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MIGRATION - Review of decision of the Refugee Review Tribunal affirming decision not to grant a protection visa - citizen of Sri Lanka claiming political persecution - issue regarding credibility of applicant - decision of Refugee Review Tribunal affirmed.

VAAW v Minister for Immigration [2002] FMCA 200 (17 January 2003)

VAAW v Minister for Immigration [2002] FMCA 200 (17 January 2003)
Last Updated: 17 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VAAW v MINISTER FOR IMMIGRATION
[2002] FMCA 200



MIGRATION - Review of decision of the Refugee Review Tribunal affirming decision not to grant a protection visa - citizen of Sri Lanka claiming political persecution - issue regarding credibility of applicant - decision of Refugee Review Tribunal affirmed.

Migration Act 1958, ss.36(2), 91(R) 91(R)(2), 474, 483A

Judiciary Act 1903, ss.39B, 39B(1)

Constitution, ss.75(v)

United Nations Convention, Article 1H, 10(2)

Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381

Gersten v Minister for Immigration and Multicultural Affairs (2000) FCA 855

Shergold v. Tanner (2002) HCA 19

Deputy Commissioner of Taxation v. Richard Walter Pty Ltd (1995) 183 CLR 168

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs and the Refugee Review Tribunal of the Commonwealth of Australia, N265 (2002)

NABE v Minister for Immigration and Multicultural and Indigenous Affairs, N282 (2002)

Ratumaiwai v Minister for Immigration and Multicultural and Indigenous Affairs, N399 (2002)

Turcan v Minister for Immigration and Multicultural and Indigenous Affairs, V225 (2002)

Minister for Immigration and Multicultural and Indigenous Affairs v Wang, S84 (2002)

Hickman ex parte Fox v. Clinton (1945) 70 CLR 598

R v Metal Trades Employers' Association: ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208

R v. Coldham: O'Toole v Charles David Pty Ltd (1991) 171 CLR 232

Craig v. South Australia (1995) 184 CLR 163

Minister for Immigration and Multicultural Affairs v Yusef (2001) YCALR 1



Applicant:
VAAW



Respondent:


THE MINISTER FOR IMMIGRATION & MUTILCULTURAL & INDIGENOUS AFFAIRS



File No:


MZ334 of 2002



Delivered on:


17 January 2003



Delivered at:


Melbourne



Hearing Date:


21 August 2002



Judgment of:


Bryant CFM



REPRESENTATION

Counsel for the Applicant:


Mr P Newstapny



Solicitors for the Applicant:


Godson Nwankwo



Counsel for the Respondent:


Mr G Gilbert



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

IT IS ORDERED

(1) THAT the Application be dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ334 of 2002

VAAW OF 2002


Applicant

And

THE MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

1. The applicant who is a citizen of Sri Lanka arrived in Australia on 5 May 2001. On 10 July 2001 he lodged an application for a protection (class XA) Visa with the Department of Immigration and Multicultural Affairs under The Migration Act 1958 ("the Act"). An applicant for a visa of a particular class is entitled to be considered against the criteria for all sub-classes within that class. Visa class XA includes two sub-classes; 785 (temporary protection) and 866 (protection).

2. On 26 September 2001 a Delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refused to grant a protection (class XA) visa and on 27 September 2001 the applicant applied for a review of that decision by the Refugee Review Tribunal (RRT). The RRT affirmed the decision of the Minister's Delegate refusing to grant the applicant a protection visa.

3. The amended application of the applicant filed in the Federal Magistrates Court of Australia sought review of that decision and in the alternative relief by way of perogative writ pursuant to s.39B of the Judiciary Act. The ground stated in the application is that the decision of the RRT was invalid and contrary to law.

Background

4. The applicant is a citizen of Sri Lanka of Sinhalese ethnicity. He arrived in Australia on 5 May 2001 as a holder of a business visa travelling on a false passport in a false name.

5. On 29 June 2001 his business visa was cancelled. He was then placed in immigration detention and in a later interview with a compliance officer revealed his true name.

6. On 6 July 2001 the applicant lodged an application for a protection visa in his correct name. On 26 December 2001 a delegate of the Minister refused to grant a protection visa to the applicant, and he then applied to the Refugee Review Tribunal for a review of the Delegate's decision.

