VRAF v The Minister for Immigration
[2004] FMCA 1022
•23 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VRAF v THE MINISTER FOR IMMIGRATION | [2004] FMCA 1022 |
| MIGRATION – Protection visa – whether Tribunal relied on irrelevant consideration – whether independent ground for Tribunal’s finding. |
Craig v The State of South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
NACP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 499
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 129
| Applicant: | VRAF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 1044 of 2003 |
| Delivered on: | 23 December 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 17 December 2003 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Harkess |
| Solicitors for the Applicant: | Ruwan Samarakoon |
| Counsel for the Respondent: | Ms MacDonnell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be amended by removing on the names “VRAG” and “VRAH” from the heading.
The application is dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1044 of 2003
| VRAF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for review of a decision of the Refugee Review Tribunal given on 4 July 2003 affirming the decision of a delegate of the respondent not to grant the applicant a protection visa.
The application that was filed with the Court includes the applicant’s husband and child as applicants. At the hearing, both Counsel for the applicant and the respondent confirmed that the applicant wife is the only applicant before this Court. The husband and child had made separate applications for protection visas which have been dealt with separately.
The applicant is a citizen of Sri Lanka. She arrived in Australia on
12 August 2000 as the holder of a visitor's visa. On 14 September 2000, she lodged an application for a protection visa. On 28 September 2000, a delegate of the respondent refused the application. She applied for review of the decision to the Tribunal which affirmed the decision of the respondent on 4 July 2003.
Applicant's claims and Tribunal's reasons
The applicant claimed that she came from Sri Lanka to Australia to visit her relatives and to be a godmother at her nephew’s christening on 12 September 2000. She said that her husband had rung her from Sri Lanka on 4 September 2000 to tell her that a mob of people had entered their house and had assaulted him, their seven-year-old daughter and the applicant’s brother.
She said that her father belonged to the ruling People's Alliance party (PA) and was a member of the Provincial Council. She claimed that her brother-in-law was the private secretary of a minister in the PA government. She claimed that her father and her husband had spoken publicly at political meetings and that the whole family had been attacked. For this reason, they had to go into hiding. She claimed that under the circumstances, she feared returning to Sri Lanka because the Sri Lankan authorities would not protect her and she feared for her and her family's lives. She feared that if a new government came to power, it would take revenge on those who were currently in power. She said that the opposition United National party (UNP) was responsible for violence after the general election in October 2000.
The Tribunal saw the applicant as applying for a protection visa in Australia because she feared persecution in Sri Lanka for reasons of her political opinion or a political opinion imputed to her because members of her family were well-known supporters of the PA party.
The Tribunal accepted that the applicant was outside her country of nationality and political violence was an ongoing problem in Sri Lanka.
The Tribunal sets out in its reasons the questions it asked of the applicant concerning her knowledge of politics in Sri Lanka. In its findings and reasons, the Tribunal said that at the hearing, the applicant demonstrated minimal knowledge of the political situation in Sri Lanka despite her claim that her father was a politician, her brother-in-law worked for a minister and her husband was an active supporter of the PA party. It said that she did not understand the system of government in Sri Lanka, she did not know what Provincial Council her father was a member of, she could not recall details of her father's political career and she did not know when he had last stood for election.
The applicant's husband gave evidence. The Tribunal said that the husband said that he had experienced problems for a long time before coming to Australia. The Tribunal said that his wife had not mentioned these problems. The husband replied that this was because she was not involved in politics herself, but it was the pattern in Sri Lanka that these matters affected the whole family. The Tribunal noted that the applicant seemed to know surprisingly little about politics for someone who claimed to be the daughter of a politician. The applicant's husband said the applicant did not like him taking part in politics. He said that she had always disliked politics.
The Tribunal said that it was not satisfied by the applicant’s husband’s evidence in respect of the alleged attack on the house on 4 September 2000, and that that was the trigger for the applicant's protection visa application. The Tribunal said that the applicant's husband did not explain to its satisfaction why he had been unable to obtain assistance from the police in view of his allegedly strong connections with the government. It was not satisfied that the applicant's husband was a reliable witness.
