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MIGRATION - Refugee Review Tribunal - protection visa - no jurisdictional error - whether issue correctly identified - application dismissed.

VNAY v Minister for Immigration [2004] FMCA 596 (13 September 2004)

VNAY v Minister for Immigration [2004] FMCA 596 (13 September 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VNAY v MINISTER FOR IMMIGRATION
[2004] FMCA 596



MIGRATION - Refugee Review Tribunal - protection visa - no jurisdictional error - whether issue correctly identified - application dismissed.



Ranwalage v Minister for Immigration & Multicultural Affairs (1998) 159 ALR 349

Craig v State of South Australia (1995) 184 CLR 163

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65

NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003)

SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

Collector of Customs v Pozzolanic (1993) 43 FCR 280

Zheng & Anor v Minister for Immigration & Multicultural Affairs (2000) FCA 670 (23 August 2000)

Applicant:
VNAY



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MLG 1138 of 2003



Delivered on:


13 September 2004



Delivered at:


Melbourne



Hearing Date:


25 August 2004



Judgment of:


McInnis FM



REPRESENTATION

Pro Bono Counsel for the Applicant:


Mr J. D'Abaco



Counsel for the Respondent:


Ms J Macdonnell



Solicitors for the Respondent:


Clayton Utz



FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MLG 1138 of 2003

VNAY


Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

1. In this matter the applicant, who is a citizen of Sri Lanka of Sinhalese ethnicity, applied for a protection visa on 30 June 1997 having arrived in Australia on 4 February 1996. On 15 July 1997 a delegate of the respondent refused to grant the visa. The applicant made a further application for a protection visa on 24 May 2001, and on 26 September 2001 a delegate of the respondent refused to grant that visa. On 22 October 2001 the applicant applied to the Refugee Review Tribunal (the RRT) for review of the delegate's decision on the 2001 application. The RRT affirmed the delegate's decision on 14 March 2003 and found that the applicant was not a person to whom Australia owed protection obligations. It is from that decision that the applicant then made application to the Federal Court on 7 April 2003 seeking a declaration that the RRT decision was void and of no effect and other consequential orders.

The RRT Decision

2. In its decision the RRT concluded that it was not satisfied that the applicant has any convention-related fears and that he did not meet the criterion for the purpose of granting a protection visa.

3. In brief terms, the applicant's claim of a well-founded fear of being persecuted in Sri Lanka were claimed to be due to political opinion. Mr D'Abaco, pro bono counsel for the applicant, relied upon the contentions of fact and law and otherwise made oral submissions on behalf of the applicant. Essentially, he characterised the applicant's claim as being one where, firstly, it was alleged that the applicant's life was endangered by a former acquaintance "Mr X" who is involved with the Peoples Alliance Party in Sri Lanka and who allegedly threatened to kill the applicant. The applicant claimed that as a result of Mr X's political connections, the Sri Lankan police would not protect him from Mr X. The second claim related to persecution by Sri Lankan police due to the applicant's relationship with Mr X and the latter's political activities.

4. In his application for a protection visa the applicant relied upon annexure "A" (court book page 82). Both counsel referred to extracts from that annexure and it is useful to set out relevant paragraphs which relate to the issues now sought to be agitated by the applicant in support of the amended application filed 22 December 2003. The relevant extracts from annexure "A" which was entitled "Submission of Claims For Application For a Protection Visa" are as follows:-

"... I held several vehicles such as Mitsubishi Delica L300, Toyota Town Ace and an Isuzu Elf.

This was my bread and butter and the only income that covered my family's survival. I had a classmate who was severely involved in political activities of the present party Peoples Alliance party whose name I am not yet prepared to disclose due to severe circumstances. In my claims I wish to name him as Mr `X'. Mr `X' was very helpful to me to get tenders from companies for inclusion of my vehicle for transportation. He pulled strings to get my tender passed and therefore I was able to get my business going.