7. The applicant claimed that he was a refugee as defined in Article 1H of the Convention and therefore a person to whom Australia has protection obligations by reason of having been targeted and politically victimised and harassed as a result of his membership of the United National Party (UNP) and that he feared for his life and that the police were unwilling to provide protection.

8. In order to satisfy the RRT that he is entitled to a protection visa, the applicant must satisfy the decision-maker that the prescribed criteria for the visa had been satisfied. The relevant criteria in this case are set out in s.36(2) of the Act. This provides that the criterian for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the United Nations Convention relating to the status of refugees in 1951 as amended by the 1967 protocol relating to the status of refugees ("the convention").

9. Australia is a party to the Convention and has protection obligations to people who are refugees as defined in them. Article 10(2) of the Convention defines as a refugee any person who:

"Owing to a 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, or who, not having a nationality and being outside the country of his former habitual residence, is unable, or, owing to such fear, is unwilling to return to it."

The applicant's case to the RRT

10. The applicant is 46 years old and is from Kandy. He worked on a casual basis driving vehicles from the Colombo harbour area to car detailers in Kandy, a job he described as hazardous because of the level of unrest in Sri Lanka and the ongoing fighting between rival parties. He stated that he and his family are supporters of the UNP and that he joined the UNP in 1985 because his grandfather and father had been active in the party and some of his friends were involved. He thought that the party had good policies in relation to development, education and welfare employment.

11. He assisted the UNP Chief Organiser for the Senkadagala electorate and a member of the Kandy Municipal Council. Initially he attempted to encourage people to be involved with the UNP and enrolled members. In 1996 he claimed to become an organiser and second in line after the chief organiser. At the time he became an organiser there were no election campaigns underway and the first campaign he was involved with as an organiser was in 1999. The chief organiser was on the municipal council and was standing for parliament in the national election to be held on 5 December 2001. He informed the RRT that the election in October 2000 was a provincial election and said that prior to 2000 he had been abused and had stones thrown at him by supporters of the rival party.

12. The area in which he lived was a UNP area. Prior to the 2000 election he said that the main organiser of the Government (the alternative party) was Minister Rattwatte and he was also Deputy Minister of Defence. One of his sons Lohan Rattwatte (Lohan) and his supporters interrupted meetings, smashed the stage at UNP meetings and beat UNP supporters. He asserted that he was permanently targeted by Lohan and that Lohan and "thugs" came to his parents' home looking for him and beat up his brother when they found that he was not there. He said that they wrecked his house and issued a warning that they would kill him if he did not step down from his political position.

13. He said that there was often fighting between supporters of the opposing parties when an election was coming. At a rally for the candidate Ailapperuma for the Provincial Council in his Province two vehicles carrying PA supporters came in front of the police. People got out and started to assault people. Lohan targeted the applicant and people, including candidates, were assaulted. The police intervened and the applicant was injured and was taken into custody by the police. He believes that the police took him into custody at the instigation of Lohan who was able to use his influence because of his father who was Minister of Defence and thus was responsible for the police.

14. The applicant's release from custody was arranged by Mr Ailapperuma and he then spent two days in hospital. He asserted that his brother had been threatened with death so that he stayed away from his home. He asserted that the police would not take complaints against the Minister and his son Lohan and their supporters, as the Sri Lankan police comes under the control of the Ministry of Defence.

15. He asserted that he came to Australia in May 2001, some six months or so after the October 2000 election. He said his house had been vandalised during this time and he had been hiding. He said his brother and friends had told him that people had come looking for him to kill him unless he left the UNP and he was unable to continue working because of these problems and decided to come to Australia.

16. He entered Australia with a false passport but while his visa was cancelled he subsequently sought a protection visa in his correct name.

