Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - Allegedly inconsistent RRT decisions - relevance of other RRT decisions.

MZWDX v Minister for Immigration [2004] FMCA 881 (26 November 2004)

MZWDX v Minister for Immigration [2004] FMCA 881 (26 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWDX v MINISTER FOR IMMIGRATION
[2004] FMCA 881




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - Allegedly inconsistent RRT decisions - relevance of other RRT decisions.




Federal Court of Australia Act 1976, ss.23, 32

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), s.474

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

Eloujenko v Minister for Immigration & Multicultural Affairs [2001] FCA 980

Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

NABW v Minister for Immigration & Multicultural Affairs [2002] FCA 464

NARY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1255

NARY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 45

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

Randhawa v Minister for Immigration & Ethnic Affairs (1994) 54 FCR 437

SDAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 812

SGBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 709

Soboleva v Minister for Immigration & Multicultural Affairs [2001] FCA 528

Soboleva v Minister for Immigration & Multicultural Affairs [2001] FCA 1633

Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620

WAEY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1314

Applicant:
MZWDX




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MLG 265 of 2004




Delivered on:


26 November 2004




Delivered at:


Melbourne




Hearing date:


5 October 2004




Last Submission:


19 October 2004




Judgment of:


Riethmuller FM




REPRESENTATION

Counsel for the Applicant:


Mr Condliffe




Solicitors for the Applicant:
Victoria Legal Aid




Counsel for the Respondent:
Mr Hay




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) The applicant's application be dismissed.

(2) The applicant do pay the respondents costs fixed in the sum of $7,500.00

.FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MLG 265 of 2004

MZWDX



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an application pursuant to section 39B of the Judiciary Act 1903 (Cth) and sections 23 and 32 of the Federal Court of Australia Act 1976 that has been remitted to the Federal Magistrates Court of Australia for hearing. The application seeks a review of the Refugee Review Tribunal (`the RRT') decision with respect to the applicant of 20 February 2004.

2. The applicant is a citizen of Sri Lanka. He arrived in Australia on

10 January 2003. On 13 March 2003 the applicant sought a protection visa from the respondent. On 30 June 2003 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (`the Minister') declined to grant the applicant a protection visa, following which the applicant applied to the RRT on 24 July 2003. On 28 January 2004 the RRT affirmed the decision of the Minister's delegate not to grant a visa.

3. Throughout the process before the Minister's delegate and the RRT the applicant was represented by an immigration consultant.

4. The applicant was born in Sri Lanka on 3 October 1971. He is a Tamil and Roman Catholic. After finishing his schooling in Sri Lanka in 1991 he worked as a labourer until 1995. He left Sri Lanka on 24 November 2002 on a ship on which he was a crew member. He arrived in Australia on 10 January 2003 and thereafter applied for refugee status.

5. His claim for refugee status arises out of the circumstances in Sri Lanka as a result of the conflict between the government of Sri Lanka and the LTTE (the Tamil Tigers).

6. The RRT accepted that for a number of years (from 1990) the applicant had suffered serious harm that amounted to persecution under the Refugee Convention. The RRT also accepted that subjectively the applicant believed he faced risks to his safety if he returned to Sri Lanka as a young male Tamil.

7. However, the RRT formed the view that there was no specific interest in the applicant by government authorities, and as he had not taken an active role in LTTE activities he no longer faced a real chance of similar harm to that he had suffered in the past in LTTE controlled areas. The reasons for the RRT's view that circumstances in Sri Lanka had changed was based upon country reports to the effect that a truce had been struck between government and the LTTE. The RRT set out in some detail the country information that it relied upon at pages 10 to 15 of the RRT member's decision.

Real chance of serious harm

8. The applicant challenges the RRT's findings that he does not now face a real chance of serious harm sufficient to constitute persecution under the Convention.

9. The applicant raises an argument that because the RRT dealt with the extent of his interest to the authorities, that it thereby overlooked the proposition that he was generally at risk even if he were not a person of specific interest to the authorities. In this regard Counsel for the applicant referred specifically to one passage at the bottom of page 17 of the RRT's reasons which states as follows:

Similarly [the RRT] does not accept the fact [the applicant] was detained and questioned in the past as part of general round ups of Tamils makes him of future interest to authorities, or that it would impact on future treatment by authorities. In this regard the Tribunal is not satisfied such past action indicated a specific interest in the applicant himself, and considers his release on those occasions, and his ability to subsequently freely travel out of the country is inconsistent with there being any specific official [interest] in him.

