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MIGRATION - Appeal from a decision of the Refugee Review Tribunal - applicant claiming fear of persecution based on political activity - jurisdictional error - whether Tribunal made jurisdictional error in not accepting the applicant's explanations - privative clause - decision of Refugee Review Tribunal confirmed.

VBAU v Minister for Immigration [2002] FMCA 166 (9 August 2002)

VBAU v Minister for Immigration [2002] FMCA 166 (9 August 2002)
Last Updated: 19 August 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VBAU v MINISTER FOR IMMIGRATION
[2002] FMCA 166



MIGRATION - Appeal from a decision of the Refugee Review Tribunal - applicant claiming fear of persecution based on political activity - jurisdictional error - whether Tribunal made jurisdictional error in not accepting the applicant's explanations - privative clause - decision of Refugee Review Tribunal confirmed.



Migration Act 1958 (Cth), s.474

Judiciary Act 1903 (Cth), s.39B

Migration Legislation Amendment (Judicial Review) Act 2001

Federal Magistrates Court Rules 2001

R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 616

SAAD v MIMIA (2002) FCA 206

SBAE v MIMIA (2002) FCA 479

Craig v South Australia (1995) 184 CLR 163

Abebe v The Commonwealth (1999) 197 CLR 510 at 576

Kioa v West (1985) 159 CLR 550 at 587

VAAC and MIMA (2002) FCA 573

NABL and MIMA (2002) FCA 102

Turcan and MIMIA (2002) FCA 397

Re Refugee Review Tribunal; ex parte Aala (2000) HCA 57

Applicant:
VBAU



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ542 of 2002



Delivered on:


9 August 2002



Delivered at:


Melbourne



Hearing Date:


26 July 2002



Judgment of:


Hartnett FM



REPRESENTATION

Pro bono Counsel for the Applicant:


Ms Sarmas

Douglas Menzies Chambers

Level 9, 180 Williams Street

MELBOURNE VIC 3000



Counsel for the Respondent:


Chris Horan



Solicitors for the Respondent:


Clayton Utz

Level 18, 333 Collins Street

MELBOURNE VIC 3000



ORDERS

(1) That the application be dismissed.

(2) That the applicant pay the respondent's costs pursuant to the Federal Magistrates Court Rules, Part 21, Rule 21.10.

IT IS CERTIFIED:

(3) That pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, this matter reasonably require the attendance of counsel of advocate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ 542 of 2002

VBAU


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The proceedings

1. By order of Ryan J made 29 May 2002, these proceedings were transferred from the Federal Court of Australia to the Federal Magistrates Court of Australia and proceeded before me for hearing in Melbourne. Both the applicant and respondent were represented by counsel and the applicant was assisted by an interpreter who was physically present in the courtroom. The Court is grateful for the assistance provided by counsel for the applicant, Ms Sarmas, who appeared as pro bono counsel under the Victorian Bar Legal Assistance Scheme.

2. The applicant was born on 26 December 1977 and is aged 24 years. He is a Sinhalese buddhist. He is a single man who departed from Sri Lanka on 4 November 2001, arriving at Melbourne airport on 5 November 2001 on a subclass 420 entertainment visa which was cancelled almost immediately on the grounds that he was not in fact an entertainer. He applied for a protection visa four days later on 9 November 2001. On 6 December 2001 a delegate for the Minister for Immigration and Multicultural Affairs refused to grant a protection visa and on 13 December 2001 the applicant applied for review of that decision. On 30 January 2002 the Refugee Review Tribunal affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant. The applicant filed an application for review of the Tribunal's decision with the Federal Court of Australia on 28 February 2002. That application was amended by amended application for an order for review filed 5 July 2002.

