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MIGRATION - Review of Refugee Review Tribunal's decision affirming a delegate's refusal of a protection visa - disputed findings of fact - no reviewable error found.

WAJP v Minister for Immigration [2003] FMCA 229 (12 June 2003)

WAJP v Minister for Immigration [2003] FMCA 229 (12 June 2003)
Last Updated: 7 July 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAJP v MINISTER FOR IMMIGRATION
[2003] FMCA 229



MIGRATION - Review of Refugee Review Tribunal's decision affirming a delegate's refusal of a protection visa - disputed findings of fact - no reviewable error found.



Applicant:
WAJP



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 63 of 2003



Delivered on:


12 June 2003



Delivered at:


Perth



Hearing Date:


10 June 2003



Judgment of:


Walters FM



REPRESENTATION

Counsel for the Applicant:


In person



Counsel for the Respondent:


Mr Allanson



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) The application for review be dismissed.

(2) Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the respondent to employ an advocate.

(3) The applicant do pay the respondent's costs fixed in the sum of $3,500.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 63 of 2003

WAJP


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

1. The applicant is a national of Sri Lanka, who arrived in Australia in mid September 2001. He was interviewed by a departmental officer later that month. In May 2002 he was advised by the Department that he had been found not to be a refugee. Almost immediately, he requested a review of the refugee status determination.

2. On 28 August 2002, the Department wrote to the applicant advising him that a review of the refugee status assessment had taken place and that he had - once again - been found not to be a refugee. On or about the same day, the applicant completed a request to lodge an application for a protection visa.

3. On 15 September 2002 the applicant applied for a Protection (Class XA) visa.

4. On 13 November 2002, the Department wrote to the applicant advising him that his visa application had been refused. The delegate had found that "...the applicant's fear of convention based persecution (was) not well-founded...".

5. The applicant then applied to the Refugee Review Tribunal ("the RRT"). The application is dated 15 November 2002, and was lodged on 19 November 2002.

6. In its decision dated 6 February 2003, the RRT affirmed the delegate's decision not to grant the applicant a protection visa.

7. On 12 February 2003 the applicant applied to the Federal Court for - in essence - a review of the RRT's decision. Those proceedings were transferred to this Court by order dated 28 March 2003.

Grounds for Review

8. The grounds appearing in the application for review are as follows:

(a) The RRT failed to apply the correct test and principles of relevant law (in) arriving at its decision and that it fell into error in taking into consideration irrelevant matters (or failing to take into account matters) that were relevant to reaching to its decision and therefore committed a jurisdictional error.

(b) The RRT decision involved an error of law being an error involving an incorrect interpretation of the term "well founded fear".

(c) The RRT wrongly understood most of my claims and the reasons for the rejection of the material claims are unreasonable, irrational and illogical; the RRT also not complied with statutory rules.

(d) The RRT (should have) followed procedural fairness according to the Muin and Lie cases of the High Court of Australia.

(e) These errors of jurisdictional errors by the RRT affected its decision.

9. Counsel for the respondent (Mr Allanson) submitted that, whilst the grounds refer to several distinct types of error, they do not specify the manner in which the RRT allegedly made the errors. It was also submitted on behalf of the respondent that it was not possible to respond to any of the applicant's grounds with particularity (due to the manner in which they had been drafted). In my view, those submissions have considerable merit.

10. During the course of the hearing before me on 10 June 2003, I invited the applicant (through his interpreter) to put to me anything that might assist in identifying a legal - or, relevantly, a jurisdictional - error. Apart from reiterating his dispute with certain findings of fact made by the RRT, however, he was unable to expand upon these grounds.

11. I gave the applicant a further opportunity to address me after Mr Allanson had summarised his submissions. The applicant's interpreter was present at all relevant times, and everything that was said by either the bench or counsel was interpreted for the applicant. Similarly, everything that he had to say was duly interpreted.

Background

12. The applicant was born in Sri Lanka in July 1980. He is a Roman Catholic, and his ethnic group is Sinhala. He speaks Sinhalese.

13. Mr Allanson prepared written submissions, which were provided to the court on 6 June 2003. The general background facts, the evidence and claims made before the RRT, and various preliminary matters, are set out in paragraphs 3 to 8 of those submissions. I adopt those paragraphs and incorporate them into this Judgment as follows:

3. ...the applicant said that he feared that if he returned to Sri Lanka he would be killed by members/thugs acting for the People's Alliance Party (PA). The applicant had been active as a supporter of the opposing political party the United National Party (UNP). He said that he had fled his home after thugs came to his home threatening to kill him after a political protest rally in July 2001. He had then left home and lived for a short time with his uncle in another town. While he had been staying with his uncle the thugs had again gone to his mother's house looking for him. The applicant had then left Sri Lanka...

