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MIGRATION - Protection visa - whether Tribunal failed to consider essential matter - whether Tribunal should have informed applicant of country information.

VHAS v Minister for Immigration [2004] FMCA 806 (24 November 2004)

VHAS v Minister for Immigration [2004] FMCA 806 (24 November 2004)
Last Updated: 30 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VHAS v MINISTER FOR IMMIGRATION
[2004] FMCA 806




MIGRATION - Protection visa - whether Tribunal failed to consider essential matter - whether Tribunal should have informed applicant of country information.




Judiciary Act 1908, s.39B

Migration Act 1958, (Cth), s.424A

Peko-Wallsend v Minister for Aboriginal Affairs (1985-6) 162 CLR 24, 39-42

Minister for Immigration and Ethnic Affairs v. Wu Shan Liang and others (1996) 185 C.L.R. 259

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

McAuliffe v Secretary of Department of Social Security (1992) 28 ALD 609

VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 573

VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74, at [20]

VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186

Applicant:
VHAS




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MZ 1260 of 2002




Delivered on:


24 November 2004




Delivered at:


Melbourne




Hearing date:


17 September 2003




Judgment of:


Phipps FM




REPRESENTATION

Counsel for the Applicant:


Mr Krohn, pro-bono




Counsel for the Respondent:


Mr Serong




Solicitors for the Respondent:


Blake Dawson Waldron




ORDERS

(1) The Application is dismissed.

(2) The Applicant pay the Respondent's costs fixed at $5,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MZ 1260 of 2002

VHAS



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
Introduction

1. The applicant applies pursuant to s.39B of the Judiciary Act 1908 for review of a decision of the Refugee Review Tribunal.

2. The applicant is a Sinhalese National of Sri Lanka. He arrived in Australia on 22 June 2000 as the holder of a visitor visa. He filed an application for a protection visa on 25 June 2000. A delegate of the respondent refused the application on 1 August 2000. The applicant applied to the Tribunal for a review of the decision on 24 August 2000 and on 19 August 2002, the Tribunal affirmed the decision not to grant a visa to the applicant.

3. The Tribunal originally handed down a decision on 10 May 2002. It became apparent to the Tribunal that the applicant had provided details of a change of address to his agent but that change of address had not been forwarded to the Tribunal and it also became apparent that the applicant's agent had not passed on, to the applicant, an invitation by the Tribunal to attend the hearing of the application. For these reasons, the Tribunal recalled the first decision, conducted a hearing and made a further decision on 19 August 2002.

4. On 30 September 2002, the applicant applied to the Federal Court of Australia for review of the Tribunal's decision. On 9 December 2000, North J. transferred the application to the Federal Magistrates Court.

The applicant's claims

5. The applicant is a businessman. He claimed that he was at risk of persecution at the hands of the Liberation Tigers of Tamil Eelam (the LTTE).

6. He claimed the LTTE would ask for donations of money, and if he refused, they would threaten him and raid his house. He claimed that he used to transport goods between Jaffna and Columbo and Negambo and the LTTE would ask for donations of money. If he refused, they would threaten him and raid his house. He claimed his factory was destroyed in a fire in 1995 after he refused to make a donation.

7. He claimed that his wife worked in a government hospital. He claimed that a medical officer was a Tamil supporter of the LTTE and threatened the applicant when he told him he could not make any more donations. He claimed that the medical officer demanded that he join the Tamil army or face death. He went into hiding and the LTTE visited his house and stabbed his son. His wife, he claimed, was also stabbed.

8. He said he commenced a second business in 1994 with about 50 employees. It was again threatened. He claimed that his house and factory was destroyed by fire started by the LTTE in 1996. He said that his family was threatened. He said that because of fear of his life in Sri Lanka he decided to seek protection in Australia.

9. The applicant claimed he had been a member of the nationalist party, the JVP, which was violently opposed to any concessions to the LTTE. In response to the Tribunal's observation that he would espouse the values of the LTTE and still deal with the LTTE, the applicant said he never told anyone he was a JVP member.

10. The applicant's adviser provided the Tribunal with his opinions on the situation in Sri Lanka. He said that the JVP campaigned violently against concessions to Tamils. He said the LTTE had a non-negotiable demand for an independent state. The government had no intention of granting independence. In response to the Tribunal's observation that the government and the LTTE had struck a deal for peace, the applicant stated that the peace agreement would not last, that the LTTE was still importing arms and that LTTE atrocities were still being perpetrated.

