Wijetunga v Minister for Immigration and Multicultural Affairs

[2002] FCA 857

FEDERAL COURT OF AUSTRALIA

Wijetunga v Minister for Immigration & Multicultural Affairs [2002] FCA 857

MIGRATION - protection visa - applicant claimed fear of persecution and violence at the hands of a particular person - no mention of that person in reasons of tribunal - tribunal referred to all allegations relating to that person, but did not mention that person in its reasons – whether tribunal failed to consider case put by applicant - whether jurisdictional error – mistake of fact by tribunal about evidence given by applicant – whether decision based on particular fact

Migration Act 1958 (Cth) ss 5(1), 36, 420, 476(1), 476(4)

Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 applied
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 applied

LOKUPITUMPAGE DON GAMINI WIJETUNGA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 1001 of 2001

GRAY J
5 JULY 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1001 of 2001

BETWEEN:	LOKUPITUMPAGE DON GAMINI WIJETUNGA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	5 JULY 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the proceeding.

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	V 1001 of 2001

BETWEEN:	LOKUPITUMPAGE DON GAMINI WIJETUNGA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GRAY J
DATE:	5 JULY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The nature of the proceeding

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), to refuse to grant to the applicant a protection visa, pursuant to the Migration Act 1958 (Cth) (“the Migration Act”).

2. Section 36 of the Migration Act provides that there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for the visa be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The term “Refugees Convention” is defined in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The term “Refugees Protocol” is similarly defined to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these instruments, taken together, the “Convention”.

   
   

   For present purposes, it is sufficient to note that the effect of the Convention is that Australia has protection obligations to a person who:

   “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.

3. The applicant is a citizen of Sri Lanka.  He arrived in Australia on 27 June 1998 on a tourist (short stay) visa, having spent six years in Fiji.  On 13 July 1998, he lodged an application for a protection visa.  On 4 December 1998, a delegate of the Minister made a decision refusing the application.  The applicant sought review of that decision by the Tribunal.  On 10 January 2001, the Tribunal affirmed the decision of the delegate of the Minister.  The applicant applied to the Court for judicial review of the Tribunal’s decision.  By consent, the Court made orders setting aside the Tribunal’s decision and referring the matter to the Tribunal for further consideration. 

4. The matter was then reheard by the Tribunal, constituted by a different member.  On 31 July 2001, the Tribunal published its written decision and reasons for decision.  Its decision was again to affirm the decision of the delegate of the Minister not to grant a protection visa.  In this proceeding, the applicant seeks judicial review of this second decision of the Tribunal. 

5. Because of the age of the matter, it is necessary to deal with it by reference to the provisions of the Migration Act as they stood prior to significant amendments that came into operation on 2 October 2001.

   The applicant’s claims

6. The applicant claimed to have a well-founded fear of being persecuted, if he should return to Sri Lanka, by reason of his political opinion.  He said that he was the secretary of his local branch of the United National Party (“UNP”) from 1988 - 1989.  In subsequent years, he retained close working relations with the UNP, especially through his community work in consulting residents and helping to arrange for the provision of water, electricity, toilets and a range of other local amenities and services. 

7. The applicant said that he left Sri Lanka in 1992 because of his fear of the Janatha Vimukthi Peramuna (“JVP”), which had been responsible for considerable violence.  The applicant claimed that members of the JVP were then aligned with the People’s Alliance (“PA”).  The JVP suspected the applicant of reporting some of its members to the authorities, of being instrumental in attempts to arrest some of them and of being responsible for their ultimate disappearance.  The suspicion arose because of a crackdown on the JVP by the UNP Government.

8. The applicant said that he had received death threats from the JVP.  He said that, while in Sri Lanka, he was abducted but escaped.  The following morning, he saw the body of a colleague whom he assumed had been killed by his captors, who he thought were JVP members.  Some of the people who threatened him were occupying significant positions in Government.  His father had been involved in a dispute over land that was sold by the brother of a member of Parliament who was part of a network of persons holding grievances against the applicant.

