VWBJ v Minister for Immigration
[2005] FMCA 610
•10 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWBJ & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 610 |
| MIGRATION – Protection visa – whether definition of ‘well-founded fear’ misapplied – whether contravention of ss.424 and 424A of the Migration Act – whether jurisdictional error – breach of natural justice. |
| Migration Act 1958, ss.91R, 91S, 424, 424A, 475A Judiciary Act 1903, s.39B |
| Chan v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412 Minister for Immigration and Multicultural Affairs v Guo (1997) ALR 567 Ibrahim v MIMA (2000) 175 ALR 585 |
| Applicants: | VWBJ, VWBK, VWBL & VWBM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 132 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 26 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 10 May 2005 |
REPRESENTATION
| Counsel for the Applicants: | Mr J Pennell |
| Solicitor for the Applicants: | Sulaika Dhanapala |
| Counsel for the Respondent: | Mr C Fairfield |
| Solicitors for the Respondent: | Stedman Cameron |
ORDERS
The Application as amended be dismissed.
The Applicants shall pay the Respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 132 of 2004
| VWBJ, VWBK, VWBL & VWBM |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this application there are four applicants, a mother and her three sons. They are nationals of Sri Lanka who entered Australia on 31 July 2002. It is the applicant mother (the applicant) who makes specific claims for refugee status, although all applicants lodged applications for protection visas with the respondent department on 12 September 2002. On 22 October 2002 a delegate of the respondent refused the applications and on 25 October 2002 the applicants applied for review of that decision by the Refugee Review Tribunal (the RRT). The RRT in a decision dated 25 November 2003 affirmed the decision of the delegate to refuse a protection visa. An application was filed by the applicants in the Federal Court of Australia on 22 December 2003 seeking judicial review of the RRT decision pursuant to s.475A of the Migration Act 1958 (Cth) (the Act) and pursuant to s.39B of the Judiciary Act1903 (Cth). That application was transferred to the Federal Magistrates Court.
The applicants have relied upon contentions of fact and law dated 17 May 2004 and it is noted that reference is made to a document entitled Amended Application dated 19 April 2004 which predated the contentions. It is further noted that solicitors who had previously acted for the applicants filed a notice of withdrawal on 25 June 2004 and that new solicitors were now on record acting for and on behalf of the applicants. Counsel appearing before the court provided a further document, namely, the "Applicant's Submissions" dated 26 April 2005. It would be clear therefore that the respondent in its contentions of fact and law filed 7 July 2004 has not had the opportunity of replying in writing to the applicant's latest submissions relied upon in court on the day of the hearing. It had been indicated to the parties that if
I considered it necessary, I would permit both parties to file and serve supplementary submissions in writing. Counsel for the respondent, however, was prepared to make submissions both in relation to the claim as originally presented for and on behalf of the applicants and the latest submissions made both by counsel before the court this day and in the document entitled Applicant's Submissions.
By way of background it is noted that the applicant’s claim of a well‑founded fear of persecution was because of her political opinion. Specifically she claimed to have been a supporter of the Sri Lankan Freedom Party (SLFP) which had previously been in government as part of the Peoples Alliance (PA). The PA lost the national election to the United National Party (UNP) in December 2001.
The applicant has relied upon in the claim before this court grounds which in brief terms include the following:
1)The Tribunal has misapplied the definition of "well founded fear" as to what constitutes a real chance of persecution pursuant to s.91R of the Act.
2)The Tribunal has contravened s.424 of the Act by failing to obtain further information in relation to the applicant's persecution or failing to invite any person to give any further information in relation to the applicant's persecution.
3)The Tribunal contravened s.424A of the Act by failing to give the applicant particulars of any information it would reasonably require to make a positive finding pursuant to s.91R of the Act or to ensure the applicant understood fully what she needed to show the tribunal to make out her case pursuant to s.91R of the Act or to invite the applicant to comment on the persecution suffered.
4)The tribunal erred in failing to take into account relevant evidence and therefore denied the applicant natural justice.