3. The applicant also relied upon the applicant's contentions of fact and law filed 5 February 2002. The respondent relied upon the Court Book filed 15 March 2002 and the respondent's contentions of fact and law filed 26 March 2002 together with the respondent's supplementary contentions of fact and law filed 22 July 2002. Tendered in evidence by the applicant in the running of the matter was a copy of the transcript of the Refugee Review Tribunal hearing proceedings of

30 January 2002.

The Refugee Review Tribunal decision

4. The applicant's claims to be accorded refugee status were summarised by the Tribunal in these terms in its reasons for decision:

"The reason he came to Australia and left Sri Lanka was because of death threats. He is the oldest in his family. He has a younger brother who goes to school. The applicant and his father both do farming work for a living. His father, in addition to his farm work, did full time work in the political field, and served as a secretary for branch no. 633 of the SLFP. When he could, the applicant followed his father and was involved in political work. During that period he would organise meetings and address them. Because of this the UNP, which is the main opposition party, made many threats. Those threats were received by telephone and through letters. After some time, the applicant and his father left the SLFP as they did not agree with their policies. They joined the UNP and worked actively. In the UNP, the applicant became a committee member and worked actively. Because he left the SLFP and joined the UNP, his main political enemies are from the SLFP. During this period, the date was given for the election called for 5 December 2001. Because of this, his life is at stake. On 30 October 2001 when the applicant was organising a UNP meeting, people with arms came to him, abused him and threatened him that he would be killed in a few days. They said they would kill his family and burn down the house. From then he was hiding in the houses of friends and relatives. For the sake of his life he left Sri Lanka and came to Australia. Because of him, even now his parents are being threatened. For their protection, he left the house. Because of these death threats it is difficult to go back. There are people threatening him and he can divulge these names. He did not write these names in the statement out of fear.

At the hearing the applicant said that in Sri Lanka he had been employed in assisting his father who has a shop and plots of land where rubber trees and rice are farmed. He said he lived at Werawatta from December 1977 to November 2001 as stated in his application.

He described the role of his father as secretary of the SLFP area branch. His father would attend monthly meetings with secretaries and presidents and with MPs, and would discuss welfare work in the local area. The applicant described his own role with the SLFP. He claimed he used to organise meetings and during election time he and other members would fix posters.

The applicant claimed he has problems because he worked for the parties. He and his father were working for the People's Alliance (PA) and later their MP crossed over to the UNP. He and his father crossed over along with their MP two or three months before the applicant left Sri Lanka. He explained that they had belonged to the SLFP which was part of the PA coalition. A number of PA members crossed over at the same time. His father did not do much work for the UNP after they crossed over because he is 55 years old. The applicant claimed that he worked as a UNP committee member for two or three months before he left Sri Lanka. The applicant said he worked hard for the UNP because people in their area accepted him and his father." [SLFP: Sri Lankan Freedom Party; UNP: United National Party.]

5. The Tribunal then noted that it had asked the applicant what he thought would happen to him if he returned to Sri Lanka. Its summary of his evidence continued:

"He responded that he was not certain what would happen to him about his life. He was asked which threat to his life he was talking about. He responded that the PA people are angry with him and want to take revenge. The Tribunal put to the applicant that when he crossed over he would know that the PA people would be upset, and he responded that at the time he did not think about it. The Tribunal put to him that it was puzzled why he went to the UNP when he had claimed he had been receiving threats from them. When the applicant denied that he had claimed this, the Tribunal put to him his statement which it had read to him earlier to check that it was correct. He responded that the UNP had threatened him when he was with the PA, and said that in Sri Lanka politics are different. He said that the threats from the UNP were just minor threats, but the PA threats were different because they came with arms. Death threats from the UNP had come by telephone.

The Tribunal asked him whether he had reported the threat from the PA to the police. He said that because of his fear he did not report the threats to the police. The Tribunal put to him that if he did not report this to the police, there are various organisations in Sri Lanka to which he could complain, such as the Human Rights Commission which has a number of branches throughout the country. The applicant responded that these organisations are only in Colombo and suburbs. When asked why he did not go to Colombo or telephone, he responded that in Sri Lanka they do not know much about Human Rights organisations. The Tribunal put to him that he could have complained to the police. The applicant responded that he had received another threat that if he complained to the police he would not have been able to come here. If he lodged a complaint, the MP would come to hear about it and he would have been dealt with by the MP's people. The Tribunal put to him that he could move away to another part of Sri Lanka and he responded that they would come to catch him.