10. Clearly this paragraph concludes that the authorities no longer have a specific interest in the applicant, and provides a foundation for the RRT's conclusion that he is not at risk under the convention from the adverse interest of the authorities. This is a finding of fact and not reviewable before me.

11. The applicant argues that the RRT has not gone on to consider whether or not he is at risk in a convention sense simply because he is a young Tamil male, even though the authorities may not have a specific interest in him personally.

12. The RRT member in his decision at page 18 states as follows:

Whilst noting the applicant's stated fear based on past adverse treatment by authorities, the Tribunal finds that in light of such developments, he does not now face a real chance of further serious harm sufficient to constitute persecution by authorities because of his Tamil ethnicity, his actual perceived political opinion, or any other convention related reason.

13. This conclusion is supported by the RRT's findings on pages 16 and 17 as follows:

The Tribunal is also satisfied there has been nothing in the behaviour or profile of the applicant since that time which would create any official adverse interest in him since he last left Sri Lanka.

The Tribunal is satisfied that whilst country information above establishes there have been serious human rights abuses by authorities of Tamils in Sri Lanka in the past, there has been substantial improvement in that situation in recent times. In reaching this conclusion the Tribunal takes into account the United States Department of State Human Rights Report for 2002 (CX 75980), which indicates the government generally respected the human rights and citizens, and unlike previous years there were no disputed reports of security forces committed extrajudicial killings and no reports of disappearances. Whilst in the past, arbitrary arrest and detention were problems, there were no reports of arbitrary arrests or detentions during the reporting period. That report also noted there were no large-scale arrests of Tamils during the year, and whilst there were detentions of Tamils in the Colombo region for questioning, the vast majority of checkpoints have been removed in January 2002, and reports of regular mistreatment by security forces had largely ceased...

...The Tribunal also accepts country information set out above which suggests authorities in Sri Lanka are attempting to rectify past difficulties in treatment of Tamils by means of recruitment of Tamil speaking police (CX 84 170), as well as involving senior Tamil representatives in government committees such as the CIUAH (CX 75980).

In the light of that information, the Tribunal considers there have been substantial improvement in treatment of Tamils by authorities in recent years, as well as the development of a peace process designed to achieve some longer term resolution to continuing fighting. Whilst that process has had a variable history in terms of setbacks, including recent difficulties such as those referred to by the applicant in his post hearing submission and supporting materials, it nevertheless continues to exist. The Tribunal therefore does not accept the assertion by the applicant that the authorities currently secretly arrests innocent Tamils and tortures them, or that such treatment is supported or condoned by Government.

14. It is clear that the RRT member specifically considered the claim on both basis (a personal interest in the applicant and persecution of young Tamil men) before making his general conclusion that he was not satisfied that the applicant now faced a real chance of further serious harm from the authorities.

15. Similarly the RRT member concluded that the applicant was of no real interest to the LTTE, and that given the current circumstances in the country he did not face a real chance of suffering similar harm to that which he had suffered in the past if he returned to an LTTE controlled area.

16. There is a factual foundation for all of the findings made by the RRT. The RRT does not appear to have misconstrued the task that it was required to undertake in determining whether or not the applicant fell within the definition of Refugees Convention and Refugees Protocol and consequently (with relevant modifications) sections 91R and 91S of the Migration Act.

Ability to travel

17. The applicant also submitted that the findings of the RRT with respect to the applicant's ability to enter and leave Sri Lanka were not used appropriately by the RRT member in coming to his decision. The RRT member noted that the applicant was able to obtain a passport and travel outside of the country on two occasions. This was evidence relied upon by the RRT member in concluding that the applicant was not of adverse interest of the authorities. This led to the argument that the applicant maintained that the RRT member misconstrued the application of sections 91R and 91S by treating the case as a case about whether of not the applicant was of interest to the authorities rather than whether he is simply a member of a group that were often, or on a random basis, the victims of serious harm for a convention related reason.

18. The ability of a person to freely travel in and out of their home country is relevant circumstantial evidence going towards whether or not the regime in force in that country is treating them in an adverse way and alternatively whether they are of interest to the authorities. Whilst, of itself, a finding as to the ability to travel is not conclusive it is evidence relevant to the ultimate conclusion that the RRT must reach.