The RRT Decision

17. The RRT found that the applicant did not face a real chance of being persecuted for a convention reason if he returned to Sri Lanka. The RRT key findings may be summarised as follows:

(1) The applicant was a national Sri Lankan from Kandy area who had travelled to Australia on a false passport as a means of securing a visa for Australia;

(2) The applicant's family circumstances and employment history were as claimed;

(3) The applicant was a supporter of the UNP and may have taken part in rallies and other gatherings in the context of election campaigns, but his claimed role was not accurate and was over stated;

(4) The applicant could have been abused and had stones thrown at him when he was at rallies or political gatherings in Kandy, where independent information confirms there was considerable political violence. He may also have been among UNP supporters who protested outside a police station in September 2000;

(5) The applicant was not consistently targeted by Mr Lohan Rattwatte and warned to give up his involvement with the UNP. He was not sought before or after October 2000 as claimed, nor was his house wrecked. If he went into hiding before coming to Australia, it is not related to his political involvement;

(6) There is no more than a remote chance that the applicant would face harm amounting to persecution because of his political opinion or activities because:

(a) he had a limited involvement with the UNP and there was nothing to indicate that he would have a greater involvement if he returned;

(b) the abuse, having stones thrown at him, and assault by

Mr Rattwatte or a police officer was not sufficiently serious as to amount to persecution, and there was not a chance that he would face more serious harm if he returned;

(c) whilst there were criticisms of the capacity and willingness of the police to address incidents of politically motivated violence, and their response was uneven, the measure of police action available further limited the chance of serious harm because of the applicant's limited involvement in the activities in support of the UNP.

The applicant's submissions

18. The applicant submits that the decision to affirm the decision of the Delegate to refuse the applicant a protection visa was based primarily upon the decision-maker's disbelief of the applicant's claims of the extent of his association with UNP. It is contended that the RRT decisions were based on credibility findings which underpin the decision. It was contended that the findings by the RRT were not open on the material before it after consideration of matters that were logically probative of the issue of credibility (Merkel J in Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 at 383-4).

19. Counsel for the applicant submitted that after accepting parts of the evidence of the applicant, the RRT made the following credibility findings that were not open on the material, or that were not logically probative of the issue of credibility:

(a) The RRT formed the view that the applicant was confused about a number of matters which led the Tribunal to find that the applicant had over-stated his role in the UNP. The first of those was that the applicant was quite "emphatic" that the election in October 2000 was for the Provincial Council, whereas it was for the National Parliament. The actual description of the exchange between the Tribunal and the applicant, appears at page 81 of the Court Book, and is as follows:

"I advised the applicant that I understood that the election held in October 2000 was also a national election, and that the forthcoming election was being held early because the Coalition Government had collapsed. He said that the election in October 2000 was a Provincial Council election, and he could not remember when the last national election was held."

The applicant contends that this was an inadequate basis upon which to form the view that he had been "emphatic" that the election in October 2000 was for the Provincial Council. It is difficult to see how the applicant can successfully argue this ground. The use of the term "emphatic" may indicate a tone of voice in his responses, or simply that he was firm in his view. In any event, it appears that the main concern of the Tribunal was the fact that the applicant was wrong about the nature of the elections, rather than the strength of the manner in which it was expressed.

(b) Secondly, the Tribunal found that the applicant had an incomplete understanding of the tiers of Government in Sri Lanka. He appeared to think that members of the Provincial Council were somehow also members of Parliament.

(c) Thirdly, the Tribunal found that the applicant's claim that the UNP had long-won in Senkadagala was not supported by independent information. This led the Tribunal to conclude that a person who had a position of responsibility as organising the UNP as asserted by the applicant, would know these things, and the fact that he was confused about these matters led the Tribunal to conclude he did not have the involvement he had claimed.

20. It was contended that in relation to the second and third of these findings, that the member did not inquire into the role of an organiser generally, or the applicant specifically, to ascertain his level of knowledge and functions and duties. It was also contended by the applicant that although the applicant said he became an organiser in 1996, and there were elections between 1996 and 1999, he had not been directly involved as he had been busy at work, and been in Colombo for some of the time. It was contended that in the context of the inquiry, the Tribunal had imputed to him a level of knowledge which could not be expected of a person who was simply, during most of the relevant period, a truck driver and jewellery designer. Thus, the findings of his failure to meet an apparent requirement of specialised knowledge was not open on the material after consideration of matters logically probative of the issue.

21. The second ground relied upon was that the Tribunal misconstrued, and misapplied the Convention, in that it misinterpreted the definition of "persecution" as provided for in s.91(R) of the Act, in that the Tribunal found that abuse and stone-throwing and an assault by a political opponent or police officer was not

"significant physical harassment or ill-treatment".