The applicant said that though his father became a member he did not do much for the UNP. The Tribunal put to him that in that case his father would not have been of much use to the UNP when he crossed over. He responded that his father was well known in the area so the PA did not like his father crossing over to the UNP. Asked what the PA did about it, he said that they had just made minor threats to his father not to join the UNP. More threats were made to the applicant because he was active on behalf of the UNP. The Tribunal put to the applicant that his father as an area secretary of the SLFP had attended party meetings with SLFP MPs, party presidents and secretaries, and as such was privy to party policies and confidential information. Because of his father's possession of this information, the SLFP would have serious concerns about him and have made threats against him but the applicant responded that his father was just a member of the UNP." [PA: People's Alliance.]

6. The Tribunal then detailed the applicant's claims to have worked in the UNP interest in an election campaign in the course of which he was threatened by two "PA thugs" immediately before an election meeting on 30 October 2001. The Tribunal noted that the applicant had explained the absence of police or security protection at the time by saying that the Member of Parliament who was to attend the meeting was not expected to arrive until one and a half hours after the incident and that "normally an MP arrives late and security arrives half an hour before him." The Tribunal's summary of the applicant's account of the incident continued:

"The applicant said that two thugs arrived in a jeep that he knew belonged to a PA MP. He did not know the thugs. They dragged him from the platform and said to him not to work for the UNP and that if he worked for the UNP they would kill him and burn down his house. The Tribunal put to him several times that he had given evidence that he was already working for the UNP so why had they not killed him then, but he did not consider this query. He responded that they knew he would be at the meeting. He said that he had heard talk that there were threats from the PA but he did not take any interest in this. It was put to him that the thugs could have come to his house to threaten him. He responded that they did not come to his house. Asked what the 40 or 50 people at the meeting did during this incident, he responded that they were frightened. He then went to a friend's house, but his friend did not want him there, so he went to other friends' houses."

7. The applicant denied the suggestion made to him by the Tribunal that there had been a big change in the political situation in Sri Lanka since the elections of 5 December 2001. He said that despite the UNP's victory in that election, he remained at risk because the PA was angry with him for persuading former PA members to change their allegiance to the UNP. The Tribunal then put to the applicant a series of questions indicating difficulties which it had in accepting his assertion to have been in fear of his life. Its recitation of those questions and the applicant's responses to them was as follows:

"The Tribunal asked the applicant why he did not complain to any of the appropriate authorities when he went into hiding. He said he did not complain to the police because of love of his life. When the Tribunal mentioned to him the other organisations to which he could complain, (as set out below) he said that in those days he did not know much about other organisations. He said that the only person who helped him was his father and this was the only person or organisation from whom he requested help. The Tribunal put to him that he had claimed he had complained and asked for help elsewhere. The Tribunal prompted him that he had claimed he had asked his MP who crossed over to the UNP for assistance. The applicant then recalled that he had told this MP on the telephone of his problem. The Tribunal put to him that it had difficulty in believing that he could have forgotten this. The Tribunal put to him that the MP would have security people protecting him and the applicant agreed. The Tribunal asked him why his MP could not obtain protection for him and he responded that the MP could not give his security people to him to protect him. The Tribunal put to him that his MP did not offer assistance because he did not feel that the applicant was at risk. He responded that the MP knew he was at risk but did not give him any security. The Tribunal put to the applicant that it had difficulty with his evidence that he was at risk; his MP would know of all the different avenues that could assist the applicant. The applicant said the MP was so busy with election work and in protecting himself that he did not care about the applicant. The Tribunal put to the applicant the various avenues of assistance available to which he could complain and seek assistance. It was put to him that the Human Rights Commission had 11 offices around the country. This independent country information is set out below. The applicant commented that mainly the organisations, even the police, are influenced by the political hierarchy."

8. The Tribunal then put to the applicant country information which suggested that members and supporters had been arrested for violence during the 5 December elections. As well, the Tribunal expressed to the applicant its inability to understand why he had not remained in hiding until after the election. The Tribunal's reasons continued:

"He responded that he did not have anywhere to hide. The Tribunal put to him that he had appeared in public on several occasions such as in Colombo, at the Australian High Commission and at the airport. He responded he was only in public view at that time and that he went to the airport at night. It was put to him that the airport is a well-lit and busy place. The applicant said that there are not many people on the roads at night. The Tribunal put to him that he had returned home and that anyone seeking him would be watching his house. Asked where he was hiding at the time he went home, he responded that he went in the night. He left there to come to the airport and was driven there by a friend. Asked again where he was hiding before he came home, he responded in Horana about 15 km from his home. When he went to Colombo to the agency, he and his father travelled to Colombo in the bus. He earlier gave evidence that he lived three or four hours by bus from Colombo. After that he stayed in Bandaragama in Colombo."