The Tribunal's decision

11. The Tribunal accepted that the applicant was a national of Sri Lanka, ethically Sinhalese and a Roman Catholic. The Tribunal doubted that ethnic Sinhalese people, in the situation of the applicant and his wife, would be constantly approached by Tamils for donations to the LTTE. The Tribunal referred to country information reports which said that it was almost unheard of that a Sinhalese person would assist the LTTE or be approached to assist the LTTE. The Tribunal noted that the applicant claimed he lived in the North and was able to successfully operate businesses in the North and in and around Columbo. The Tribunal said that given the applicant had traded in areas that were controlled by the LTTE, the Tribunal accepted that he paid the LTTE for the purpose of permitting him to trade in those areas. The Tribunal was satisfied that payment to the LTTE was the cost of doing business in its area.

12. The Tribunal found some of the applicant's claims implausible. It found it implausible that the LTTE would demand that the applicant join the organisation in lieu of paying money. It said that his description of Tamil Tigers openly walking through Negambo or Kurunegala while armed was contrary to well-documented information regarding the oppressively stringent security procedures.

13. Overall, the Tribunal did not find the applicant's story to be credible in material aspects. It considered it plausible that the applicant had paid some sort of protection money to ensure the ongoing operation of his businesses. It also considered it plausible that the applicant experienced some fires and may have been threatened by armed people. The Tribunal did not accept that the applicant had been targeted by LTTE members because he was Sinhalese. It considered that if the applicant was a target of extortion and was harassed for not meeting the demands, they were not motivated by convention reasons but for the reason of raising funds.

14. Separately, the Tribunal found that the authorities would have provided proper protection to the applicant if he sought that protection. It pointed out that he was able to continue living in Sri Lanka for several years after his last alleged harassment at the hands of the LTTE. The Tribunal referred to reports which showed that the Sri Lankan authorities had devoted massive resources to protecting the Sri Lankan community against attacks by the LTTE.

15. Finally, the Tribunal referred to a significant change in the environment in Sri Lanka since he left. Most significant was the signing of a formal ceasefire agreement by the LTTE and peace negotiations. The Tribunal considered there was not a real chance the applicant's fears would be realised if he returned to Sri Lanka and it was satisfied that the authorities could provide adequate protection.

The applicant's arguments

16. The applicant relied on two arguments. The first is that the Tribunal had failed to consider an essential matter; whether the demands for money from the LTTE and violence and threats of violence had a dual purpose, the raising of money and persecution of the applicant because of his Sinhalese ethnicity.

17. The second is that the Tribunal relied on country information reports without giving the applicant particulars of that information. It was submitted that s.424A of the Migration Act 1958 (Cth) required the Tribunal to give notice. It was submitted that the information did not fall within the exception contained within s.424A(3).

18. The essence of the applicant's first submission is that the Tribunal considered only two options in relation to the payment of protection money by the applicant in response to threats by the LTTE. The options, it was submitted, were that the applicant was a target of the LTTE for criminal purposes simply to extort money and that the applicant was a target of the LTTE because of his political opinions and Sinhalese ethnicity. The error which it was submitted that the Tribunal made, was not to consider the possibility that the threats had both motivations. That is, that the Tribunal had failed to take account of the possibility that the applicant was indeed experiencing persecution for reasons of race or political opinion because of his refusal to contribute funds to the LTTE callers which was perceived by them as opposition of a political nature. It was submitted that it must have been a question for the Tribunal whether action taken by the LTTE against a person who refused to contribute funds was not simply a mere financial exercise but was also simultaneously and equally undertaken because the LTTE perceived the applicant and his family had been opposed politically.

19. The submission was that the Tribunal is obliged to consider and determine whether the applicant is a person to whom Australia owes protection obligations under the Refugees Convention. The Tribunal had to determine whether the applicant had a well founded fear of persecution for a Convention reason. Failure to consider and determine one of the relevant elements is a jurisdictional error. (Peko-Wallsend v Minister for Aboriginal Affairs (1985-6) 162 CLR 24, 39-42 per Mason J.

20. The Tribunal said this:

However, the Tribunal does not accept that the LTTE has exposed its operations or personnel as claimed by the applicant. It does not accept that the applicant has been targeted by LTTE members because he is Sinhalese or because he is perceived to oppose LTTE politics. Even if the applicant's story of harassment by the LTTE is true, it still does not disclose any nexus with the convention. In arriving at that conclusion, the Tribunal is mindful of the provision of section 91R of the Act, which states:

[the Tribunal then set out the section]

If the applicant was a target of extortion and was harassed for not meeting the demands of the extortionists, it is clear that the latter would not be motivated by Convention reason but for the essential and significant purpose of raising funds for their cause. That is unrelated to the applicant's political opinions on Sinhalese ethnicity (or any other convention ground). That becomes clearer in light of the information (above), and his own concession, that some Tamils are also the target of extortion. If he has been subject to extortion demands, threats and arson, the Tribunal finds that those activities have no nexus to the Refugees Convention. They are criminal activities, perpetrated by criminals with the sole purpose of extorting money, irrespective of the Applicant's race or political opinions.

