VRAF v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 703

FEDERAL COURT OF AUSTRALIA

VRAF v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 703

MIGRATION – appeal – no error disclosed

Migration Act 1958 (Cth) s 91R

Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323, referred to

APPLICANT VRAF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 26 OF 2005

MARSHALL J
31 MAY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 26 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	VRAF APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	31 MAY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 26 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	VRAF APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	31 MAY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of a Federal Magistrate given on 23 December 2004. On that day his Honour dismissed an application by the appellant for judicial review of a decision of the Refugee Review Tribunal (“the RRT”).

   Background

2. The appellant is a citizen of Sri Lanka. She entered Australia on 12 August 2000 as the holder of a visitor’s visa (valid for 3 months) to attend the baptism of her nephew and be his godmother. On 14 September 2000, the appellant applied for a protection visa. On 28 September 2000 a delegate of the respondent refused that application.

3. By application received by the RRT on 18 October 2000, the appellant sought a merits review of the decision of the delegate by the RRT. In a decision dated 12 June 2003, and “handed down” on 4 July 2003, the RRT affirmed the delegate’s decision that the appellant was not entitled to a protection visa.

4. The basis of the appellant’s claim was that she feared persecution, on account of her imputed political beliefs and the political beliefs of her family and her husband’s family, if returned to Sri Lanka. Put shortly, she relied on the following matters in support of her application:

   ·    while she was in Australia, a mob, hostile to the political party she supported, entered her house by force and assaulted her husband and her seven year old daughter and threatened to kill every member of her family;

   ·    the threats and assaults arose as a consequence of her father being a member of Parliament in the Provincial Council, who belonged to the Peoples Alliance (“the PA”) and her brother-in-law being the private secretary of a Minister in the PA Government. Both men had spoken publicly in support of a new proposed Sri Lankan Constitution;

   ·    the action of the mob of supporters of the United People’s Party (“the UNP”) had caused her whole family to go into hiding;

   ·    in Sri Lanka when one member of a family is involved in politics, the whole family is victimised; and

   ·    the authorities in Sri Lanka are incapable of protecting her as they, themselves, fear for their own lives and the lives of their families.

5. On 26 November 2002 the appellant gave oral evidence before the RRT in support of her application. However, the transcript of that hearing is not before the Court.

6. During the oral hearing, the appellant told the RRT that political rivalry still existed in Sri Lanka and that the people opposed to her family would not forget them if they returned. By this time her husband and daughter had joined her in Australia and had separate applications for protection visas refused by the RRT.

   The RRT decision

7. The RRT was not satisfied that the appellant had applied for a protection visa in Australia because she feared persecution in Sri Lanka for the reason of her political opinion or imputed political opinion. It observed that the appellant showed little knowledge of the political situation in Sri Lanka despite her claim that her father was a politician. The appellant was confused about which party was in Government. The RRT considered that, given that the PA was in power when she applied for a protection visa, she did not fear persecution on account of imputed political opinion.

8. The RRT was not satisfied that the appellant’s husband gave reliable evidence about the UNP mob’s alleged attack on the family home in September 2000. It found that the appellant and her husband had been untruthful about the reasons why the appellant applied for a protection visa. It did not accept that the appellant’s house had been attacked and that threats were made to kill members of her family. The RRT found that that claim had been fabricated for the purpose of applying for refugee status in Australia.

9. The RRT considered that there was no real chance that the appellant would be persecuted for any Convention reason, if she returned to Sri Lanka in the reasonably foreseeable future. It accepted that the appellant may be imputed with a political opinion supportive of the PA because of the political opinions of other members of her family. It also accepted that political violence was an ongoing problem in Sri Lanka. It further accepted that the appellant’s husband and father may have been subjected to threats about the time of the December 2001 general election. The RRT noted that as at November 2002, the PA had been out of office for almost one year, the UNP was in power and no members of the appellant’s family had suffered persecution during that time because of their political opinion.

   The reasoning of the Court below

10. Before the learned Federal Magistrate the appellant’s counsel pursued only one ground of review. He submitted that the RRT had erred by taking into account an irrelevant consideration in a way that affected the exercise of its power. The irrelevant consideration was identified as the appellant’s lack of political knowledge when assessing her claim to be persecuted for her imputed political opinion.

11. His Honour observed that the RRT did not accept that the appellant subjectively feared persecution. He noted that part of its reasoning for so concluding was that she lacked knowledge about the most basic aspects of politics in Sri Lanka. He considered that such knowledge was relevant to an assessment of her credibility. Therefore, his Honour considered the issue of the appellant’s political knowledge not to be an irrelevant consideration. Alternatively, his Honour noted that even if it was an irrelevant matter, the RRT had an independent basis for its finding, that is, its rejection of the pivotal evidence about the alleged attack on the appellant’s family home in Sri Lanka.

    The grounds of appeal

12. The appellant filed her own notice of appeal, apparently without legal assistance. She raised two discursive grounds. Both grounds repeated slabs of the judgment below and then said the Federal Magistrate was wrong in saying what was there set out, without saying why he was wrong.

    The written outline of submissions

13. In her written outline of submissions the appellant repeated the claims which she made to the RRT. The appellant also repeated the submission put by her counsel before his Honour that the finding about her level of political knowledge was an irrelevant consideration. A further aspect of that argument (not being one raised below) was that it was also irrelevant for the RRT to place emphasis on her family’s close relationship with “strong political personalities” in Sri Lanka.

14. The appellant also raised another new matter, alleging that the RRT had erred in law by considering that generalised threats and stone throwing did not amount to persecution. She contended that her family had suffered from persecution at their home and that the RRT did not dispute that fact.

    Consideration

15. The new matters raised on appeal are totally devoid of merit. The RRT did not err in law in its consideration of the meaning of “persecution”. It disbelieved the appellant’s claim that she had been persecuted as a matter of fact. In the context of considering whether the appellant would face a real chance of persecution if returned to Sri Lanka, the RRT correctly stated that generalized (non-specific) threats and stone throwing does not constitute persecution. Such matters are beyond doubt, not examples of the infliction of serious harm as being “significant physical harassment” or “significant physical ill-treatment”; see s 91R of the Migration Act 1958 (Cth), (emphasis added).

16. It is also wrong to submit that it was irrelevant for the RRT to place emphasis on her family’s close relationship with “strong political personalities”. The appellant’s claim relied on the political connections of her family.

17. The attack on the RRT’s emphasis on the appellant’s lack of political knowledge is also unjustified. His Honour, below, was correct to assess the appellant’s lack of political knowledge to be central to her credibility, especially as she had alleged that her father was a politician in Sri Lanka.

18. If the RRT did take into account an irrelevant consideration by considering the appellant’s lack of political knowledge, it did not take into account that consideration in a way that affected the exercise of its power, see Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323 at [82]. At p 13 of its reasons for decision the RRT independently relied on “the lack of detail in her claims about other incidents of a persecuting nature and the fact that the party she claims her family supported was in power for the previous six years prior to her departure …”, as independent reasons for rejecting her claim.

    Disposition

19. There is no merit in the appellant’s appeal. It is dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             31 May 2005

The Appellant failed to appear.
Counsel for the Respondent:	Ms J Macdonnell
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	31 May 2005
Date of Judgment:	31 May 2005