WAJP v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1393

FEDERAL COURT OF AUSTRALIA

WAJP v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1393

WAJP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W139 OF 2003

CARR J
28 NOVEMBER 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W139 OF 2003

BETWEEN:	WAJP Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	28 NOVEMBER 2003
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the 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
WESTERN AUSTRALIA DISTRICT REGISTRY	W139 OF 2003

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

JUDGE:	CARR J
DATE:	28 NOVEMBER 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a decision of a Federal Magistrate given on 12 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 6 February 2003, 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 1 July 1980.  He arrived in Australia on 15 September 2001.  He had previously been detained on Cocos (Keeling) Island where he had landed by boat.  On 26 September 2002 he lodged an application 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 24 January 2003. 

   THE APPELLANT’S CLAIMS

3. The appellant’s claims were as follows.  In 1995 while still at school he became associated with a man called Pulle, who was 60 years of age.  Pulle was, so the appellant claimed, a member of a “political set-up” which educated people about politics.  He looked after the difficulties of villagers and made representations to the Sri Lankan Government.  Pulle was not a member of Parliament, but a village representative who reported problems to the local member of Parliament, a Mr Festus Perera.  Pulle was a member of the United National Party (“UNP”).  During election times Pulle organised meetings, helped to distribute leaflets and things of that nature.  In the last two years of his schooling the appellant helped with those activities.  This work was within the appellant’s village and adjacent villages.  The appellant said that he posted notices, went from house to house to educate people and gave them literature and how to vote cards. 

4. In July 2001 the appellant had gone with others to a rally in Colombo which had been dispersed by police.  When the appellant returned home, people from the Peoples Alliance Party (“PA”) came to his house with guns, and in large numbers, challenging his family members and threatening his mother.  He left the area and two days later his mother told him that people had been coming to look for him every day.  He then left Sri Lanka. 

5. If returned to Sri Lanka he feared that he would be killed by his political opponents.  The appellant submitted to the Tribunal letters from Mr Perera and a priest. 

   THE TRIBUNAL’S FINDINGS AND REASONS

6. The Tribunal made some fairly strong credibility findings against the appellant.  It did not accept that Pulle had any connection with the UNP.  It gave its reasons for that conclusion.  Nor did it accept that the appellant had participated in any political activities other than to attend meetings or election rallies.  The Tribunal also did not accept that the appellant organised meetings or canvassed for support or directly helped with political campaigns in any other way.  Again it gave its reasons for reaching that conclusion. 

7. The Tribunal did not accept that the appellant had been threatened by PA supporters.  It said that his evidence during the interview with the respondent’s delegate was extremely confused on that point. 

8. The Tribunal reviewed independent country information about Sri Lanka.  It stated that it did not accept that UNP members or supporters or even campaign workers faced a real chance of persecution in Sri Lanka within the meaning of the Convention.  It gave its reasons.

9. Finally, the Tribunal did not accept that the appellant attended the rally in July 2001.  It noted that his description of the colours carried or worn by those at the rally was contradicted by country information.  The country information was to the effect that the organisers of the rally had decided that participants would dress in black and white rather than the traditional colours of the various political parties.  The Tribunal said that even if the appellant had attended the rally, it would not accept that he had been threatened.  This was because country information did not support the claim that there was any retribution after the July 2001 rally.

10. The Tribunal gave no weight to the letter from Mr Perera.  The Tribunal concluded that it was not satisfied that the appellant had a well-founded fear of persecution in Sri Lanka for reasons of his political opinion.  Accordingly it was not satisfied that the appellant was a person to whom Australia had protection obligations.

    THE DECISION AT FIRST INSTANCE

11. The appellant was not represented in the proceedings before the Federal Magistrates Court.  His grounds of review, in summary, were based on the following alleged errors on the Tribunal’s part:  

    ·     failure to apply the correct test and principles of relevant law in arriving at its decision;

    ·     falling into error in taking into consideration irrelevant matters [and in failing to take into account matters] that were relevant to reaching its decision and therefore committing jurisdictional error;

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

    ·     wrongly understanding most of the appellant’s claims; 

    ·     reasoning for the rejection of the appellant’s material claims was unreasonable irrational and illogical;

    ·     non-compliance with “statutory rules”; and

    ·     denial of procedural fairness.

12. 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).

13. 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. 

14. 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”.

15. 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 legislation and there could be no suggestion that any relevant constitutional limits had been exceeded. His Honour said that there could be no suggestion of bias (whether actual or apprehended).

    THE APPEAL AND MY REASONING

16. The appellant’s grounds of appeal were essentially the same as the grounds of review at first instance.  There was some difference in the wording of those grounds.  There was also an additional ground, to the effect that the Magistrate did not consider the errors which had been made by the Tribunal. 

17. The appellant was unrepresented at the appeal.  He made short oral submissions to the Court to the effect that he had explained his problems, several times, both to officers of the respondent’s Department and to the Tribunal.  He asked how can he prove his case, was he to bring the person who was going to kill him to give evidence or to tender a letter from him?  The appellant referred to the fact that he had been in a camp for two years and two months, a camp where he said people go mad.  He said that if he was returned to his country he would be killed.  He made other like submissions, none of which, in my view, have any bearing on this appeal. 

18. I have reviewed the Tribunal’s reasons and those of the Federal Magistrate.  

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

20. Accordingly the appeal must be dismissed with costs.  

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Associate:

Dated:            1 December 2003

The Appellant appeared in person
Counsel for the Respondent:	Mr J D Allanson
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 October, 28 November 2003
Date of Judgment:	28 November 2003