9. The applicant claimed that he would be targeted by members and supporters of the PA because of his identification with the UNP.  He said that his house was stoned in 1988 by political opponents and that his mother had been denied a welfare grant, to which she was entitled, possibly because of the family’s support of the UNP.

10. The applicant also said that he had learned from a friend in early 1998 that a contract had been taken out on his (the applicant’s) life.  While he was living in Fiji, he received anonymous threatening letters.  He claimed that his address was discovered after his mother’s letterbox was smashed, possibly by persons affected by alcohol, and his political opponents

    
    

    removed correspondence from the letterbox.  The applicant referred to considerable political violence in Sri Lanka, much of it not reported in the press.

    The Tribunal’s reasons

11. The Tribunal made a number of findings of fact favourable to the applicant.  It accepted that:

    ·    The applicant was associated with the UNP in the ways he claimed.

    ·    

    The applicant was fearful of the JVP, which carried out a series of violent attacks in

    
    

    the period just prior to his departure for Fiji.

    ·    

    Some former members of the JVP might now be politically aligned with PA members in

    
    

    the applicant’s local area and perhaps elsewhere.

    ·    The applicant might have been abducted on one occasion by JVP supporters.

    ·    

    His father was involved in a land dispute with persons who might bear, or associate with

    
    

    others who bear, grudges against the applicant.

    ·    

    The applicant might have had his house stoned during 1988, perhaps by opponents of the

    
    

    UNP.

    ·    

    The applicant’s mother had been denied a welfare grant to which she believed she was

    
    

    entitled.

12. In some respects, the Tribunal did not accept the applicant’s claims.  It referred to his voluntary return to Sri Lanka in 1994 and again in 1996, without encountering harm.  With respect to this it said:

    “The Tribunal does not accept that the applicant was able to avoid harm during his return visits due to keeping a low profile.  He met with several people during his visits and some of his evidence at the hearing indicates that political opponents were well aware of his presence in the country.  While accepting that the applicant felt a need to return to Sri Lanka in 1996 following his father’s death he had no compelling reason to return in 1994.  The fact that he did so indicates he did not by then have a subjective fear for his welfare, and the Tribunal finds accordingly.”

13. The Tribunal took the view that, because the death threats were anonymous, it was mere speculation that some of those who made the threats were now in prominent positions in government.  Because the applicant did not know the relevant criteria for the welfare grant denied to his mother, and because of other evidence concerning general even-handedness in public policy by the PA Government, the Tribunal concluded that any denial of a grant to the applicant’s mother did not indicate a real chance of persecution of the applicant for any Convention reason.

14. As to the alleged death threat in 1998, the Tribunal noted that the applicant did not know by whom the threat was made.  He had not retained the threatening letter or letters.  The Tribunal took the view that his evidence as to how the alleged writer or writers discovered his address in Fiji was improbable.  The Tribunal did not accept that any threatening letters were written to the applicant in 1998 or thereabouts, signalling an intention to persecute him for any Convention reason.

15. The Tribunal decided the matter against the applicant for several reasons.  Perhaps foremost, it relied on a substantial body of material supplied by the Department of Foreign Affairs and Trade, and material published from other sources, to find that the JVP had been destroyed as a military force.  It had re-emerged politically, but the prospect of it again emerging as a potent military force was remote.  On the basis of evidence as to the JVP’s recent political activities, the Tribunal concluded that any fear by the applicant of persecution at the hands of the JVP was not well-founded.

16. The Tribunal also gave weight to the general absence of harm to the applicant while he resided in Sri Lanka and to his voluntary return to Sri Lanka in 1994 and 1996 without encountering harm.  Again, it gave weight to evidence from other sources concerning the even-handedness in public policy by the PA Government and the fact that police protection is afforded to all citizens, regardless of their political allegiance, in Sri Lanka.  It found that there is some evidence of random violence, particularly in the context of political campaigns, but no evidence of continuing targeted violence, save for some districts around the time of

    
    

    local elections.  The authorities are generally willing to take action in relation to complaints against PA and UNP supporters involved in alleged criminality.

