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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.

WAJG v Minister for Immigration [2003] FMCA 232 (13 June 2003)

WAJG v Minister for Immigration [2003] FMCA 232 (13 June 2003)
Last Updated: 7 July 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAJG v MINISTER FOR IMMIGRATION
[2003] FMCA 232



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:
WAJG



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 27 of 2003



Delivered on:


13 June 2003



Delivered at:


Perth



Hearing Date:


12 June 2003



Judgment of:


Walters FM



REPRESENTATION

Counsel for the Applicant:


In person



Counsel for the Respondent:


Mr Ritter



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 27 of 2003

WAJG


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

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 27 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.

3. On 11 October 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 14 November 2002, and was lodged on 18 November 2002.

6. In its decision dated 8 January 2003, the RRT affirmed the delegate's decision not to grant the applicant a protection visa.

7. On 13 January 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 12 February 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 and in failing to take into account the 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) follow(ed) procedural fairness according to the Muin and Lie cases of the High Court of Australia.

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

9. Counsel for the respondent (Mr Ritter) 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 12 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 Ritter 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.

12. The applicant had forwarded to the court a document entitled "Submission to the Federal Court of Australia by (the applicant), as dictated to (a Departmental officer) on 6 February 2003". The document identifies a large number of factual matters dealt with by the RRT in its decision, and takes issue with the RRT's findings in relation to them. The hearing before me proceeded on the basis that the applicant relied upon these submissions, as well as the grounds set out in his application.

Background

13. The applicant was born in Sri Lanka in March 1968. He is a Roman Catholic, and his ethnic group is Sinhala. He speaks Sinhalese.

14. Mr Ritter prepared written submissions, which were provided to the court on 11 June 2003. The general background facts, the evidence and claims made before the RRT, and various preliminary matters, are set out in paragraphs 15 to 18 of those submissions. I adopt those paragraphs and incorporate them into this Judgment as follows:

15. The RRT set out the applicant's claims in support of his protection visa application. Principally, these claims were:

(a) The applicant is a 34 year old Sinhalese Catholic man from Negombo in Sri Lanka.

(b) The applicant was politically active with the United National Party (UNP) in Sri Lanka.

(c) In 1993 the applicant became the UNP organiser for North Pitipane which was his village (in) the Negombo district. This involved him helping a long time UNP member of parliament, Mr Perera, in arranging and attending at party meetings and being responsible for social welfare.

(d) Prior to leaving Sri Lanka the applicant attempted to contest local municipal elections and in his absence his brother became the UNP candidate.

(e) On the general election polling day in 1994 a big stone was thrown at the applicant which left a scar. After the People's Alliance (PA) election win in 1994, members of the PA would try to knock him over as he was walking or riding along the street.

(f) In 1999 the applicant became one of ten organisers for the whole of the Negombo electorate and was in charge of the whole Pitipane area. He was selected as president by the leaders of five districts in the area.

(g) On the day after the 1999 presidential election, 25-30 PA supporters came to the applicant's home and attacked him with swords. One of them was Nimal Kurera.

(h) On 19 July 2001 the applicant attempted to attend a meeting in Colombo but was unable to proceed to the meeting because the police and the president's force used tear gas and batons to repel the crowd. A member of the president's security force called Nisantha saw the applicant. Nisantha was from the applicant's village.

(i) On 20 July 2001 Mr Nisantha and Mr Kurera came to the applicant's home and threatened him with a pistol to the head. They told the applicant to resign from the UNP and stop his political activity as an organiser or he would be killed. Subsequently, Mr Kurera and Mr Nisantha attended at the applicant's home and work when he was not present, made threats against him and fired shots. On one occasion the applicant was told that they had damaged his house and beaten his parents, wife and daughter.

(j) The applicant then went to live in an uncle's house for 10-12 days before staying with another relative and then departing for Australia.

(k) The applicant told the police about the dangers he faced in August 2001 but they did not conduct any investigation.