9. The Tribunal then referred to two facsimile messages which the applicant had adduced in evidence. Their respective effect which the applicant acknowledged to be based on hearsay, was that the applicant had received death threats from the SLFP and from the PA.

10. Under the heading "Findings and Reasons", the Tribunal made this observation:

"The Tribunal notes that the SLFP to which he claimed he originally belonged, was a member of the PA coalition. The political crisis in Sri Lanka arose when government PA ministers crossed over to the opposition UNP with the result that an election was called for 5 December 2001. The opposition UNP alliance won 109 parliamentary seats and formed a coalition government with the Sri Lankan Muslim Congress ensuring a single seat majority in parliament (`United National Front wins with 109 seats', The Island, 8 December 2001). On 12 December 2001 a 25-member Cabinet including five former PA MPs whose defection led to the dissolution of parliament and the call for an election and ultimately to a change of government was sworn in (`UNF Govt. cabinet sworn in', The Island, 13 December 2001)."

11. After noting that political violence had become common in Sri Lanka around election times, the Tribunal observed that all parties had equal access to the law and public protection. It then referred to further "country information" to the effect that violence had attended elections in Sri Lanka since 1994 but that "these issues have been addressed in relation to the 5 December elections." After noting extensive deployment of police to curb election-related political violence, the Tribunal continued:

"In addition, a week following the election, the police launched a campaign to arrest former PA local politicians and their supporters in their role in election-related violence (Ratanunga S `Sri Lankan police crack down on political bigwigs,' Gulf News, 14 December 2001). Among those named in the above news report were former minister Mangala Samaraweera, former PA deputy minister, D M Dassanayake whose home was raided and a large stockpile of weaponry and bombs seized, Chief Minister of the PA-controlled north central provincial council Berty Premalal Dissanayake from whose guest house used by his son, who was an election candidate, ammunition and weaponry were seized, and where six employees were taken into custody.

Several persons wanted for questioning in relation to election violence had fled the country by 17 December 2001 and action was taken to prevent further suspects from fleeing the country (`Polls violence suspects flee Sri Lanka, The Island, 17 December 2001)."

12. The Tribunal then referred to the establishment of an independent Centre for Monitoring Election Violence ("CMEV") and an enhancement of the powers of the independent Elections Commissioner and concluded:

"From this country information the Tribunal concludes that the government and the authorities do not condone electoral violence. The Tribunal further concludes that they have taken positive steps to protect citizens and the integrity of the electoral system and have continued to take such steps.

General country information indicates that Sri Lanka is a democratic republic and that human rights organisations are active in Sri Lanka, are supported by the government and investigate police and military abuse."

13. The Tribunal then explained its reasons for rejecting the applicant's claims by saying:

"At the hearing the applicant claimed that the recent election of the UNP government had not made a big change in Sri Lanka. He stated that it is just publicity and that the real situation is that there is not a big change there. The Tribunal would expect that someone who allegedly was so interested in politics and who had allegedly put his life at risk by crossing over and working for the UNP would have been more positive and indicated pleasure and satisfaction at the election outcome.

The Tribunal accepts that the applicant is a party member of the UNP. However the Tribunal does not accept the applicant's evidence that he was targeted by the PA and threatened with death. On his own evidence he was nothing more than an ordinary member of the SLFP, although he claimed to help his father when he could. He said that he organised meetings and put up posters for the SLFP. His father was a party official, the secretary of the area branch, who would have the responsibility for meetings. His father was the person who it was claimed by the applicant did full time work in the political field apart from his farm work. The Tribunal finds for all the above reasons that the applicant's political profile with the SLFP was that of a low level supporter at the local level.

