VWBH v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1104

FEDERAL COURT OF AUSTRALIA

VWBH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1104

Migration Act 1958 (Cth) s91R

Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220

VWBH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NO VID 23 OF 2004

HEEREY J
28 JULY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 23 OF 2004
BETWEEN:	VWBH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	28 JULY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the respondent’s costs.

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 23 OF 2004

BETWEEN:	VWBH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	28 JULY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicants seek constitutional writs setting aside a decision of the Refugee Review Tribunal which affirmed a decision of a delegate of the Minister to refuse a protection visa.  The applicants are a father (the applicant father) and daughter; other children of the father are included in this application.  The applicants are citizens of Sri Lanka and arrived in Australia on 3 November 2001.  They applied for a protection visa on 21 December 2001.  The delegate made the decision to refuse to grant a protection visa on 6 May 2002 in the case of the daughter, and on the following day in the case of the applicant father.  The Tribunal’s decision was given on 19 December 2003.

2. The applicant father’s claims were based on an alleged fear of persecution within the meaning of the Refugee Convention because of his political opinion or membership of a social group, namely supporters of the People’s Alliance (PA) in Sri Lanka.  He gave evidence of assaults on him and threats by supporters of the rival United National Party (UNP).  He claimed that the police were not able to protect him.  In particular he spoke of one occasion when a person hit him on the face through his van window.

3. The Tribunal substantially accepted the applicants’ accounts of these events.  The Tribunal did, however, raise some question as to the genuineness of the fear, having regard to the fact that the applicant father had come to Australia in April 2000, when his daughter had been married, and had then returned to Sri Lanka. 

4. Nevertheless, as I read the Tribunal’s reasons the decision did not proceed upon a finding that there was no subjectively genuine fear of persecution. Rather, the Tribunal concluded that the events in the past were not serious harm within the meaning of the definition of persecution in s91R of the Migration Act 1958 (Cth). The Tribunal also found that the applicants could obtain effective protection from the police on their return to Sri Lanka. The Tribunal said:

   “The applicants have sought police protection previously, and the police reports submitted by the applicant father with his protection visa application indicate the complaints were taken seriously.  It is reasonable that the police were not able to provide continuous protection in the circumstances described by the applicants, as the police evidently did not have enough information to investigate threats made over the telephone by an unidentified caller.”

5. The Tribunal referred to country information that suggests that law enforcement officials in Sri Lanka offer effective protection to citizens against politically motivated violence. 

6. In the amended application for review dated 20 April 2004 the applicants alleged jurisdictional error.  The particulars given were that the Tribunal failed to consider the applicants’ express claims that they were at risk of persecution because of their membership of the PA.  It was said the Tribunal ignored relevant material submitted by the applicant, namely:

   “(1) The physical assault on the applicant father together with death threats via phone and by people armed with guns, property damage, stating those events did not meet the definition of ‘real harm’.

   (2) The Applicants departure from the matrimonial home to mother-in-law/grandmother's house associated harassment for a convention reason.

   (3) The Tribunal failed to take into account the consideration that the Police did not actually protect people associated with PA Party.

   (4) The Tribunal failed to take into account the consideration that the Police actually participated in persecution for a convention reason.  The Tribunal failed to make any finding with respect to this consideration.

   (5) Evidence was presented by the Applicants namely, making complaints of threats, harassment, property damage, physical assault but the Police did not actually offer protection to the Applicants, who associated themselves with the PA party, despite the newspaper information.  The Tribunal ignored this factor.”

7. I think a fair reading of the Tribunal’s reasons indicated that the Tribunal did deal with the matters raised. As already noted, the Tribunal accepted the applicants’ accounts of past events and treated that as harm. Whether that harm could be characterised as “serious” for the purposes of s 91R was a question of fact and degree, and this was a matter exclusively for the Tribunal; likewise, its assessment of the reality of effective protection.

8. The amended application for review also alleged the Tribunal failed to consider, “what if it was wrong?”  In my view this was not a jurisdictional requirement imposed on the Tribunal.  It made firm findings on the matters it was required to consider, and that was all it was obliged to do; see generally Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220.

9. There is a further ground alleged, that the applicants were denied natural justice.  This in my opinion is not made out.  The Tribunal’s reasons indicate that they had raised with the applicants the essential matters on which its decision was based. 

10. Finally, the amended application for review alleges that the decision was so unreasonable that no reasonable decision-maker could have made it.  This ground is not made out.  As already mentioned, the Tribunal essentially made an assessment of the likelihood of the applicant father suffering persecution should he return to Sri Lanka, and the decision that it reached was well within the bounds which the evidence on its face disclosed.  So the application will be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             28 July 2005

Counsel for the Applicants:	Mr L U W Perera
Solicitor for the Applicants:	S Dhanapala
Counsel for the Respondent:	Mr W S Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 July 2005
Date of Judgment:	28 July 2005