17. The Tribunal said:

    “In view of country information cited above and the actual political profile of the applicant, the Tribunal finds that he would not now or in the foreseeable future face a real chance of persecution by reason of his association with the UNP.  The Tribunal finds there is not a real chance of the applicant facing persecution from PA supporters by reason of his political allegiance.  Additionally, there is no credible basis for a conclusion that he would not, in such circumstances, be able to call upon the State to afford him effective protection.”

18. The Tribunal also followed authority to the effect that acts of violence between members of political parties that were part of a culture of political life in a country do not give rise to persecution, because they lack the requisite selective or discriminatory quality.

    The grounds of the application for judicial review

19. In his application for judicial review, filed with the Court, the applicant invoked three of the grounds specified in s 476(1) of the Migration Act. They were the ground that procedures that were required by the Migration Act or the Migration Regulations to be observed in connection with the making of the decision were not observed (par (a)), that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal (par (e)) and that there was no evidence or other material to justify the making of the decision (par (g)). There was also an attempt to rely on the allegation that the Tribunal did not act according to substantial justice and the merits of the case in accordance with s 420 of the Migration Act. Since the decision of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611, that ground is not available. There was an allegation that the Tribunal failed to afford the applicant an adequate and effective hearing of his claims and denied him an opportunity to be assisted and represented by his migration adviser, despite a request for postponement on medical grounds. The manner in which the grounds were particularised suggests that the applicant wished to complain that the Tribunal had failed to give adequate consideration to various factual matters, which the applicant thought should have been given more weight.

20. Prior to the hearing of the application for judicial review, the applicant filed contentions of fact and law.  Those contentions were signed by counsel.  The respondent also filed contentions of fact and law and the applicant filed further contentions in reply, also signed by counsel.  At the hearing, the applicant appeared without legal representation.  Through an interpreter in the Sinhalese language, he indicated to the Court his desire to rely on the written contentions that had been filed.  These submissions raised two matters of significance. 

21. The first of these was that the Tribunal had made a jurisdictional error of the kind identified by McHugh, Gummow and Hayne JJ in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 at [75] and [83] by failing to deal with a major aspect of the applicant’s case. This major aspect was that the applicant had said that he feared persecution and violence at the hands of a particular person, designated as “S”, who had been a prominent figure in the JVP but had become a senior official in the PA Government. It was S who blamed the applicant for the deaths of S’s relatives at the hands of police. It was S who had been one of the applicant’s abductors and had killed a UNP activist and it was S who had made threats to kill the applicant on two occasions. The Tribunal did not mention S, but proceeded on the basis that the threats against the applicant were anonymous. In relying on information from other sources, the Tribunal treated the applicant as someone who had mere allegiance to, or association with, the UNP, but ignored the specific claims about the applicant’s fear of S. Similarly, in its findings as to the availability of state protection, the Tribunal was not considering the specific circumstances of the applicant. It considered effective protection in the context of violence between supporters of the PA and supporters of the UNP, but not the question of the protection of someone subject to specific threats by S.

22. The second ground of significance raised by the applicant’s contentions related to the ground specified in s 476(1)(g) of the Migration Act, that there was no evidence or other material to justify the making of the decision. This ground is confined by s 476(4) to two specific situations, the second of which is the only possibly relevant one. It is that the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist (see s 476(4)(b) of the Migration Act). In a passage from its reasons for decision, quoted above, the Tribunal expressed a finding that, during the applicant’s return visits to Sri Lanka in 1994 and 1996, “some of his evidence at the hearing indicates that political opponents were well aware of his presence in the country.” In fact, an examination of the transcript of the hearing before the Tribunal reveals that the applicant said no such thing. His evidence was that he had not stayed at his family home but at the home of a friend in 1994 and of another friend in 1996. He said he obtained a promise from relatives who visited him in 1994 not to tell anyone else he was in Sri Lanka. The Tribunal put to the applicant that if he had received threatening telephone calls while on these visits, it would follow that people were aware of his presence and where he lived and would have been able to take action against him. The applicant responded that he had not had threatening phone calls during the visit, but earlier, before he left to go to Fiji. It was said that the erroneous finding of the Tribunal as to the knowledge of the applicant’s presence by political opponents was a non-existent fact on which the decision of the Tribunal was based. It led to the Tribunal’s reliance on the fact that the applicant had not encountered harm on his voluntary return to Sri Lanka on two occasions.