The applicant claimed that when he went across to the UNP two or three months before he came to Australia, he became a committee member and organised small rallies and put up posters. He also claimed to supervise a team who over a two-day period erected a stage for a meeting. Given the brief time that the applicant was a member of the UNP, the Tribunal finds that the applicant's political profile with the UNP to be at a low level. It does not accept that the biggest and best organised political party in Sri Lanka (described thus in CZ34305 of 11 March 1999 above) would be short of committee members such as to place the applicant on its area committee immediately after he joined the party. It finds that his activities were at the low level of putting up posters and in assisting in low level tasks. It finds for all the above reasons that he had a low level political profile as a UNP supporter at the local level.

The applicant's father, unlike the applicant, was a person of importance in the SLFP until two or three months before the applicant left Sri Lanka. His duties as secretary of the area branch included attending monthly meetings with presidents, MPs and other secretaries. He would be the recipient of confidential and important party information. He would carry this knowledge with him when he became a member of the UNP. The Tribunal concludes that if the SLFP or the PA had concerns, it would be in relation to his father and the MP and not with the applicant, as found above. The Tribunal does not accept the applicant's explanation that the reason that his father had not attracted adverse attention from his former party was because he was not active in his new party like the applicant but was just a member, and finds this explanation implausible.

Given its findings above, the Tribunal does not accept that the applicant attracted serious adverse attention such as death threats from the PA. It does not accept that because of him his family is under threat. It does not accept that armed thugs threatened to kill him in a few days if he worked for the UNP. On his own evidence he was already working for the UNP and had been doing so for some weeks, so that they had ample opportunity to kill him if that was their intent. On his own evidence the thugs did not come to his house where his father, the former party area secretary, resided and where he and his father had continued to reside after crossing to the UNP. The applicant claimed that he had not taken notice of talk that he would be targeted, but the Tribunal finds it is not plausible that if such talk existed, it would be ignored in a family with a claimed interest in politics.

When the Tribunal expressed doubts that the applicant had attracted death threats from the PA, the applicant made a new claim late in the hearing that he had recruited members from his former party to cross to the UNP and that this had caused the PA to view him adversely. The Tribunal does not accept this claim which is too important to have been overlooked earlier in the hearing and was made to lend support to the applicant's claims."

14. After being referred to the facsimile messages noted at [9] above and making a further reference to "country information", the Tribunal continued:

"The Tribunal finds that the applicant had not complained to the police, the CMEV, the Human Rights Commission or the Elections Commissioner. The Tribunal refers to the above country information including the report of 16 November 2001 in relation to the deployment of police, the DFAT report of

30 December 1996 (CX20894) which states that all parties have equal access to the law and to police protection, the report of

14 December 2001 regarding the pursuit by the police of those who participated in election-related violence, and the reports concerning the roles of the CMEV and the Elections Commissioner. In addition the Tribunal refers to the role of the Human Rights Commission which has 11 branches for ease of access by citizens. Despite the relatively easy and equal access to law enforcement agencies, which have clearly taken various preventative measures in the period leading up to the election, the applicant stated that he did not go to the police about the death threats he alleged he received prior to the upcoming election. He also stated that he did not inform the CMEV or any human rights organisation. The applicant claimed to the Tribunal that all these organisations are influenced by the political hierarchy. He told the Tribunal that `because of love of my life' he did not make any complaints to the police because he was afraid of reprisals from the SLFP if he made any such complaints as they would find out. The applicant also told the Tribunal following prompting that he informed his MP of the threats, but he offered him no advice or assistance as he was busy with the election and did not care about the applicant. It is not plausible that the MP would not be aware of avenues of assistance available in the community and especially for someone who was allegedly so active in the party. Given the country information above, the Tribunal finds that the applicant's failure to seek police protection or other assistance available to him in relation to the claimed death threats as not commensurate with the actions of someone who is in fear for his life. This failure to report such an alleged serious threat to the police allegedly made before 40 or 50 people (which the Tribunal does not accept as plausible), together with the finding by the Tribunal that the applicant is not a committee member of the UNP and has a low political profile affirms the Tribunal's finding that he was not threatened with death by political opponents and that he was not being sought by such opponents so that he was forced to hide.