19. There is nothing in the reasoning process of the RRT member to suggest that the member allowed his finding as to the applicant's ability to travel in and out of Sri Lanka to become determinative of the ultimate question that he had to answer under the Act.

20. I do not find the RRT member erred in this regard.

Relocation

21. Even if the applicant succeeded with respect to the claims that he had a well founded fear of returning to his birth place in Sri Lanka the RRT concluded that he had the option of returning to Colombo. On this basis the RRT found that the applicant would not have a well founded fear of persecution as required to obtain a protection visa. This flows from the principles set out by the Full Court of the Federal Court in Randhawa v Minister for Immigration & Ethnic Affairs (1994) 54 FCR 437.

22. The applicant complains that the RRT ought not to have accepted that he could have returned to Colombo, as he says that there was also a real chance that serious harm would befall him in Colombo for a convention based reason. The RRT concluded:

The Tribunal accepts the possibility of further contact between the applicant and the LTTE if he attempted to live in the northern part of Sri Lanka which remains under LTTE influence. It notes however, that from 1999 onwards, he had largely lived either outside Sri Lanka, or in the Colombo area. Whilst the applicant says he would not be able to safely live in Colombo, the Tribunal notes this is inconsistent with the fact he lived in that location for some time before travelling overseas.

The Tribunal is satisfied that he could again reside in Colombo, as do many persons of Tamil ethnicity, without any real chance of persecution by the LTTE. In reaching this conclusion the Tribunal takes into account the fact the applicant has lived in that city before free of persecution or harm from LTTE. It also accepts country information above (CX 81216) as supporting the proposition that as a Tamil he could again live in that location, as have many former Northern Tamils in recent years.

23. This is a question of fact upon which the RRT has made findings. It is clear that the applicant had some difficulties in Colombo in previous years. The RRT's comments at page 7 were as follows:

He says that as a Tamil youth, he was automatically suspected by authorities of being a supporter of the LTTE, even though he was not. On a number of occasions he says this led to him being detained, interrogated and beaten by authorities, most recently in Colombo in 1999 and 2000. In response to Tribunal questioning, he indicated in many cases he was detained along with a number of other Tamil youths in general arrests or detentions, rather than being targeted personally.

24. It is clear that the RRT finding is referring to more recent years and in the context of persecution by LTTE (having previously found that it was unlikely that there would be persecution from government authorities as a result of the truce with LTTE).

25. In the circumstances this appears to be a complaint about the finding of fact by the RRT member, rather than a matter that would justify judicial review. It is not open to this court to review the merits of the decision.

Medical certificate

26. The applicant raised as a point of complaint about the decision the fact that the decision maker did not specifically refer to a referral letter by a general practitioner to an ear, nose and throat specialist which was provided to the RRT during the hearing process.

27. The referral letter confirmed that the applicant had a perforated ear drum, and had been suffering from it for 2 to 3 months.

28. It was said by the applicant that this was evidence supporting his allegation that he had been previously been a victim of serious harm that would amount to persecution under the convention.

29. The medical certificate was not referred to by the RRT member in the decision. However, the RRT accepted that the applicant had previously suffered serious harm that would amount to persecution under the convention (see page 15). The fact that the RRT member has not mentioned a piece of evidence (which would have been of very little weight, if any) that supported a finding which was favourable to the applicant, does not appear to me to be a basis for judicial review. Indeed, what different outcome could the applicant have suggested should have flowed from that piece of evidence than a finding in his favour on that initial point.

30. The applicant's Counsel argued that had the further evidence been relied upon by the RRT member it may have affected the RRT member's finding with respect to the real risk to the applicant in the future. Having regard to the terms of the letter from the general practitioner it appears to me to be inconceivable that this could have impacted upon the balance of the decision made by the RRT member.

Improvement in conditions in Sri Lanka

31. The applicant argued that it was inappropriate for the RRT member to rely upon the country information in order to come to the conclusion that the conditions in Sri Lanka had improved in recent years and that there was no longer a real risk of harm for a convention reason. In particular the applicant relied upon the Judgment of Gauldron J in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 which cautioned against decision makers giving too much weight to what may turn out to be transitory or temporary improvements in country situations. It was accepted by the applicant that past conduct may be relied upon when assessing the likelihood of future conduct as was confirmed in the High Court in Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559.

