WAJI v Minister for Immigration
[2003] FMCA 286
•6 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAJI v MINISTER FOR IMMIGRATION | [2003] FMCA 286 |
| MIGRATION – Application for review of decision of the Refugee Review Tribunal – applicant citizen of Sri Lanka – application dismissed – no jurisdictional error – Tribunal found applicant not a credible witness. |
Migration Act 1958 (Cth), s.474
Migration Amendment (Excision from Migration Zone) Act 2001(Cth)
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 74
Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
WACK v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 122
| Applicant: | WAJI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | WZ 48 of 2003 |
| Delivered on: | 6 August 2003 |
| Delivered at: | Melbourne (via video link to Perth) |
| Hearing date: | 17 July 2003 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Mr Allanson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
THAT the Application be dismissed.
THAT the Applicant pay the Respondent's costs fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
WZ 48 of 2003
| WAJI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment relates to a decision of the Refugee Review Tribunal ("the Tribunal") made on 10 January 2003. The applicant who is a citizen of Sri Lanka arrived on the Cocos (Keeling) Islands on
15 September 2001. The Cocos (Keeling) Islands were excised from Australia 's migration zone on 17 September 2001 under the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth). The applicant's claims for asylum were considered in accordance with procedures applying to arrivals excised from the migration zone. His claims for asylum were considered in accordance and would present as applying to arrivals in areas excised from the migration zone. This included a refugee status assessment and a review of the judicial decision that the applicant was not a refugee.
On 19 September 2002 he lodged a fresh application, this one from the Australian mainland to which he was transferred in August 2002, for a Protection (class ZA) visa with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") under the Migration Act 1958 (Cth) ("the Act"). On 13 November 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant a protection visa and on 19 November 2002 the applicant applied for a review of that decision to the Tribunal. On 10 January 2003 the Tribunal affirmed the delegate's decision not to grant a protection visa.
By application dated 17 January 2003 and filed on 23 January 2003 the applicant made application under s.39B of the Judiciary Act 1903 seeking prerogative relief to quash the decision of the Tribunal and request a new hearing. The application filed in the Federal Court of Australia was transferred to this Court by order of French J, on 12 March 2003.
Background
The applicant is a citizen of Sri Lanka, is Singhalese and a Roman Catholic. His family were supporters of the United National Party (UNP) in Sri Lanka and his step-father had been a friend of a UNP candidate. He obtained a job working for the candidate, Mr Senanyaka. He worked for him leading up to the elections and his work involved organising meetings, driving him to meetings and acting as a bodyguard, putting up election posters and running messages.
He claimed that the People's Alliance (PA) supporters knew of his work with Mr Senanyaka and when putting up posters PA people would come armed with pistols and threatened him. He said this occurred in June 2000 and that when he went to organise stages he had been assaulted also in May or June 2000.
The applicant said that on 19 July 2001 he was at a UNP rally in Colombo which had been dispersed by the police using tear gas and rubber bullets. The applicant was injured in the head by a rubber bullet.
Following the rally he feared for his safety from supporters of the PA who were looking for people who attended the rally, including the applicant. The applicant asserts that his mother told him to stay away because PA supporters were coming to the area looking for such people.
The applicant asserted that he went to rent a room elsewhere and that one day when he had gone out he saw a jeep parked opposite where he was staying and that he was afraid and did not return to his home. His landlord told him that people had been looking for him. He asserted that while he was "in hiding" his step-father went to make a report to the police about people who were threatening him and was told that if he was involved in politics he should sort it out himself.
He told the Tribunal that he had thought that the people looking for him came because he and others had fought against the police and that one person who had been involved was taken and killed. He said that the PA people were also seeking Mr Senanyaka but that he was protected by guards and he further said that two of his guards had been killed a few weeks after the rally.
The applicant then paid David Raja to arrange his passage to Australia. He had come across David Raja in the course of his spare parts work and knew he was sending people to Australia.
The applicant asserted that he would be killed by members of the PA if he were to return to Sri Lanka and that his wife had told him that people had come looking for him and had tried to search the house and had assaulted her. She had gone to stay at his aunt's house for safety and said that thugs were still looking for him.
The applicant told the Tribunal that the police had wanted him to give a statement about people involved in arranging his passage to Australia and he had done so. He said that David Raja's son had been imprisoned in Australia and that he had been told by all his friends who had been deported from Australia and returned to Sri Lanka that people who gave statements would not be allowed to return to Sri Lanka.
The applicant provided the Tribunal with a copy of a letter from Mr Senanyaka explaining he had known the applicant since childhood and that he was an ardent supporter of the UNP and subjected to "endless harassment by our political opponents." He indicated the applicant was a close political associate and that he did not feel that his support was sufficient to protect him against threats aimed at him. The applicant also provided copies of newspaper articles which were not all legible but which the Tribunal noted concerned the rally of 19 July 2001.
The applicant's advisers lodged a written submission with the Tribunal. In written submissions the counsel for the Minister summarises these submissions at page 2 of his written submissions and I repeat and adopt that summary. The applicant's previous claims were repeated and following further submissions made:
a)that while the PA were no longer in power in Sri Lanka, the President was from that party and still had far reaching powers including control of the security and armed forces;
b)the PA could still commit politically motivated crimes of violence with impunity due to the control of these forces, and the applicant could not receive effective protection from the police or other authorities;
c)the position of UNP supporters targeted for violence by PA supporters had not changed;
d)there was a strong likelihood that the PA would return to power in Sri Lanka, increasing the applicant's chance of suffering serious harm;
e)relocation was not a viable option for the applicant as he would not be offered effective protection in Sri Lanka.
