WAJE v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1062

FEDERAL COURT OF AUSTRALIA

WAJE v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1062

WAJE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W142 of 2003

CARR J
3 OCTOBER 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W142 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	WAJE Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	3 OCTOBER 2003
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant 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
WESTERN AUSTRALIA DISTRICT REGISTRY	W142 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	WAJE Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGE:	CARR J
DATE:	3 OCTOBER 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a decision of a Federal Magistrate given on 18 June 2003. His Honour’s decision was to dismiss the appellant’s application for an order of review of a decision of the Refugee Review Tribunal, made on 31 December 2002, to affirm a decision of a delegate of the respondent not to grant the appellant a protection visa. The Chief Justice, acting under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) directed that the appeal be heard by a single judge.

   FACTUAL AND PROCEDURAL BACKGROUND

2. The appellant is a citizen of Sri Lanka who was born on 26 November 1978.  He arrived on the Cocos (Keeling) Islands on 15 September 2001 which were excised from Australia’s migration zone on 17 September 2001 under the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth). He made claims for asylum which were considered in accordance with procedures applying to arrivals in areas excised from the migration zone. This included a refugee status assessment and a review of the initial decision that the appellant was not a refugee.

3. In August 2002 the appellant was transferred to the Australian mainland.  On 19 September 2002 the appellant applied for a protection visa.  On 13 November 2002 a delegate of the respondent refused to grant that visa.  On 19 November 2002 the appellant sought review of that decision by the Refugee Review Tribunal which conducted a hearing on 20 December 2002. 

   THE APPELLANT’S CLAIMS

4. The appellant’s claims were as follows.  From about 1996 to 1998 he had been involved with the United National Party (“UNP”) Youth Group.  He joined the UNP in 1998.  His family had long supported that party.  His family was friendly with Mr Joseph Michael (also referred to as Joseph Michael Perera) a UNP Member of Parliament and a former minister, who had helped the appellant.  The appellant had been “second to the President” of the Youth Group and carried out various activities in that role.

5. Nothing had happened to the appellant until October 2000 when, during the general election campaign for the National Parliament, he was putting up posters one night with some others.  A jeep pulled up with about ten armed people in it.  The appellant believed that these people were supporters of the Peoples Alliance (“PA”) Member of Parliament.  They tied the hands of the appellant and his colleagues, hung them from a tree and hit them.  They were warned that if they kept working for the UNP they would be killed.  The appellant and his colleagues said that they would not work for the UNP again.  On the advice of his father he then left Sri Lanka for Kuwait where he worked as a fisherman for six months. 

6. On 30 July 2001, the appellant returned to Sri Lanka and went straight into hiding.  Three days after returning from Kuwait an organiser in Mr Michael’s office had brought him a letter at his parents’ home asking him to go to a meeting.  He had assisted in putting up posters for a rally which was attended by about 100 people.  At the rally a vehicle stopped along side and ten to fifteen people attacked those taking part in the rally.  They were armed thugs who said they would kill the appellant.  He believed that they were “with the PA”.  He had later learned that they were associates of the PA Member of Parliament.  He escaped and hid in a furniture store (with the help of the owner) where he had previously worked.  The owner took the appellant home the following week.  His brother had been told by some of his [the appellant’s] friends that PA henchmen were still looking for him and wanted to kill him because they knew he was a party organiser.  One of the young people involved in the rally, who was also an organiser, had been taken away and not heard of since.  The appellant stayed at his brother’s house for about a month before departing for Australia. 

7. The appellant claimed that since he has been in Australia he had learned from his family that PA people had been looking for him and threatening to kill him if they found him.  They regarded him as a political enemy.  The police would not protect him because they were corrupt. 

8. The appellant submitted to the Tribunal certain letters from his brother, his sister and from Mr Michael. 

9. The appellant asserted that there was a real chance that he would face harm if returned to Sri Lanka because of his past association with the UNP.  It would not be reasonable, so he claimed, to relocate and live in another part of Sri Lanka because the PA control the security forces and he would not be able to receive effective protection anywhere. 

   THE TRIBUNAL’S FINDINGS AND REASONS

10. The Tribunal reviewed independent country information about Sri Lanka.  It then stated that it accepted the appellant’s account of where he had lived and worked and that he had some low level involvement in UNP activities.  It did not accept the appellant’s evidence that he had any leadership role at all with the party such as that described in the letter from Mr Joseph Michael which had been submitted to the Tribunal.  It gave its reasons for that conclusion. 

11. The Tribunal accepted that the appellant was assaulted in October 2000 but said that it was not satisfied that the incident was of a character so as to constitute persecution.  It said that it did not consider that the evidence indicated that the appellant suffered serious harm. 

12. As to the incident in August 2001, the Tribunal said that it found the appellant’s evidence about the rally and his involvement in it to be “unconvincing”, but that even if he was involved and was hit in the mêlée, the Tribunal did not consider that the evidence indicated that he suffered serious harm as a consequence. 

13. The Tribunal said that it was not satisfied that PA people had come looking for him or that they still did.  It stated that it did not believe that the nature and extent of his involvement was of a kind to sustain such extended interest.  It gave its reasons for reaching that conclusion, including the appellant’s evidence that nothing happened to him before October 2000 notwithstanding his involvement in politics for more than two years before that. 