4. There were no sur place claims.

5. On 13 November 2002 the applicant was informed that his application had been refused by a delegate of the respondent. On the basis of country information, the delegate found that a person could now receive protection from political violence from the authorities in Sri Lanka. The delegate further found that relocation within Sri Lanka was not unreasonable for the applicant.

6. In submissions filed on his behalf in the RRT the applicant put forward:

(a) material relating to the position in Sri Lanka and the control of the security forces;

(b) material on political violence in Sri Lanka, and in particular the use by the PA of its control of the security forces and police to enable it to persecute its opponents with impunity;

(c) the failure of the authorities to offer effective protection because they are unwilling or unable to prevent acts of persecution.

7. On 6 February 2003, the Tribunal made a decision affirming the decision of the delegate. The Tribunal:

(a) found the applicant's claims to a political profile were linked to his relationship with a person named Pulle, but the applicant was unable to describe how Pulle was related to the UNP;

(b) did not accept the applicant to have had any greater political activity than attending party meetings and rallies, citing inconsistencies in the claims made by the applicant at his arrival interview and later;

(c) did not accept the applicant had been threatened by PA supporters, again citing confused evidence in his earlier interview, and the failure of the applicant to explain why the PA member would take an interest in such a low level support of UNP;

(d) did not accept the applicant attended the rally in July 2001, in particular noting his evidence was contradicted by country information about the colours carried or worn for the rally.

8. As well as those findings, the Tribunal also found from the independent country information that:

(a) UNP members and campaign workers did not face a real chance of persecution, the UNP being a powerful and legitimate political party which campaigned openly.

(b) While there was some political violence on both sides, and some police were reluctant to respond, this did not mean the state condoned or was unable to control political violence.

(c) The situation if an election were called and the PA elected was, at best, speculative.

Accordingly the applicant would avail himself of protection in Sri Lanka.

The Law

14. Pursuant to s.483A of the Migration Act, this Court has the same jurisdiction as the Federal Court in relation to a matter rising under the Act. Under s.475A, it has jurisdiction in relation to a `privative clause decision' that is a decision made on a review by the RRT. `Privative clause decision' is defined in s.474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows:

A privative clause decision:

a) is final and conclusive;

b) must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and

c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.

15. In NAAV v MIMIA [2002] FCAFC 228, the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in the decision R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words, there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are:

(a) the decision is a bona fide attempt by the decision-maker to exercise its power;

(b) the decision relates to the subject matter of the legislation; and

(c) the decision is reasonably capable of reference to the power conferred on the decision-maker.

16. There was also broad agreement in NAAV that the purported exercise of power must not be one that contravened an inviolable limitation on the operation of the Act.

17. In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the High Court held that as a matter of construction the expression `decision... made under this Act' in s.474(2) "must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act."[1] If there has been a jurisdictional error, then the decision cannot properly be described as a decision made under this Act -- and is thus not a privative clause decision as defined in s.474(2) and (3). Further, a decision flawed due to failure to comply with the principles of natural justice was also said not to be a privative clause decision within s.474(2).

18. If there is no jurisdictional error affecting the RRT's decision, then the decision would be a privative clause decision and protected by s.474(1) -- unless it was shown that one of the Hickman provisos had not been met.

19. In Plaintiff S157/2002, the High Court confined itself to a general statement of principle in relation to jurisdictional error, and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the applicant in that case. The precise scope of the notion of jurisdictional error in this context, and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints, raises some complex issues[2].

Discussion

20. The very general grounds relied upon by the applicant provide no indication of the real basis upon which he asserts that the decision of the RRT cannot stand.

21. In my opinion, it is apparent from an examination of the RRT's decision that it gave careful consideration to the applicant's assertions and concerns.

22. I have re-read the RRT's decision carefully. I am unable to identify any basis upon which the RRT's decision can be interfered with. The RRT acted in good faith, its decision is reasonably capable of reference to the power given to it, its decision relates to the subject matter of the legislation and there can be no suggestion that any relevant constitutional limits were exceeded.

23. Further, in my opinion there is no apparent breach of procedural fairness which could amount to jurisdictional error.

24. The RRT conducted an objective inquiry into whether the condition precedent for the grant of the visa applied for had been established. Its conduct of the inquiry was unexceptionable.

25. The RRT decided not to accept the applicant's account of some of the events leading to his departure from Sri Lanka. I accept Mr Allanson's submission that, in so finding, the RRT acted within its jurisdiction.

26. Jurisdictional error occurs where a tribunal has misunderstood the nature of its jurisdiction, or misconceived its duty, or failed to apply itself to the question which the relevant Act prescribes, or misunderstood the nature of the opinion which it was to form[3]. Jurisdictional error can occur in other circumstances as well - for example, as a result of a denial of procedural fairness.