As my friend was a heavily influential person and helped me with my business I was very faithful to him. During the presidential election period in 1994 he asked me to provide my vehicle to his team for propaganda and election preparation activities. This was not a favour I could refuse and I gave my vehicle over to a member of his team. Time passed and my vehicle was returned back to me and I carried out my usual business when in December 1995 some police officials crashed into my house and took me into custody. I was not told the reason until I was taken into for questioning. My family was terrified and my little son about 3 years old at the time and was shaken-up with fear but I had no option but to go with the police to the police station at the time. My wife was totally horrified at the time, as my daughter was just born and only 2 months old.

When I was taken to the police station the officials bashed me and asked some details of a murder case where my vehicle has been spotted. I was clueless and had no idea of any of this sort of happening. While I was been questioned I realized that the time they were inquiring was the time that my vehicle was being used by my friends team for election work. I could not say anything, as I was not aware of such an incident. The police hurt me and tortured me questioning as they say that they had reliable witness of my vehicle being present. To save my life I did tell that I was not having my vehicle at the time and I told them the truth. The police then released me and let me go home advising me that I should be available for evidence for the case.

Although it was my friend who helped me with my business activities I had to save my life and the future of my children and I had to tell the truth to the police. On the other hand I am also aware of the political influence of my friend Mr X, as he is reputed for handling thuggery and gangs with the use of his political possibilities. I thought and thought and could not come into a conclusion as although I came out of the police alive, I have doubts about staying alive. ..."

Applicant's submissions

5. Arising from the passages in annexure "A" it was submitted on behalf of the applicant that the RRT had made no reference to the following matters:-

* That during the presidential election in 1994 "Mr X" used the applicant's motor vehicle for propaganda and election preparation activities;

* That through his political connections Mr X wields a considerable power through his control of thugs and gangs.

6. It was submitted that although the claim does not reveal any views or opinions of political or economic or philosophical matters, that this does not mean that the facts relied upon by the applicant cannot constitute a "political opinion". Reliance was placed upon the decision of Ranwalage v Minister for Immigration & Multicultural Affairs (1998) 159 ALR 349. It was submitted that in the present case the Sri Lankan officials were aware that the applicant's vehicle was being used for "propaganda and election preparation activities". It was claimed the officials were aware that the applicant possessed this knowledge and that that knowledge was capable of constituting "political opinion". It is claimed that under the heading "Discussion and Findings" the RRT ignored the facts and referred only to the fact that at the time the applicant's vehicle was spotted it was at the scene of a crime of violence.

7. A further attack was made upon the RRT's findings that there was no reason to suspect that if the applicant was a witness in a murder prosecution the state would not do its utmost to protect him and its findings it was satisfied the state could protect the applicant. It was claimed the RRT fell into jurisdictional error in making those findings as they were completely erroneous and had no basis in the evidence adduced before the RRT.

8. It is useful to set out the discussion and findings of the RRT as follows:-

"The Tribunal has no reason to doubt that the Applicant is a national of Sri Lanka and therefore that Sri Lanka is the appropriate country of reference in assessing his claims to be a refugee.

The Tribunal has doubts about the veracity of the Applicant's claims, but was unable to pursue further explanations at a hearing. Assuming them to be true, the Tribunal aggress (sic) with the delegate that they do not disclose any nexus to the Convention. He fears he will be harmed by Mr X but there is no evidence to suggest that Mr X wants to harm him for reason of the Applicant's race, religion, nationality, membership of a particular social group or political opinion. The sole motivation disclosed by the Applicant's account is that Mr X wishes to avoid prosecution. Regardless of Mr X's political opinion or affiliations, his actions in respect of the Applicant are not Convention-related. Further, as also pointed out by the delegate, there is no reason to doubt that the Applicant can reasonably anticipate State protection. The police have already questioned him and released him on the basis he was telling the truth. There is no reason to suspect that if he is a witness in a murder prosecution brought by the State, they would do their utmost to protect him.