5)The tribunal failed to consider whether the applicants were at risk of persecution because of their membership to a particular social group, namely, the PA party. The RRT misapplied the definition of "well‑founded fear" as to what constitutes a real chance of persecution and in the process contravened s.424A and s.476(1)(e).
In considering those grounds it is relevant to note certain parts of the material which demonstrate the way in which the case was put before the RRT by the applicant. The applicant was represented before the RRT was represented and detailed submissions had been made for and on behalf of the applicant for the consideration of the RRT. In the application for a protection visa (Court Book page 46) the applicant states the following:-
“My fear of persecution arose due to the political opinion and I had such a profile that attracted the attention of the UNP whose acts of violence constituted persecutory behaviour.”
In the application for review before the RRT the applicant states the following (Court Book page 72):-
“I am a refugee because I will be persecuted in Sri Lanka for refugee convention reasons of my expressed and imputed political opinion.”
In submissions made for and on behalf of the applicants by correspondence dated 10 November 2003 the then solicitor and migration agent for the applicants states the following in relation to the issue of persecution (Court Book page 88):-
“Such persecution arose due to her imputed political opinion, more specifically, her active and high profile support of the SLFP.”
In the same document from the applicant's then representative the following passage appears under the heading "Convention-Based Persecution" (Court Book page 91):-
“The persecution that the applicant fears is for reasons enumerated in the Convention definition - due to both actual and imputed political opinion. …
This is demonstrated by the fact that the applicant has developed a profile in Sri Lanka solely due to her support of the SLFP. The applicant has been intimidated, harassed and threatened by supporters of the UNP over her involvement with the SLFP.”
In the same document a submission is made by the applicant's then representatives as follows (Court Book page 100):-
“We submit that the applicant has a well‑founded fear of persecution based on her political opinion (actual or imputed).”
In dealing with the claim before the RRT, the indication by the applicant of her reliance upon her imputed political opinion was referred to by the RRT under the heading "The Refugee Review Tribunal Application". Further in its decision the RRT sets out under the heading "Findings and Reasons" the following in relation to the issue of political involvement (Court Book 176‑7):-
“The Tribunal accepts the applicant provided her evidence in a forthright and honest fashion. It accepts she holds subjective concerns for herself and her children if they returned to Sri Lanka. This subjective concern, however, is not sufficient to establish a ‘well‑founded’ fear of persecution for a Convention reason.
The Tribunal accepts the applicant had limited involvement as a political organiser and supporter of the SLFP, which was a component of the PA, which was the ruling party in Sri Lanka prior to the December 2001 election. It also accepts as a result of this involvement, she had an increased political profile in her local area, and could have been subject to a degree of harassment in the immediate post December 2001 election period, including being verbally abused, threatened and having stones thrown at her house. It does not however accept she would face the same degree of harassment or intimidation at the current time, nor does it accept she would be subjected to the same degree of harassment if now returned to Sri Lanka. In reaching this conclusion, the Tribunal takes into account country information above which suggests the Sri Lankan political process is a volatile and often turbulent one, which had been associated with acts of violence, including, in some cases murder. The Tribunal also notes that such activities tend to diminish after the immediate election fever has passed, and does not believe that realistically the applicant faces a real chance of serious harm to herself or her children if she now returned to Sri Lanka, almost two years after the election in which she was involved. In reaching this conclusion, the Tribunal also notes her own evidence that her own role prior to the December 2001 election was minimal, and that she had not been involved in politics since that election.
The Tribunal does not accept the applicant's past experiences suggest any systematic action of an official nature against her by authorities, nor does it accept the harassment she had experienced was officially supported or sanctioned by authorities. In reaching this conclusion, the Tribunal takes into account Country Information above which suggests the current ruling party (UNP) has sought to distance itself from such activities, to punish persons engaging in election violence and even supported a plan to compensate victims of electoral violence regardless of who had caused that violence.
The Tribunal notes the applicant's political involvement was limited to one localised area in which she and her family were living at the time of the general election in December 2001.