27. I turn now to deal briefly with the various grounds relied upon by the applicant. I shall use the lettering adopted in paragraph 8 of these Reasons:

(a) Mr Allanson submitted that the applicant did not identify which relevant (or irrelevant) considerations were material to the ground. That submission is clearly correct. In my opinion, the RRT has clearly addressed the matters required by the Act and the Convention, and I agree Mr Allanson's submission that it assessed:

...whether there was a real chance that the applicant would face persecution by reason of his political opinions or activities by having regard to his own account of what had occurred before he left, and the country information about political violence in Sri Lanka.

(b) In my opinion, the RRT did not incorrectly interpret the term "well founded fear". The RRT's approach to this question appears on page 131 of the Court Book, and is unexceptionable.

(c) Mr Allanson submitted, and I agree, that this ground apparently invites the court "...to enter into merits review". I have re-read the RRT decision carefully. It is clear that it did not misunderstand the applicant's claim. Nor, in my opinion, were its reasons for rejecting the applicant's "material claims" unreasonable, irrational or illogical. Indeed, and as Mr Allanson submitted, even if the court were to reach the view that a particular conclusion arrived at by the RRT may be incorrect, or the consequence of illogical reasoning, that - in itself - would not involve jurisdictional error or give rise to any ground of review[4].

To the extent that this ground amounts to a submission to the effect that the RRT's decision was unreasonable, I refer to the following passage from NASL v MIMIA (2003) FMCA 72:

There is a helpful discussion of the doctrine of unreasonableness in Judicial Review of Administrative Action, 2Ed, Aronson and Dyer, 2000 where at 285 the learned authors...indicate that the bar to a finding of unreasonableness amounting to a cause for judicial review is set exceedingly high. Perhaps the best expression of this bar for the purposes of the instant case is found in the judgment of Lord Brightman in Pulhofer[5] at 518:

"Where the existence or non existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debateable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power, save in a case where it is obvious that the public body, consciously or unconsciously, has acted perversely."

Put another way (and in a slightly different context):

It is not for the Court, on reviewing a decision of the tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the tribunal, or upon any such view to conclude that the tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the tribunal[6].

Finally, as McHugh J said in Re: MIMA: ex parte Cohen (2001) HCA 10 at [37]:

If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reason or process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.

It follows that I am unable to conclude that the RRT's decision was unreasonable in any relevant sense.

Although the allegations in this ground also included an allegation of failure to comply with certain statutory rules, the applicant did not identify the relevant rules, or provide anything to support his contention in that regard.

(d) The decision of the High Court in Plaintiff S157 confirmed that s.474 does not protect a purported decision made as a result of jurisdictional error - and a failure to accord procedural fairness constitutes jurisdictional error. An administrative decision which involves jurisdictional error is regarded, in law, as no decision at all[7].

The decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601 was a decision relating to the subject of procedural fairness[8]. Once again, the applicant has provided no indication of the evidence that he asserts could have been presented, or what other step he could properly have taken in relation to the prosecution of his claim. During the course of the hearing before me, I invited the applicant to expand upon this ground. After explaining to him the concept of procedural fairness, I asked him whether he could identify any basis upon which he could assert that procedural fairness had been denied him - but he did not attempt to argue that there was such a denial.

(e) This ground does not appear to raise any separate or independent matter.

28. Overall, and as I have already recorded, I am unable to identify any basis upon which the RRT's decision can be interfered with. The RRT acted in good faith, its decision is reasonably capable of reference to the power given to it, its decision relates to the subject matter of the legislation and there can be no suggestion that any relevant constitutional limits were exceeded. In my opinion, there could be no suggestion of bias (whether actual or apprehended). Further, there is no apparent breach of procedural fairness which amount to jurisdictional error. The applicant gave evidence before the RRT. He did not suggest that he did not understand the proceedings in which he was involved. In my opinion, the RRT clearly understood the applicant's case.

29. In my view, the findings of fact contained in the RRT's decision, and the conclusions drawn from those facts were reasonably open to it.

30. For the preceding reasons, the grounds for review (to the extent that they can be identified from the material now before the Court) must fail, and the application must be dismissed with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Walters FM

Deputy Associate: Rebecca Young

Date: 12 June 2003


--------------------------------------------------------------------------------

[1] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, and also see [19] per Gleeson CJ and [163] per Callinan J

[2] see, for example, Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 -- in relation to s.65 of the Migration Act

[3] see Cole & Allied Operations Australian Industrial Relations Commission (2000) 203 CLR 194

[4] See MIMA v Epeabaka (1998) 84 FCR 411 at 421 and MIMA v Perera (2001) FCA 1212 at [22] 22 - [26]

[5] Pulhofer v Hillingdon London Borough Council (1986) 1 AC 484 at 518

[6] see Kamal v Minister for Immigration (2002) FCA 818 at [36]

[7] see (2003) 195 ALR 24 at 45

[8] see the careful analysis of the Muin decision by Raphael FM in NAAY v Minister for Immigration (2003) FMCA 46
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