14. The Tribunal stated that it did not consider that the evidence indicated that the appellant had suffered harm amounting to persecution in the past because of his political involvement even if the two episodes he described were considered cumulatively. 

15. The Tribunal then considered whether there was a real chance that the appellant could face persecution if he were returned to Sri Lanka in the reasonably foreseeable future.  It concluded that the chance of the appellant coming to serious harm upon return to Sri Lanka because of his past involvement with the UNP was remote.  This was because the appellant’s involvement was not of a kind which would lead him to face serious harm.  It gave its reasons for that assessment. 

16. The Tribunal accepted that the appellant had left Sri Lanka without passing through the normal official exit checks and without his passport.  He might therefore face questioning upon return about his travel.  However, the Tribunal stated that it was not satisfied that any consequences for the appellant would occur because of any Convention reasons.  It did not consider that the evidence indicated that he would be seen to have a political opinion which could lead the authorities to take an adverse interest in him.  The Tribunal did not consider that the appellant’s circumstances suggested that he could suffer disproportionate or discriminatory punishment for a Convention reason if he were charged with an offence in relation to his travel. 

17. The Tribunal concluded that it was not satisfied that there was a real chance that the appellant would face harm amounting to persecution for a Convention reason if he were to return to Sri Lanka. 

    THE DECISION AT FIRST INSTANCE

18. The appellant was not represented in the proceedings before the Federal Magistrates Court.  His grounds of review, in summary, were as follows: 

    ·     error of law, being an error involving an incorrect interpretation of the term “well-founded fear”;

    ·     failure to apply the correct test and principles of relevant law in arriving at its decision, falling into error by taking into consideration irrelevant matters and failing to take into account relevant matters thereby committing jurisdictional error;

    ·     the Tribunal wrongly understood the appellant’s claims and its rejection of the material claims was unreasonable irrational and illogical;

    ·     the Tribunal had not complied with “statutory rules”; and

    ·     denial of procedural fairness.

19. His Honour examined the Tribunal’s reasons in some detail and summarised its conclusions. 

20. His Honour correctly observed that, under the principles explained in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, he had jurisdiction, notwithstanding the privative clause provisions of the Migration Act 1958 (Cth) (“the Act”) to review the Tribunal’s decision for jurisdictional error and, in particular, error arising by reason of a denial of procedural fairness (as claimed by the appellant).

21. His Honour noted that the Tribunal had decided not to accept the appellant’s account of some of the events leading to his departure from Sri Lanka.  In making that finding, so his Honour held, the Tribunal acted within its jurisdiction.  

22. His Honour said that having read the Tribunal’s decision carefully, he was unable to identify any basis upon which it could be interfered with.  He gave his opinion that it was apparent from an examination of the Tribunal’s decision that it gave careful consideration to the appellant’s assertions and concerns.  There was no apparent breach of procedural fairness which could amount to jurisdictional error. 

23. The learned Federal Magistrate dealt briefly with the various grounds relied upon by the appellant and held that they had not been sustained.  In particular, the Tribunal had not incorrectly interpreted the term “well-founded fear” and had not erred in the various respects claimed in the grounds raised by the appellant. 

24. His Honour then applied the Hickman principles [R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598] noting that the Tribunal acted in good faith, its decision was reasonably capable of reference to the power given to it, its decision related to the subject matter of the Act and there was no suggestion that any relevant constitutional limits had been exceeded. He said that there could be no suggestion of bias (whether actual or apprehended).

    THE APPEAL AND MY REASONING

25. The appellant’s grounds of appeal were essentially the same as the grounds of review at first instance.  There was one additional ground, to the effect that the Magistrate did not consider the errors which had been made. 

26. The appellant was unrepresented at the appeal.  His submissions were as follows.  First, that some of his evidence at the initial stages was not correct.  He did not provide any details of this.  Secondly, that in the past two months he had been able to obtain more information and documents to place before the Tribunal.  As I explained to him, the Court had to decide his appeal on the documents which were before the Tribunal, but he could submit those documents to the respondent for further consideration of his claim to refugee status.  Then there was a complaint that “at some stage interpretation of what I have said was not properly implied in the context”.  This was a complaint, without any particulars, of interpretation.  A complaint unsupported by any evidence and one which had not been made at first instance.  In my opinion, nothing raised by the appellant this morning was relevant to the disposition of this appeal.

27. I have reviewed the Tribunal’s reasons and those of the Federal Magistrate.  It might be debateable whether the consequences to the appellant of the two incidents upon which he relied did not amount to serious harm (as the Tribunal found).  But that was, in my opinion, a factual finding which it was open to the Tribunal to make.

28. In my view, his Honour was correct in finding no jurisdictional error or error of law which would prevent the Tribunal’s decision from being made under the Act. Nothing in the materials before the Court indicates that the Tribunal fell into any reviewable error.

29. Accordingly the appeal must be dismissed with costs.  

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Associate:

Dated:             3 October 2003

The Appellant appeared in person
Counsel for the Respondent:	Ms L B Price
Solicitors for the Respondent:	Messrs Blake Dawson Waldron
Date of Hearing:	3 October 2003
Date of Judgment:	3 October 2003