The Tribunal is not be satisfied that the Applicant has any Convention-related fears. Further, it is satisfied that the State can adequately protect him if he is under threat as he claims. It is not satisfied that he has a well-founded fear of persecution for Convention reasons and finds he is not a person to whom Australia has protection obligations under the Refugees Convention and Protocol and, therefore, concludes that he does not meet that criterion for the purposes of granting a protection visa."

Jurisdictional error

9. Since Plaintiff S157 when considering the issue of jurisdictional error the Court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-

"82. It is necessary, however, to understand what is meant by "jurisdictional error"
; under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)

`falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'

`Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law."

10. It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-

"...There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79]."

11. I note a further helpful decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant: -

"31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.

...

33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):

`... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as �a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.'

...

35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474."

12. The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 relevantly states the following:-

"27 The statement that a particular error is a �jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made �within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a �jurisdictional error' and as such it cannot be a valid action or decision.

28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:

�The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'

Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157."

Reasoning

13. The respondent submitted that there is no jurisdictional error in the present application as the RRT properly considered the material before it and made findings which were open to it on the evidence.

14. The respondent relied upon a High Court decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at paragraph 30 per Brennan CJ and Toohey, McHugh and Gummow JJ, quoting from the Full Federal Court decision of Collector of Customs v Pozzolanic (1993) 43 FCR 280 where it was held:

"The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."

15. In my view, there is no jurisdictional error having regard to the authorities to which reference has been made in the present application. I am satisfied that the RRT properly considered the material, including the matters set out in annexure "A". It is clear in annexure "A" that whilst the applicant has expressed a fear of Mr X, he has done so against the backdrop of political involvement by Mr X but has not otherwise provided factual material of a kind which would support a claim based on any convention-related fears. Simply because the vehicle used in the commission of a crime had also been used in relation to political activities does not of itself bring the claim within the ambit of a convention-related fear. The RRT properly considered the material and in particular it was entitled to have regard to the totality of the material before it. The general thrust of the claim by the applicant included reference to being released by the police despite giving them accurate information about the use of the vehicle by Mr X and his claimed political reputation.

16. The RRT correctly identified relevant significant authorities in reaching its decision and I can see no basis upon which this court would conclude that there has been jurisdictional error of the kind claimed for and on behalf of the applicant. There has not been any failure in this application, in my view, to address the claim, nor is there any failure to take into account relevant material. On the contrary, the RRT has considered the claim and it is not sufficient to endeavour to identify any minor omissions after a minute and fine examination of the tribunal's reasons. This is particularly so in circumstances where the tribunal expressly found that it had doubts about the veracity of the applicant's claims.

17. Whilst the applicant had relied upon the decision of Ranwalage, it is appropriate in the present case to note and apply what Merkel J stated in Zheng & Anor v Minister for Immigration & Multicultural Affairs (2000) FCA 670 (23 August 2000) where at paragraph 39 His Honour states:-

"39 The difficulty with the applicant's claims is that although he might have viewed his acts as "political" there was no material that suggested that the authorities had viewed, or might view, his acts in exposing Mr He as having any political aspect. In particular, the material and evidence provided by the applicant was bereft of any basis upon which the authorities might perceive his exposure of his superior's corruption as a political act in any of the senses described in the cases to which I have referred. Thus, there was no material or evidence before the RRT that suggested that the Chinese authorities or for that matter, anyone else, perceived the conduct of the applicant to be resistance to, defiance of, or any threat to the authorities or the State or to have any other political aspect to it."

18. I am satisfied in the present case that likewise there is a difficulty in the applicant's claim as the material does not suggest that the authorities had viewed or might view the applicant as being exposed to risk on the basis of any political matter and further, having released him, it was open to the RRT to make the finding in relation to protection of the applicant in the future.

19. For those reasons it follows that the application should be dismissed with costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 13 September 2004
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