The Tribunal's conclusion
On 10 January 2003 the Tribunal made a decision affirming the decision of the delegate not to grant a visa. The Tribunal found (Court book 129–144) that the applicant's lack of knowledge of the elections in Sri Lanka was not consistent with his claims of his level of political involvement.
Despite the letter from the candidate, the Tribunal concluded that the applicant was not truthful about the nature and extent of his political involvement. The Tribunal found that his lack of knowledge was surprising if he was as politically involved with Mr Senanyaka as he alleged. In particular the Tribunal did not accept that he had served as one of Mr Senanyaka's bodyguards from 1998 until 2000. Given that the Tribunal did not accept the association with the UNP claimed by the applicant, it followed that it did not accept that he was, as a consequence of his political activity, harassed, beaten and threatened by PA supporters or their associates in 2000 as he said he had been.
The Tribunal accepted that the applicant supported the UNP and that it was possible that he was one of thousands who sought to attend the rally on 19 July 2001. The Tribunal accepted that he was involved with fighting and he was hit with a rubber bullet by the police as they acted to break up the gathering. The Tribunal however was not satisfied that he was sought by the PA supporters or thugs acting on their behalf in connection with his participation in the rally, or that he continues to be sought for this reason or because of an involvement with Mr Senanyaka, an involvement which the Tribunal was not satisfied existed as he claimed.
Given the credible evidence before the Tribunal about the nature and extent of his involvement with politics the Tribunal found that it was not credible that PA supporters would sustain an adverse inference in him for this reason for so long as he claimed. The Tribunal did not accept that his mother's house was destroyed or that his wife had been insulted because of his political activity. Accordingly the Tribunal found the applicant had not suffered persecution in the past for reason of his political opinion.
The Tribunal considered the chance of him suffering harm if he returned to Sri Lanka, but concluded that the chance of him coming to serious harm upon return to Sri Lanka because of his involvement with the UNP was remote. And that therefore there was no other than a remote chance of his facing serious harm if he were to again support the UNP upon his return.
The Tribunal also considered the potential for a change of government whereby the PA, rather than the UNP, held the majority of seats in parliament.
Whilst noting that there is a high level of politically motivated violence in Sri Lanka and the capacity and willingness of the police to address incidents of politically motivated violence is often in question. There is a measure of police action even if it was uneven.
The Tribunal also addressed two further claims and:
a)considered that the applicant may face questioning on return for leaving Sri Lanka illegally, but found that would not be on account of a convention reason and that he would not suffer disproportionate or discriminatory punishment for a convention reason if he was charged with some illegality in relation to his travel;
b)considered that the applicant were to face some harm from those involved in his passage to Australia, by reason of giving a statement to the police, that can be a circumstance related to a convention reason.
The applicant's case
In his application to review the decision of the Tribunal the applicant claimed the Tribunal's decision contained a jurisdictional error follows:-
a)the decision involved an error of law, involving incorrect interpretation of the term "well founded fear" in that the Tribunal failed to consider persecution in the "near foreseeable future";
b)the Tribunal failed to apply the correct test and the principles of relevant law in arriving at its decision and took into account irrelevant matters and failed to take into account relevant matters and thereby committed jurisdictional error;
c)the Tribunal wrongly understood most of the applicant's claim and the reasons for rejection were unreasonable, irrational and illogical.
The applicant was unrepresented at the hearing and he did not add to any of the previous submissions made on his behalf but simply asserted that he had proved to the Tribunal everything required of him to establish that he was entitled to a protection visa, and that he remained concerned for his safety if he were returned to Sri Lanka.
Conclusion
Error will not found a review unless it is an error going to the jurisdiction of the Tribunal. An administrative decision which involves jurisdictional error is "regarded in law as no decision at all." It is now established by Plaintiff 157/2002 v Commonwealth of Australia (2003) 195 ALR 24 that s.474 of the Act does not protect a purported decision made as a result of jurisdictional error; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 74; Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82 per Gleeson CJ at 89, per Gaudron and Gummow JJ at 101, per Kirby J at 135 and per Hayne J at 143.
In applying the Act, the Tribunal is required to conduct an objective inquiry into whether the condition precedent for the grant of a visa is established. The Tribunal conducted the inquiry and found it did not accept the applicant's account of the extent of his political involvement in the events leading to his departure. The result was predicated on the basis that the Tribunal did not accept as credible the applicant's version of his political involvement with the UNP and in particular with circumstances which would cause him to have a fear of persecution for a convention reason. The Tribunal also correctly addressed the matters required by the Act and Convention assessing whether there was a real chance the applicant would face persecution by reason of his political opinions or activities because of what occurred before he left, on the country information and found that he would not.
The grounds relied on are expressed only in general and formal terms and none include detail of any errors on the part of the Tribunal. The final ground relied upon invites the Court to enter into a merits review and to come to a different conclusion about the credibility of the applicant from the Tribunal. As the Full Court of the Federal Court said in WACK v Minister for Immigration and Multicultural Affairs (2002) FCAFC 122 at [8]:
"It is for the Tribunal and not for the Federal Court to assess the credibility of the applicant's claims."
In short no ground has been identified in the application to establish jurisdictional error nor on a fair reading of the Tribunal's decision is there any discernible ground on which the Court could find jurisdictional error has occurred or that any of the three conditions in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 apply. For these reasons the application must be dismissed.
I certify that these preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
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