    The claim relating to S

23. It is true that the Tribunal did not mention S, by his designated initial or by any specific description of him, in its reasons for decision.  It is also true, as counsel for the respondent pointed out, that the applicant did not mention S in the course of the hearing before the Tribunal.  This is not necessarily fatal to the applicant’s case.  He had given to the Tribunal in the first hearing an account of his relations with S, which found its way into the written reasons for the first decision of the Tribunal, which was subsequently set aside by consent.  The Tribunal member who conducted the second hearing plainly had this information before him.  The hearing was conducted largely on the basis of the Tribunal

    
    

    member questioning the applicant about subjects of the tribunal member’s choice.  The Tribunal was certainly bound to consider the issue of S.

24. In fact, as its reasons for decision show, the Tribunal did consider the applicant’s case concerning S.  As part of its summary of the applicant’s claims, the Tribunal summarised all that he had said about S.  It referred to members of the JVP, now aligned with the PA, in the applicant’s local area.  It referred to the suspicion that the applicant had reported some JVP members to the authorities, was instrumental in attempts to arrest some of them and was held responsible for their ultimate disappearance.  It referred to the applicant’s claim that he received death threats from the JVP while in Sri Lanka.  It referred to his claim of his abduction and the murder of a colleague.  The only thing the Tribunal did not do was to mention S by the designation given to him in the reasons for the first decision.

25. It is clear that the Tribunal did not ignore the applicant’s claims about S.  It dealt with them as a significant part of his case.  It accepted most, if not all, of the allegations the applicant made.  Notwithstanding those allegations, it found that the applicant did not have a well-founded fear of persecution for a Convention reason.  This finding was open to the Tribunal on the evidence before it.  The Tribunal’s failure to make any specific mention of S does not mean that it made a jurisdictional error by failing to consider the case put by the applicant.

    The Tribunal’s mistake of fact

26. There is no doubt that the Tribunal made a finding of fact not available to it on the evidence.  That finding was that the applicant’s political opponents were well aware of his presence in Sri Lanka during his two return visits.  There was no evidence to justify this finding of fact.  Indeed, it was contrary to the evidence.

1. Notwithstanding this mistake, the applicant is unable to make out the ground specified in s 476(1)(g) of the Migration Act, as confined by subs (4)(b). That ground cannot be made out unless it can be shown that the Tribunal “based” its decision on the existence of the particular fact. In the present case, the Tribunal undoubtedly relied on the finding of fact it made, but it did not in any sense base its decision on that fact. The mistaken finding of fact was not fundamental to the Tribunal’s reasoning. It was not part of a chain of reasoning leading to the conclusion the Tribunal reached. Nor was it an essential finding, without which the decision could not stand. It was merely one of several aspects of the Tribunal’s reasoning leading to its ultimate conclusion that the applicant lacked a well-founded fear of persecution for a Convention reason. As I have said, the decision was based to a large extent on the decline of the JVP as a military force, the commitment of the PA Government to the prevention of political violence and the availability of State protection in the event of criminal acts. None of these considerations had anything to do with the mistaken finding of fact.

2. It may seem odd that the Court can identify an error of fact on the part of the Tribunal and yet uphold the Tribunal’s decision. This is because the Migration Act commits to the Tribunal the responsibility for finding the facts. A decision of the Tribunal is reviewable by the Court only on narrow grounds. As I have said, in relation to errors of fact, those grounds are limited to the ground specified in s 476(1)(g), as confined by subs (4). In the present case, despite the identified error of fact, the applicant is unable to make out that ground.

   Conclusion

3. For these reasons, the applicant has failed to make out any of the grounds specified in s 476(1) of the Migration Act. The application for judicial review must be dismissed. The ordinary rule, that costs follow the event, should apply and the applicant should be ordered to pay the Minister’s costs of the proceeding.

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

Associate:

Dated:             5 July 2002

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	C Horan
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	18 June 2002
Date of Judgment:	5 July 2002