In addition, the Tribunal finds implausible the applicant's claims that he was not concerned at the alleged death threats that he received from the UNP while he was a member of the SLFP, or the alleged talk of death threats when he moved across, if as he claimed such threats were made. The Tribunal finds for all the above reasons that no such death threats were made to the applicant.

Further, the applicant was one of numerous grassroots party people who moved across when several MPs moved across and precipitated the crisis which led to the elections and the defeat of the PA. There is nothing to distinguish him as a person of any consequence who would attract the serious adverse attention as claimed by him compared with MPs, political leaders and party officials who changed their political allegiance at that time. The Tribunal has found that the applicant has a low political profile.

The Tribunal notes that the applicant indicated a further claim attracting the adverse attention of the PA late in the hearing. The Tribunal did not accept this claim which was made only when the Tribunal queried the credibility of the applicant's other claims. The Tribunal finds the applicant not to be a truthful witness. It finds that he was prepared to extend and embellish his claims to suit the circumstances as they arose. Given that the Tribunal does not accept that the applicant was ever threatened by PA supporters in the way or for the reasons he claimed, the Tribunal does not accept that his family was also threatened by the PA supporters because of the applicant's alleged political activities on behalf of the UNP or that his family members are now being harassed by them. His family members have remained in the family home and his father was contacted there by phone recently on the applicant's behalf, following which the two faxed letters were sent to the applicant. The Tribunal does not accept that the applicant was ever in hiding from the PA supporters, for the same reason.

In addition the UNP is now in power in Sri Lanka. For this reason the Tribunal does not accept that the applicant is unable to obtain the protection of the State. His party is now the party in power in government and the Tribunal does not accept that the police will fail to protect the applicant from any thugs or underworld persons attempting illegal activities that might be directed towards him or his family. The applicant left Sri Lanka four weeks prior to the election. His modest activities as found by the Tribunal took place well prior to the election and are also now well in the past. The Tribunal accepts that harassment of political workers and supporters frequently occurs around election time. It accepts the extent of the election violence in Sri Lanka is such that the authorities cannot prevent all such violence from occurring, nevertheless the Tribunal considers on the basis of all the country information above that there is adequate State protection in Sri Lanka in relation to political violence and that the police force is in an adequate position to provide protection for all citizens including the applicant and has taken all possible steps to do so. The Tribunal finds for all the above reasons that there is adequate State protection available to the applicant. Independent country information indicates that Sri Lanka is a long standing multi-party democracy, that there are various measures in place to combat political violence and that all citizens, regardless of political affiliation, have equal access to law enforcement and avenues of complaint. Given the Tribunal's finding of the availability of State protection, the Tribunal does not accept that the applicant's fear of persecution is well-founded."

15. The Tribunal found the applicant not to have a well-founded fear of persecution because of his political opinion or for any other Convention reason.

Jurisdiction

16. The jurisdiction of the Federal Magistrates Court is set out in s.483A of the Migration Act 1958 (Cth).

17. The errors identified by the applicant in the decision of the Tribunal must be such as to attract relief under s.39B of the Judiciary Act 1903 (Cth.) The enquiry required of the court is whether the approach adopted by the Tribunal was such as to render its decision invalid. That question requires the court to identify the scope within which the Tribunal is empowered to operate pursuant to the terms of the Migration Act 1958 including s.474.

18. Section 474 of the Act is contained in the new Part 8 of the Migration Act consequent upon the enactment of the Migration Legislation Amendment (Judicial Review) Act 2001. The provisions of the new Part 8 apply in respect of judicial review of any decision made under the Migration Act where the application for review was not lodged before the commencement of schedule 1 to the Migration Legislation Amendment (Judicial Review) Act. The application before me was lodged after the commencement of the schedule and is therefore subject to the new regime.

19. The combination of sections 475A and 476 limit the jurisdiction of this court relevantly to that conferred by s.39B of the Judiciary Act 1903 (Cth). That provision includes jurisdiction in relation to any matter arising under any laws made by the Parliament, s.39B(1A)(c). The validity of a decision made by the Tribunal involves such a matter.