The Tribunal found that both the applicant and her husband had been untruthful about the reasons why the applicant had applied for a protection visa and found that the applicant's house was not attacked by supporters of the opposing political party on 4 September 2000 who threatened to kill the family. The Tribunal found that the claim had been fabricated by the applicant for the purpose of applying for refugee status in Australia.
The applicant's grounds for review
The applicant filed contentions which contained a number of grounds, but the one pursued at the hearing relied upon the High Court decisions of Craig v The State of South Australia (1995) 184 CLR 163 and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. It was argued that the Tribunal had taken into account an irrelevant consideration. The irrelevant consideration was said to be her lack of political knowledge when assessing the claim that she was persecuted because of political opinion imputed to her because her father and husband had particular political opinions and affiliations, membership and support of the PA party.
In NACP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 499, a decision of Hill J in an appeal from the Federal Magistrates Court, and SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 129, a decision of the Full Court of the Federal Court in two appeals from single judges of the Federal Court, it has been held that failure to consider a relevant matter, or taking into account an irrelevant matter, can constitute jurisdictional error.
In SDAV, the Court said at 35:
The nature of jurisdictional error which will enliven the Court's power under s 39B of the Judiciary Act was discussed in Craig v The State of South Australia (1995) 184 CLR 163 (`Craig') at 179 and in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 (`Yusuf') where McHugh, Gummow and Hayne JJ said at 351:
`"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have the authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise that in accordance with the law.
Under the heading "Findings and Reasons", the Tribunal said:
In view of the applicant's lack of knowledge about even the most basic elements of politics in Sri Lanka-in particular, the fact that the PA party which her family supported was in power at the time she applied for a protection visa-the Tribunal is unable to accept that the applicant feared persecution for reasons of her political opinion or a political opinion imputed to her at the time she applied for a protection visa.
To satisfy the Convention definition of refugee, an applicant has to be a person unwilling to return to the country of former habitual residence "owing to well founded fear of being persecuted for reasons of race, religion, nationality membership of a particular social group or political opinion". The requirement has both a subjective element and an objective element. The subjective element is that the applicant has to fear persecution. The Tribunal found that the applicant did not fear persecution. It did not accept her evidence that she did. Part of its reasoning in reaching this conclusion was the applicant's lack of knowledge about even the most basic elements of politics in Sri Lanka.
When a person claims to fear persecution because of imputed political opinion, their knowledge of the circumstances which give rise to that imputed political opinion might be relevant. The trigger for the applicant’s claim was of being told about the attack upon the house and the assault of her husband and daughter and brother. She feared that the people that were opposed to them would take them and the Sri Lankan authorities would not provide protection. In the circumstances of this case, the applicant’s knowledge of politics in Sri Lanka might be relevant to the Tribunal’s assessment of her claim and credibility.
It might not be, but it is for the Tribunal to decide the questions of fact and to decide the relevance of the applicant’s knowledge of politics in Sri Lanka. Since it can be a relevant consideration, it cannot be a jurisdictional error for the Tribunal to have taken it into account.
Even if it was an irrelevant matter in the jurisdictional sense, it would not mean that the Tribunal’s decision should be set aside. The Tribunal found that the incident that the applicant relied upon as a principal matter in establishing the objective element, that is, that her fear was well founded, did not happen. The applicant’s reason for applying for a protection visa was the attack which her husband had told her had teken place on their home on 4 September 2000, or at least, the husband had told her about it on that date. The Tribunal rejected the husband's evidence that the attack had taken place. Therefore, there is an independent ground for the Tribunal’s finding.
The applicant's contentions raised other grounds, including reasonableness. In effect, they were a variation on the ground already dealt with. There is no basis for setting aside the Tribunal's decision. The application is dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Phipps FM
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