the application of the law in this particular instance all appear to be undertaken by the RRT both within the law and in a manner which could only be said to be reasonably open. It is not for this court to challenge the findings of fact or to make alternative findings of fact in an application of this kind.
It is not necessary for me in these circumstances, as submitted by the respondent, to pursue issues in detail of the extent and nature of this court's jurisdiction having regard to those decisions in relation to privative clauses, nor is it necessary for me to visit in detail the principles which have arisen from the High Court decision in S157/2002 v Commonwealth of Australia [2003] HCA 2.
It is sufficient I accept to note there is no demonstrable error. None of the grounds sought to be relied upon in the application, in my view, are made out. It follows therefore that the application should be dismissed.
In the circumstances I am satisfied it is appropriate to make an order for costs in the amount claimed, which is considerably less than what would be paid if the appropriate scale was applied and I am prepared to fix costs in the sum of $6000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 5 August 2004
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