20. Section 474 places into the Migration Act a privative clause. Such a clause has been interpreted by the High Court in a line of authority in accordance with the principles of Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 616. In his judgment in that case, Dixon J stated the three pre-conditions to the valid exercise of decision making powers to which such a clause applies:

a) The decision maker is required to have made "a bona fide attempt 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 give to" the decision maker.

21. Thus, a decision maker's decision is protected by a privative clause for only so long as the decision maker does not exceed his or her jurisdiction in the breach of one of the Hickman conditions. In a number of decisions of the Federal Court of Australia, differing views have emerged as to how it is the court should approach the application of the law. The respondent submits that regardless of the approach taken by me, the applicant cannot succeed.

22. I refer to two decisions of Mansfield J, namely SAAD v MIMIA (2002) FCA 206 and SBAE v MIMIA (2002) FCA 479. His Honour's approach in those matters before him was to look first to see whether or not there were any matters which would give rise to relief under s.39B of the Judiciary Act 1903 (Cth). In SBAE at (17) he said:

"The assessment of the merits of the applicant's claims is fundamentally the function of the Tribunal. The court is not entitled to revisit findings made by the Tribunal, and to substitute its view of appropriate findings for those made by the Tribunal. That is not to indicate that, in this instance, I found different views about matters of fact upon which the Tribunal has made findings. I have not done so. That is not the court's function. It is to indicate that, without error of the kind which would enliven a court's power under section 39B of the Judiciary Act, the sort of matters to which the applicant has referred as noted above do not entitle the court to simply revisit the determination of the Tribunal or set it aside."

23. His Honour would only consider the effect of s.474 of the Migration Act if he found there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B. When he was unable to find such an issue in SAAD, His Honour said (at p.23):

"Consequently, in my view it is not necessary to address the application of section 474 in the particular circumstances."

24. Whilst this approach has not been universally adopted, it has received the support of Marshall J in VAAC and MIMA (2002) FCA 573 and Allsop J in NABL and MIMA (2002) FCA 102. In other cases, a differing approach has been taken. In particular I refer to the decision of Heerey J in Turcan and MIMIA (2002) FCA 397 where His Honour stated (in para 46):

"In my view, the correct approach is to first consider whether section 474 applies. If it does, the court need not, indeed should not, go any further. The court should not assess the case as if section 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in terms goes to the court's jurisdiction and is to be applied at the threshold."

25. The Full Court of the Federal Court shall very shortly determine which approach is correct. I shall adopt the "wider approach" of Mansfield J. Counsel for the applicant referred me to matters as set out in the applicant's contentions of fact and law which were emphasised in oral submissions made. All of the matters raised in submissions were matters which had been raised with the RRT. Counsel for the applicant urged that the Tribunal had made a jurisdictional error in that it had reached a mistaken conclusion in determining that the applicant was not involved in political activities in Iran.

26. The question for the court is whether there are any matters raised by the applicant that individually or collectively establish jurisdictional error sufficient to satisfy review under s.39B of the Judiciary Act. The ability to grant such relief would then be subject to the provisions of s.474 of the Migration Act.

27. In Craig v South Australia (1995) 184 CLR 163 at 179, Brennan, Dean, Toohey and McHugh JJ said:

"If an administrative 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 power. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

28. In the present case, the Tribunal's decision was open on the evidence and material before the Tribunal.

29. The grounds of complaint raised by the applicant are in substance that the Tribunal:

a) failed to notify the applicant that it proposed to rely on findings that the applicant's political activities with the UNP were "low level" and failed to give the applicant the opportunity to provide additional information to deter the Tribunal from making such findings;

b) focused on the applicant's level of political activity and failed to ask whether a person with a low political profile would be at risk of persecution; and

c) misconceived the test of State protection in that it did not ask whether the Sri Lankan authorities are able to afford the applicant adequate protection from persecution.

30. There was no obligation on the Tribunal to indicate to the applicant that it did not believe particular aspects of his claim, in particular his claims about his membership of a UNP committee and his claims about recruitment of former SLFP/PA members in order to give him an opportunity to present further material or argument in support of those claims. It is the responsibility of the applicant to present to the Tribunal any information or material on which he or she relies in support of his or her application.