It does not accept she had a political profile outside her immediate area, and indeed with the passage of time since the December 2001 elections, does not accept she would now be exposed to even the same level of harassment and intimidation which applied immediately after the election. In this regard the Tribunal also notes she was able to live elsewhere within Sri Lanka between December 2001 and March 2002 and again between May 2002,and again between May 2002 and her travel to Australia, suggesting that any political profile was localised and not widespread.”
In dealing with the issue of the applicant's fear of persecution, the RRT in setting out the key elements to the Convention definition notes that ss.91R and 91S of the Act "now qualifies some aspects of article 1A(2) for the purpose of the application of the act and the regulations to a particular person". Specifically, the RRT refers to the fact that the applicant must be outside his or her country and must fear persecution. It notes that under s.91R(1) of the Act persecution must involve "serious harm" to the applicant (s.91R(1)(b)) and systematic and discriminatory conduct (s.91R(1)(c)). It notes the expression "serious harm" includes, for example, a threat to life or liberty, significant physical harassment or ill‑treatment or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood where such hardship or denial threatens the applicant's capacity to subsist: s.91R(2) of the Act.
In considering the elements to the convention definition of "refugee" the RRT, significantly for the present application, states the following (Court Book page 162):-
“Fourth, the applicant's fear of persecution for a Convention reason must be a 'well‑founded' fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a 'well‑founded fear' of persecution under the Convention if they have genuine fear founded upon a 'real chance' of persecution for a Convention stipulated reason.
A fear is well founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation.
A 'real chance' is one that is not remote or insubstantial or a far‑fetched possibility. A person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.”
I note in passing that the RRT in considering the definition of "refugee" and specifically the issue of a well‑founded fear of persecution seems to have effectively adopted what the High Court had said in the matter of Chan v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412. In that case from the headnote it is clear that Dawson J held that the phrase "well‑founded fear of being persecuted" contained both a subjective and an objective requirement. Whilst there must be fear of being persecuted, it must not all be in the mind. There must be a real chance of persecution before fear of persecution could be well founded. A real chance was one that was not remote regardless of whether it was less or more than 50 per cent. It is not necessary for me to refer in further detail to that decision or the RRT's reference to the principles to be applied.
In the submissions before this court it was argued for and on behalf of the applicants that the decision ought to be set aside on the basis that there is what may be described as an error of a kind which would cause the court to set aside the decision and grant relief by way of rehearing by a differently constituted RRT.
Ground 1: The Tribunal has misapplied the definition of "well-founded fear" as to what constitutes a real chance of persecution pursuant to s.91R of the Act
It was argued by the applicants in support of this ground that the applicant's claim was one whereby membership of the PA was an essential and significant reason for the persecution and that the applicant had been an active member of the PA in her area. Further, the applicant was a member of a family connected with the intelligence services of Sri Lanka. The RRT failed to consider the applicant as a member of a class of people who may be persecuted by reason of their connection with a security officer. It was further argued that the applicant's persecution involves serious harm in accordance with s.91R(2). The various threats raised by the applicant were recited in support of this ground. It was further argued that the applicant's persecution was systematic and discriminatory by reason of the fact that it was regular and deliberate and performed by unruly elements of the UNP. Again, the applicant's claims were recited in support of this ground. Reliance was placed upon the decision of Chan and also the decision of Minister for Immigration and Multicultural Affairs v Guo (1997) ALR 567 at 576 as follows:-
“A well‑founded fear of persecution would indicate that so long as an objective situation is established by the evidence, it need not be shown that the situation would probably result in persecution but it is enough that the persecution is a possibility.”
That passage cites the passage from Chan per Mason J at 418. It was argued that the tribunal from its conclusion had incorrectly applied what is described as a "balance of probabilities" test in relation to the applicant's likely persecution rather than the "well‑founded fear" test. Reference was made to the decision of Gaudron J in Ibrahim v MIMA (2000) 175 ALR 585 where her Honour states at 589 the following:-
“The convention does not require that the individual who claims to be a refugee should have been the victim of persecution. The convention test is simply whether the individual concerned has a well‑founded fear of persecution.”