22. It was conceded that the Tribunal found that what the applicant might have experienced was not considered trivial, but did not involve serious harm necessary to be regarded as persecutory,

"or that there is a real chance that he would face more serious harm if he were returned to Sri Lanka".

23. It was contended for the applicant that this finding showed that the Tribunal asked itself the wrong question and identified a wrong issue, the real issue being whether there was a real chance of persecution on the basis of the serious harm the applicant was found to have suffered, namely abuse, stone-throwing and assaults by political opponents and police officers.

24. It was submitted that s.91(R)(2) by providing examples of what may be serious harm for the purposes of subsection (1) had put:

"a `gloss' on pre-existing definitions of persecution by those examples."

25. It was contended that the findings by the Tribunal of what had occurred, namely stone-throwing, assault by a political opponent or police officer, must come within the definition s.91(R)(1) and clear accounts within the examples given in sub-s.2. In support of its contention, the applicant relied upon the decision in Gersten v Minister for Immigration and Multicultural Affairs (2000) FCA 855, where the Full Court had summarised the meaning of the words

"being persecuted"

and said,

"it is clear that while the word means infliction of harm, not every kind of harm constitutes persecution.

That having been said, harm short of interference with life or liberty may suffice. Many forms of social, political and economic discrimination may constitute persecution including denial of access to employment and restriction of freedom of worship."

26. It was contended by the Respondent that this case was the reverse of Gersten in the sense that the findings made by the Tribunal in this case ought to have led to a finding of serious harm, and therefore persecution in the term as applied by the Convention.

27. Finally, the applicant argued that the Tribunal failed to ask itself the question,

"what if I am wrong"

and failed to speculate as to the possibility of persecution against the applicant if he were to return to Sri Lanka. It was contended that the past was the most reliable guide to the future, and the Tribunal should have found there was a real chance of serious harm if the applicant was forced to return."

The law

28. I do not need to deal in detail with the applicants' contentions because the applicant conceded that if the Court were to accept his arguments, then what would have been established would be an error of law on the part of the Tribunal, and he accepted that s.474 of The Migration Act applied to validate and increase the jurisdiction of the Tribunal, and to protect the decision against attack on the basis of an error of law.

29. The applicant did not seek to argue that the error which he asserted brought the applicant within one of the exceptions in Hickman. There was no suggestion by the applicant in this case that the decision under review was not a bona fide attempt by the Tribunal to exercise its decision-making power. Nor was there any suggestion of a constitutional error apparent on the face of the decision, nor any suggestion that the decision did not relate to the subject matter of the Legislation, or that it was not reasonably capable of reference to the power given to the RRT. Furthermore, it was not contended that the Tribunal breached any inviolable limitation on its decision-making powers, and thus the applicant's application must fail, and it must be dismissed.

30. This application was made to the Federal Court (and then subsequently to the Federal Magistrates' Court) under s.39B of the Judiciary Act 1993 (Cth) which relevantly provides in s.39B(1):

"... the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ or mandamus or prohibition or an injunction sought against an officer or officers of the Commonwealth."

Section 39B(1) is taken from s.75(v) of the Constitution and is, in its language, for all intents and purposes identical to the language in s.75(v): See Shergold v. Tanner (2002) HCA19 at 41 and Deputy Commissioner of Taxation v. Richard Walter Pty Ltd (1995) 183 CLR 168 at 181, 212-213 and 231.

31. The jurisdiction of the Federal Magistrates Court in these matters is invoked by s.483(A) of the Migration Act. The jurisdiction which the Court exercises is subject to s.474 of the Act which is found in new Part 8.

32. On 15 August 2002, the Full Court of the Federal Court (Black CJ, Beaumont, Wilcox, French and von Doussa JJ) gave judgment in five cases, NAAV v Minister for Immigration and Multicultural and Indigenous Affairs and the Refugee Review Tribunal of the Commonwealth of Australia, N265 (2002); NABE v Minister for Immigration and Multicultural and Indigenous Affairs, N282 (2002); Ratumaiwai v Minister for Immigration and Multicultural and Indigenous Affairs, N399 (2002); Turcan v Minister for Immigration and Multicultural and Indigenous Affairs, V225 (2002) and Minister for Immigration and Multicultural and Indigenous Affairs v Wang, S84 (2002). ("NAAV"). The five appeals were heard together. All of them raised questions of statutory interpretation about the extent to which the amendments made to the Migration Act 1958 (Commonwealth) in October 2001 have, by s.474(1) restricted the review by the Courts of administrative decisions of the Minister for Immigration and Multicultural and Indigenous Affairs, his delegates and the merits review tribunals (notably the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT)) in migration matters.