21. I do not consider that the Tribunal failed to consider one of the possibilities. The Tribunal did not formulate the possibility and then specifically reject it, but that does not mean there was a failure to consider a possible claim. The Tribunal rejected that the LTTE motivation was on convention grounds. The Tribunal found that the LTTE was motivated not by a Convention reason but by the "essential and significant purpose of raising funds for their cause". The Tribunal has specifically rejected the applicant's race or political opinion as a motive for the extortion. There was therefore no need for the Tribunal to consider the possibility that the LTTE perceived his refusal to contribute funds as opposition of a political nature. Implicitly, the Tribunal has rejected that possibility because it has rejected race or political opinion as a motive. The reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. (Minister for Immigration and Ethnic Affairs v. Wu Shan Liang and others (1996) 185 C.L.R. 259, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, McAuliffe v Secretary of Department of Social Security (1992) 28 ALD 609. To say that the Tribunal should have explicitly referred to the possibility that the LTTE was extorting money from the applicant because it considered him to be a political opponent would be an overzealous scrutiny of the reasons.

22. The second ground alleges a breach of s.424A of the Migration Act. It provides:

(1) Subject to subsection (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c) invite the applicant to comment on it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application; or

(c) that is non-disclosable information.

23. The Tribunal had regard to its understanding of the situation in Sri Lanka based upon various reports. It is claimed it breached the requirements of natural justice and was in breach of s.424A of the Migration Act because it failed to give the applicant notice of information it relied upon.

24. The information falls into two categories. The first is information that the LTTE engaged in extortion and that Sinhalese people would not support the LTTE. The second is information about the ceasefire between the LTTE and government forces in Sri Lanka.

25. In VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 573, Marshall J. assessed the applicant's claims against the subsection by undertaking three tasks:

i) identifying exactly what the "information" is;

ii) characterising whether the information is or is not about the applicant in particular; and

iii) considering whether the information is "just about a class of persons of which the applicant to the dot is a member".

26. His Honour's decision was reversed on appeal (on a ground which had not been argued at first instance) but the Full Court endorsed his approach to the subsection (VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74, at [20]).

27. In VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186, Kenny J. said at [50]:

50 In reaching this conclusion, it is helpful to consider other instances in which a similar question has arisen. One example is country information. It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant's claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal's decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information "just about" a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within par 424A(3)(a) of the Act: see, e.g., Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 per Carr J; Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570 per Carr, Lindgren and Katz JJ; Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402 per O'Loughlin J; Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 430 per RD Nicholson J; Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 per Mansfield J; and "W104/00A" v Minister for Immigration & Multicultural Affairs [2001] FCA 771 per Lee J. Contrast VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 ("VEAJ of 2002"), at [36]-[38], and [43] per Gray J.

28. The information needs to be, in the consideration of the Tribunal, the reason or part of the reason for affirming the decision. Therefore, the first step is to identify the information which is relevant.

29. The first class of information has two aspects. It is information that the LTTE engaged in extortion in areas under their control (described in one of the reports referred to by the Tribunal as "taxation") and that Sinhalese people would not support the LTTE. The extracts from reports referred to by the Tribunal go no further than this. They do form part of the reason for affirming the decision. They are part of the Tribunal's reasoning in determining that the LTTE obtained money from the applicant as extortion and not because of his Sinhalese ethnicity.

30. The second step is to characterise whether the information is or is not about the applicant in particular. It is not about the applicant in particular.

31. The third step is to consider whether the information is "just about the class of persons of which the applicant ... is a member". I consider that the information does meet this description. There are several possible classes of persons. Sinhalese in Sri Lanka, Sinhalese in LTTE controlled areas, Sinhalese businessmen in LTTE controlled areas and businessmen in LTTE control areas. The applicant is a member of each of these classes.

32. Therefore, the first class of information does come within s.424A(3).

33. The second class of information has two aspects. First, that the authorities in Sri Lanka provide protection against the LTTE and that there was a ceasefire and peace negotiations. This information was part of the Tribunal's reason for finding that even if the applicant held fear for his safety if he returned, the authorities provided adequate protection.

34. It is not information about the applicant in particular. It is information just about a class of persons of which the applicant is a member. The potential classes of persons are the same as already described. It is because he comes within one of those classes that the applicant says he has a fear of returning to Sri Lanka. While the information is about a wider class of persons overall, for the Tribunal's purposes, it is confined to the classes of persons of which the applicant is a member.

35. Therefore, the second class of information does come within s.424A(3).

36. Finally, based on the same grounds, breach of natural justice was alleged.

37. If the provisions of s.424A have been satisfied, it cannot be a breach of natural justice. In addition to that, the applicant and his adviser were plainly aware of the nature of the second type of information, that about the current situation in Sri Lanka. The adviser gave evidence about it and the applicant commented on it.

38. Neither of the grounds for review is made out. The application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Sherryn Kwong

Date: 24th November 2004
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