(l) If he returned to Sri Lanka, the applicant's life would be in danger from Mr Kurera, Mr Nisantha and the PA and he could be subject to reprisals following his brother's unsuccessful attempt to be elected to the council, a contest won by Mr Kurera's son.

(m) The applicant's claims were supported by a purported letter from Mr Perera dated 24 August 2001. Other documents including copies of translations of letters from the applicant's family and friends were provided to the RRT.

16. The RRT set out relevant independent country information about Sri Lanka.

17. The RRT set out its findings and reasons. The principal findings of the RRT were:

(a) The RRT accepted the applicant's account of his family in Sri Lanka and that his brother stood as a UNP candidate at recent council elections.

(b) The RRT accepted the applicant supported the UNP and became actively involved from 1993.

(c) The RRT accepted the applicant may have planned to stand for council as a UNP candidate.

(d) The RRT accepted the applicant may have assisted Mr Perera who was the local member of parliament.

(e) The RRT accepted the applicant had a stone thrown at him on polling day in 1994 which has left a scar.

(f) The RRT found the applicant's account of 25-30 people coming to his home in 1999 and attacking and injuring him not to be credible. The RRT therefore did not accept Mr Kurera was involved in the assault or that the episode was reported to the police who failed to respond.

(g) Being hit by a stone on polling day in 1994 and being harassed but not injured because of his political involvement subsequently did not amount to serious harm of a kind which could amount to persecution even if considered cumulatively.

(h) The RRT accepted the applicant may have participated in the 19 July 2001 protest rally and may have been affected by tear gas used by police in their attempts to disperse the gathering.

(i) The RRT was not satisfied the applicant's evidence about the actions of Mr Nisantha and Mr Kurera following the protest rally were true. The RRT did not accept as convincing the applicant's evidence that he had left his wife and child after they had been assaulted and threatened.

(j) The RRT was not satisfied the letter from Mr Perera accurately described the applicant's circumstances.

(k) The RRT concluded that the chances of the applicant, as an active supporter of the UNP, involved with the party at a local level for several years and who had planned to stand for election to the local council, coming to serious harm upon return to Sri Lanka was remote.

(l) The RRT did not consider that the change of government at the end of 2001, not possible return of the PA to power, nor his brother's candidature would alter the chance that he might suffer serious harm on returning to Sri Lanka.

(m) There is now a measure of police response to politically motivated violence which further limits the chance the applicant would face serious harm because of political involvement with the UNP if he returned to Sri Lanka.

(n) The fact that the applicant left Sri Lanka illegally may subject him to questioning upon his return but not persecution for any of the reasons set out in the Refugees Convention.

(o) The applicant was not a Tamil and the RRT did not find the evidence indicates that he would be seen to have a political opinion which could lead the authorities to take an adverse interest in him.

18. The RRT concluded there was no real chance the applicant would face harm amounting to persecution for a convention reason if he were returned to Sri Lanka.

The Law

15. 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.

16. 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.

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

18. 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 procedural fairness was also said not to be a privative clause decision within s.474(2).

19. 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 could be shown that one of the Hickman provisos had not been met.

20. 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, may raise some complex issues[2] - but there is no need to consider such issues in the proceedings presently before the Court.

Discussion

21. 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.

22. 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.

23. 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.

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

25. 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.

26. 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 Ritter's submission that, in so finding, the RRT acted within its jurisdiction.

27. 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.

28. 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 Ritter 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.

(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 166 of the Court Book, and is unexceptionable.

(c) 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 Ritter 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.

29. Mr Ritter submitted - and I agree - that the applicant's written submission dated 6 February 2003 dos not establish that the RRT made any jurisdictional error. I have already commented upon the inability of this Court to enter into a review of the RRT's decision on its merits.

30. 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, - and, in my opinion, the RRT clearly understood the applicant's case.

31. 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.

32. 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-two (32) paragraphs are a true copy of the reasons for judgment of Walters FM

Deputy Associate: Rebecca Young

Date: 13 June 2003


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[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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