The respondent in relation to this ground has submitted that the RRT had correctly applied the principles extrapolated from the Chan decision and had not misapplied the principles to be applied from other decisions, including the reference to the High Court decision in Ibrahim. It was argued by the respondent that in this instance the claim as put by the applicant had been considered and that consideration of the facts in the light of the RRT's application of the relevant law could not be the subject of any challenge by way of judicial review.
In my view, the respondent's submissions in relation to this ground are correct. I do not see any error of law in the application of the principles to be applied in considering the definition of a "well‑founded fear". Further, I do not see any difficulties arising in this matter in relation to the manner in which the RRT has applied s.91R of the Act. That section, whilst providing for some further guidance and/or qualification to the definition certainly provides matters to be taken into account as instances of serious harm but otherwise does not, in my view, detract from the task as presented to the tribunal based upon the case as presented by the applicant. It seems to me that on a proper reading of the RRT's decision, it has dealt with the claim and the background to the claim in considerable detail and has not misdirected itself at all in relation to the definition of "well‑founded fear". The extract from the RRT decision referred to earlier in this judgment demonstrates that it has effectively applied the principles which are relevant, including application of s.91R of the Act and the principles set out in the decision of Chan. I cannot see any error in the manner in which the RRT has approached this task when considering the definition of "well‑founded fear". Ground 1 should therefore fail.
Ground 2: The Tribunal has contravened s.424 of the Act by failing to obtain further information in relation to the applicant's persecution or failing to invite any person to give any further information in relation to the applicant's persecution
In support of the claim that the tribunal had contravened s.424, it was submitted on behalf of the applicants that although the tribunal had in fact written to the applicant advising that it had considered the material in relation to the application, it had failed to advise as to any additional information it thought necessary for the applicant to make her case out pursuant to s.91R of the Act. It was claimed that it failed to invite any person to give further information in relation to the applicant's persecution. Although inviting the applicant to give oral evidence at the hearing, it failed to inform the applicant that if appropriate other individuals could also give oral evidence. At the hearing itself, whilst receiving documentation from the applicant, it failed to hear from the applicant as to their significance or their relevance to the case.
The respondent submitted that s.424 is permissive, not mandatory, and it is not the responsibility of the RRT to provide an indication of the applicant as to how she should make out her case. It is not for the RRT to refer to specific sections, nor is it obliged to advise the applicant of the significance of the material lodged for and on behalf of the applicant.
In my view, it is noteworthy that the RRT in correspondence dated 13 October 2003, when inviting the applicant to attend a hearing, states the following:-
“You can also ask the tribunal to obtain oral evidence from another person or persons.”
It is clear to me that there is also in the same letter a witness's form to be completed if the applicant requires the RRT to obtain oral evidence from another person. The letter further states the applicant should note:-
“The tribunal does not have to get evidence from any person you name.”
In my view, s.424 in the present case has not been contravened. The RRT has properly corresponded with the applicant in relation to the options available to the applicant. It is not a matter for the RRT to then advise the applicant as to additional information thought necessary for the applicant to make a case out pursuant to s.91R, the RRT does not have an obligation to advise the applicant of the significance of material received by the RRT from the applicant. The RRT, in my view, does not have to provide to an applicant the basis upon which it might be claimed that there has been information provided of a kind which does not have any significance or relevance. Ground 2 fails.
Ground 3: The Tribunal contravened s.424A of the Act
It was argued by the applicant that the RRT failed to give the applicant particulars of information it would reasonably require to make a positive finding pursuant to s.91R of the Act and to ensure the applicant fully understood what she needed to show the tribunal to make her case out pursuant to that section or otherwise to invite the applicant to comment on the persecution suffered.
Those arguments were rejected by the respondent and it was submitted that there is no obligation to provide information of the kind sought.
