VWVP v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1502

FEDERAL COURT OF AUSTRALIA

VWVP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1502

VWVP and APPLICANT M152/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 1648 OF 2004

SUNDBERG J
MELBOURNE
26 OCTOBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1648 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

VWVP
FIRST APPELLANT

APPLICANT M152/2003
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

SUNDBERG J

DATE OF ORDER:

26 OCTOBER 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be added as a respondent.

2.The appeal be dismissed.

3.The appellants pay the first 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 1648 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

VWVP
FIRST APPELLANT

APPLICANT M152/2003
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	SUNDBERG J
DATE:	26 OCTOBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellants appeal from a decision of the Federal Magistrates’ Court. Phipps FM dismissed their application to review the decision of the Refugee Review Tribunal to affirm the decision of a delegate of the Minister to refuse to grant them protection visas. (Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), Black CJ directed that the appeal be heard by a single judge of this Court.)

2. The first and second appellants are husband and wife respectively.

3. The bases of the appellants’ claims for protection visas, their evidence before the Tribunal and the Tribunal’s findings are contained in the Tribunal’s reasons.  The claims, the evidence and the Tribunal’s reasons are also summarised in Phipps FM’s reasons: Applicant M152/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 990.

4. The appellants filed contentions of fact and law (the contentions).  These focused on alleged errors in the Tribunal’s decision.  At the hearing, the appellants raised additional alleged errors.

5. By the contentions, the appellants claim that the Tribunal’s decision “was made without jurisdiction … [i]n that the Tribunal identified wrong issues, ignored relevant material, had regard to irrelevant material, applied the incorrect tests and/or misapplied the correct tests”.  The contentions go on to identify five errors.

6. By para 10 of the contentions, the appellants contend that the Tribunal ignored the second appellant’s evidence that she went into hiding after a break-in at her home.  However, the Tribunal specifically rejected that evidence.  It noted that “[i]t was only very late in the hearing that the [second appellant] claimed that she had gone into hiding – all her other evidence indicated that she remained at the one address until she came to Australia some four months after her husband”.  It later noted that it had “found that the [second appellant] continued to live at the same address” after the break-in.

7. By para 11 of the contentions, the appellants impugn the Tribunal’s finding that though “there is much general violence in Sri Lanka and that the [appellants] fear for themselves and their child’s safety should they return [it] is not satisfied that this fear is well-founded” in a Convention sense.  The appellants contend that such violence is politically motivated: ie it takes place for a Convention reason.  However, coming as it does at the very end of the Tribunal’s findings: ie only after the Tribunal rejected the appellants’ claims that (a) they were, and (b) there was a real chance they would be, the particular targets of persecution in a Convention sense should they return to Sri Lanka, there is no error in the impugned finding.  What matters is not whether violence at large exists for a Convention reason but whether violence is directed at a person for a Convention reason.

8. By para 12 of the contentions, the appellants assert that the Tribunal failed to have regard to the Sri Lankan state’s failure to protect them.  This is beside the point.  The Tribunal did not need to consider that question once it rejected the appellants’ claims that (a) they were, and (b) there was a real chance they would be, the particular targets of persecution in a Convention sense should they return to Sri Lanka.

9. By para 13 of the contentions, the appellants say that the Tribunal failed to have regard to the first appellant’s political beliefs impinging on his employment opportunities because the party he supported was no longer in government.  However, according to the Tribunal’s reasons, it seems that the first appellant had only suggested to the Tribunal that “a party association can help in such things”.  The loss of that advantage occasioned by the change of government cannot, of itself, amount to persecution in a Convention sense.

10. By para 14 of the contentions, the appellants claim that “[t]he Tribunal failed to speculate as to the possibility of the [appellants] suffering persecution if … they were to return to Sri Lanka”.  On no reading of the Tribunal’s reasons can that contention be sustained.

11. As noted at [4], at the hearing the appellants raised the alleged errors canvassed in the contentions along with two additional alleged errors.

12. First, the appellants complained that Phipps FM “gave much consideration to the arguments put forward by the lawyers for the Minister [and that] this was very unreasonable [and] that our case was not considered properly”.  In so far as it amounts to a complaint that Phipps FM acted in bad faith or was biased (or may be reasonably apprehended to have been biased), that complaint lacks any foundation whatsoever.

13. Secondly, the appellants complained that the Tribunal had not provided them, or allowed them an opportunity to comment on, country information.  They contended that those failures amounted to a failure to accord them natural justice.  That complaint must be rejected.  On no reading of the Tribunal’s reasons can it be said that it relied on country information in coming to its decision.  Indeed, those reasons do not even set out any country information.  The Tribunal’s decision was largely based on findings as to the appellants’ credit.

14. The appeal must be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:             26 October 2005

Counsel for the Appellants:	The Appellants appeared in person
Counsel for the Respondent:	H Riley
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	3 October 2005
Date of Judgment:	26 October 2005