33. The majority view, represented by the Chief Justice, Beaumont and von Doussa JJ said the amendments left little scope for judicial review (in a sense that although the amendments to the legislation do not prevent access to the Courts, they have little scope for an applicant to argue successfully that the decision affecting him/her was invalid on legal grounds).

34. All of the Judges agreed that the October 2001 amendments to the Migration Act 1958 (Cth) have removed what would otherwise be errors in the making of some migration decisions from the scope of judicial review by the Courts, and have done so by implicitly changing the substantive meaning of the Act so that the jurisdiction and/or power of decision-makers under the Act, is expanded. In this way, the decisions that might otherwise have been invalid, are "validated" by the effect of the privative clause.

35. The "privative clause", introduced in October 2001, is contained in s.474 of the Act and reads:

"The privative clause decision:

(a) is final and conclusive; and

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

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

36. Black CJ agreed with what von Doussa J had to say about the construction of s.474 and his reasons for rejecting the submission that s.474 was invalid as being offensive to Chapter III of the Constitution.

37. However, the words of s.474 have effect subject to the exceptions set out in the judgment Dixon J in Hickman ex parte Fox v. Clinton (1945) 70 CLR 598 at s.15, where the High Court held that a privative clause expanded the power of relevant decision-making in such a way that the lawfulness of any decision made was beyond question, provided:

"The decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body."

38. In addition to the three exceptions referred to, a fourth was then identified:

"Thus in Hickman, Dixon J, seemed to acknowledge that there was another limitation or condition to the validating effect of the privative clause, in addition to the three provided as earlier mentioned in his Judgment. The purported exercise of power by the decision-maker must not be one that contravenes a "inviolable limitation upon the powers, duties and functions" of the decision-maker." Per von Doussa J in NAAV par.619.

39. This additional condition to the Hickman examples has been described in other cases as being an inviolable limitation (R against Metal Trades Employers' Association: ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 per Dixon J, and R v. Coldham: O'Toole v. Charles David Pty Ltd (1991) 171 CLR 232 at 49 per Mason ACJ and Brennan J.

40. Thus the following propositions may be extracted from the Full Court decision, and privative authorities which were approved in that decision:

(2) A privative clause such as that contained in s.474(1) operates to limit the available grounds of review by altering the substantive law relating to the extent of the decision-maker's powers (so that a decision made in breach of a Statutory requirement may nevertheless be valid, lawful and within jurisdiction).

(3) Such a provision will not generally be construed so as to authorise decisions:

(a) that are not a bona fide attempt to exercise the power;

(b) that do not relate to the subject matter of the legislation, or are not capable of reference to the power given to the decision-maker;

(c) that infringe "inviolable limitations or restraints" on the powers of the Tribunal - that is common limitations in requirements which are properly construed as being essential preconditions to the valid exercise of the power, notwithstanding the existence elsewhere in the relevant statute of a privative clause; or

(d) that are beyond any Constitutional limits in the Tribunal's powers.

41. Decisions of a kind described in the paragraph above, will generally involve an excess of jurisdiction, which is amenable to relief by way of prohibition, mandamus and/or certiorani. Section 474 operates to expand the decision-maker's jurisdiction to make a valid and lawful decision. The limits on the extent to which a privative clause such as s.474 can expand the jurisdiction of the decision-maker, is reflected in the Hickman conditions.

42. Section 474 is quite capable of "curing" the kind of errors which would otherwise have amounted to jurisdictional error, under the principles discussed in Craig v. South Australia (1995) 184 CLR 163-179 and Minister for Immigration and Multicultural Affairs v. Yusef (2001) YCALR 1 at par.[39]-[44], 82-83.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 16 January 2003
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