I agree with the respondent's submissions. In my view, just as in relation to the issue concerning an alleged contravention of s.424 of the act, I can see no base upon which this court could conclude that there has been a contravention of s.424A of the Act. There is no obligation on the part of the RRT to seek particulars of information from the applicant that the RRT would reasonably require to make a positive finding pursuant to any provision of the Act, nor is it the obligation of the RRT to ensure, if that indeed be possible, that an applicant understood fully what was needed to show the tribunal to make out her case pursuant to any provision of the Act, including s.91R of the Act. Further, it is not the responsibility of the RRT to simply invite the applicant to comment on persecution suffered. Accordingly this ground fails.
Breach of natural justice
The arguments advanced for and on behalf of the applicant in relation to a claimed breach of natural justice, in my view, seemed to canvass the merits of the application by referring to specific evidence regarding the role of the applicant in the election process and of her political involvement. The RRT did not fail to consider the material as put, including the fact that the applicants are family members of an intelligence group, nor did it fail to take into account the husband's involvement as an intelligence officer or that he was currently in hiding. Those matters were referred to by the RRT and despite the submissions made for and on behalf of the applicant in relation to the claimed breach of natural justice, including the suggestion that the finding of the applicant's persecution not being systematic and being contrary to the evidence do no more than seek to agitate the facts which in an application of this kind is not permissible, I am not satisfied that there has been any basis provided upon which this court would conclude that there has been a breach of natural justice. I otherwise accept submissions made for and on behalf of the respondent that no denial of natural justice has occurred in the present case. There was indeed evidence in the present case to lead the tribunal to reach the conclusion it did reach set out earlier in this judgment concerning the claim as put by the applicant and in particular permitting it to reach the conclusion concerning alleged systematic persecution. It is after all a fact‑finding mission embarked upon by the RRT on the evidence and material placed before it, which in this case included detailed submissions which quite properly remains a matter for consideration by the RRT.
It is noted that the RRT dealt in this instance with the nature and level of the political involvement of the applicant and further dealt with the chronology of events, including the events both leading up to and after the election and the departure of the applicant's husband. It further dealt with the applicant's ability to relocate and otherwise considered the real extent and nature of the applicant's political involvement. It reached conclusions which were reasonably open on the material and I am satisfied otherwise gave the applicant an opportunity through her representative and evidence to present her claim properly and thoroughly. The fact that it reached an adverse conclusion in relation to those facts does not of itself provide a basis upon which this court would conclude that there has been a denial of natural justice. This ground fails.
Failure to consider whether the applicants were at risk of persecution because of their membership of a particular social group, namely, the PA party
It seems to me that in support of this ground the applicant essentially seeks to reconstruct the claim as put before the RRT. The reference to the various documents recited earlier in this judgment indicate that the claim in this instance was put very clearly in writing on the basis of the applicant's political belief, that is, actual and imputed political opinion. Whilst it is clear that in the RRT decision it specifically refers to the applicant having a fear because she and her family are subject to attention because she was a staunch supporter of the PA and because she played an active role in the general elections in her district in close liaison with the organiser of the PA (see Court Book 163), it is equally clear that the RRT has been seized of the relevant facts in support of the application and the way in which the application was presented. It has considered the material, which implicitly includes consideration of membership of a social group, although in this instance the particulars of a social group were not precisely referred to by the applicant before the RRT.
Although the submissions by the applicant clearly canvass the failure to consider the application and the risk of persecution because of membership of a social group, it is noted and I accept, as submitted by the respondent, that in this case the RRT is not obliged to consider the claim that is not articulated. The submissions referred to earlier in this decision clearly articulate a claim of risk based upon actual or imputed political opinion. In the alternative, I accept, as submitted by the respondent, that the RRT is not obliged to consider a matter not put squarely or raised squarely on the material. In any event, I accept further that in this application there did not appear to be material before the RRT which would lead it to conclude that all members of the PA constituted a social group for the purposes of the convention. In those circumstances it is difficult to determine how it could be claimed in this application that the RRT has fallen into error by a failure to consider the applicant's membership of a particular social group, namely, the PA party. In my view, this ground should also fail.
It follows for the reasons given that the application as amended should be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 10 May 2005
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