31. As Gummow and Hayne JJ observed in Abebe v The Commonwealth (1999) 197 CLR 510 at 576:

"The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contentions that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out."

Callinan J said (at 608 para 295):

"The Tribunal in undertaking its essentially investigative function is not obliged to put, as an adversary in adversarial proceedings might be bound to do, in respect of each and every key matter, an assertion of apparent falsity or unreliability."

32. Similarly, Mason J observed in Kioa v West (1985) 159 CLR 550 at 587:

"The applicant is entitled to support his applicant by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward."

In Re Refugee Review Tribunal; ex parte Aala (2000) HCA 57 at 76, Gaudron and Gummow JJ said:

"There is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is necessary for the Tribunal to put to the applicant the concerns which are inclining the Tribunal towards such an adverse finding. The procedure is inquisitorial and not adversarial. The requirement of procedural fairness did not require that a Tribunal when, pursuant to paragraph (a) of s.425(1), it gave the prosecutor the opportunity to appear before it to give evidence, to treat what transpired `as though it were a trial in a court of law' ".

33. Accordingly, I accept the submission made on behalf of the Minister that the Tribunal was not under any general obligation, whether under the rules of natural justice or otherwise, to notify the applicant of any deficiencies in his case or any aspects in which the Tribunal doubted his claims, let alone to invite the applicant to meet those perceived deficiencies or doubts. In particular the Tribunal was not obliged to notify the applicant of its mental processes or to provide the applicant with an opportunity to comment on its preliminary findings before making its decision.

34. Contrary to paragraphs 29 and 37 of the applicant's contentions and in support of the respondent's contentions, I find that it cannot be said the Tribunal positively misled the applicant in any way. At the outset of the hearing, the member said to the applicant (transcript of hearing page 2 line 39 / page 3 line 3):

"I will be asking you some questions and then I will be giving you the opportunity to tell me anything further you wish to say to help your case. I may not ask you about every claim we have made. If I don't ask you about a particular claim, it does not mean that I am not interested in it or that I think it's not important. It just means there is nothing more I need to know about it.

If you wish to say something about a claim I have not asked you about, you can do that at the end of the hearing. You can also make any further comments at the end of the hearing if you wish to do so."

35. There is nothing in the Tribunal's reasons to indicate that it misinterpreted or misapplied the applicable principles in relation to the application of the "well-founded fear" test. The Tribunal correctly summarised the principles relating to the assessment of whether a fear of persecution is "well-founded", acknowledging that a "real chance" is one for which there is a real substantial basis as distinct from a remote, insubstantial or far-fetched possibility (CB75.3). Contrary to paragraphs 54 to 56 of the applicant's contentions and as relied upon by the respondent in its contentions, I find the Tribunal did not fail to consider the risk faced by the applicant himself as a person with a low political profile in Sri Lanka. Nor did the Tribunal treat the applicant's low level of political activity as itself precluding a finding that he faced a real chance of persecution. The Tribunal's ultimate finding that there was no real chance that the applicant would face serious harm amounting to persecution because of his political opinion (CB93.4) was based on its findings that:

a) the applicant had a low-level political profile;

b) the applicant had not been subjected to violence or threats of violence in the past; and

c) the applicant was able to obtain adequate protection from Sri Lankan authorities.

36. After considering a range of general country information, the Tribunal found that "there is adequate State protection in Sri Lanka in relation to political violence and that the police force is in an adequate position to provide protection for all citizens including the applicant and has taken all possible steps to do so." (CB92.8). These findings were open on the evidence and material before the Tribunal. It is not for the Court to reconsider the correctness of this finding.

37. I do not find that the Tribunal identified or addressed wrong issues or ignored relevant material or relied on irrelevant material. I find that the Tribunal did address the applicant's claim and based its decision upon a proper consideration of material put before it by both the Minister and the applicant. The applicant's complaint is effectively that the Tribunal did not accept his explanations and he seeks to dispute on the merits the conclusions which the Tribunal reached. That alone is not a basis for judicial review. It does not constitute jurisdictional error. Having addressed the matter in this manner, it is now unnecessary to proceed to consider s.474 of the Act in the circumstances of this case.

38. Accordingly, I dismiss the application.

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

Associate:

Date:
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