32. The adviser to the applicant did provide additional material such as BBC articles and other references, which appear in the court book. The tribunal member considered these materials, stating (at page 17):

Whilst that process [the peace process with the Tamils] has had a variable history in terms of setbacks, including recent difficulties such as those referred to by the applicant in his post hearing submission and supporting materials, it nevertheless continues to exist. The Tribunal therefore does not accept the assertion by the applicant that authorities currently secretly arrests (sic.) innocent Tamils and tortures them, or that such treatment is supported or condoned by Government.

33. There is nothing to suggest that the RRT member approached the present case on a cursory or limited basis. The considerations are set out in the material that he relied upon in coming to that conclusion. His discussion of this issue is detailed and cogent.

Inconsistent decisions

34. In this case I have been referred to a number of other RRT decisions on the question of the success of the peace talks:

* N00/32818 of 20 January 2003 where the RRT (Member Duckmanton) concluded that the situation in Sri Lanka remained unstable and that the applicant before her faced a real chance of persecution. Noteably, the applicant in that case had one son who had joined TELO (dying in suspicious circumstances) and another son who had been a member of LTTE since 1991.

* N02/43357 of 26 May 2003 where the RRT (Member Druckman) again accepted that despite the peace process there was a real risk of persecution of a Tamil woman in Columbo. In that case the applicant was a woman who was too old and frail to care for herself, but who had provided the Tamil Tigers with gold, money and meals in the early 1990s.

* N03/47341 of 7 January 2004 where the RRT (Member Short) considered that there was a real chance of hostilities resuming in Sri Lanka with a consequent deterioration in the security situation. The RRT allowed an appeal by a young Tamil male on the basis that there was a real chance of hostilities resuming n Sri Lanka and that the applicant in that case would face a real chance of persecution as a young Tamil male because it would be imputed from his ethnicity and age that he was an LTTE supporter.

35. This case was decided on 28 January 2004. The RRT decision of

26 May 2003 was specifically referred to the Member in this case by the applicant's advisors (see court book p 90) in a letter providing supporting information. The other two decisions were not referred to the Tribunal member for his consideration.

36. Unfortunately the tribunal, in the case before me, has not referred to the decision of the RRT of 26 May 2003 in its reasons, stating only:

The applicant's adviser requested a short delay in determining the matter to enable him to lodge a further written submission addressing various issues, and particularly whether there had been improvement in general Sri Lankan circumstances in recent times. To allow the applicant the opportunity to fully put his case, the Tribunal indicated it would delay the decision for at least seven days to enable the applicant to speak to his adviser and for that further submission to be prepared.

It was initially indicated the Tribunal would not make any decision until at least 12 January 2004, however on that date the nominated adviser contact the Tribunal requesting further time to complete the submission. The Tribunal agreed to that request, and on 16 January 2004 it received a further written submission, and supporting material from a number of "BBC News" articles covering the period 27 November 2003 to 15 January 2004. The submissions restated a number of assertions previously made on behalf of the applicant and claimed that the peace process had failed; that the Government continued to persecute Tamils, and that the LTTE is recruiting young Tamils, and extorting money. It also claimed the applicant could not relocate within Sri Lanka for various reasons. The Tribunal has had regard to those articles and assertions in reaching its decision on this review.

37. If all of these decisions were made by the one person it appears that it would provide a reasonable foundation for an argument of misconduct on the part of the decision maker in the sense discussed by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. Although the specific evidence relied upon on each occasion would need to be considered (at least with the earlier two decisions)

38. Here, however, the decision has been made by a different decision maker from those in the three other decisions referred to, but all members of the RRT.

39. In Soboleva v Minister for Immigration & Multicultural Affairs [2001] FCA 528 (8 May 2001) Moore J said:

21. There is nothing in the Act to suggest that the Tribunal is bound in some way by conclusions reached in previous decisions. Indeed the Act, and in particular s 420, requires that the Tribunal must act in accordance with the merits of the case. As the Full Court explained in Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 the nature of the Tribunal's task in reviewing a decision requires a consideration of all available evidence. In performing that task, the Tribunal cannot, in principle, be constrained by what it had decided in earlier cases.

22. The question of consistency between Tribunal decisions was discussed by Marshall J in Ibrahim v Minister for Immigration & Multicultural Affairs [2000] FCA 351. In that case, his Honour was concerned with a decision in which the Tribunal had found that Mogadishu was safe for members of Mr Ibrahim's clan, despite the Tribunal having apparently decided the opposite some months earlier, in a decision concerning Mr Ibrahim's sister. Marshall J noted the principle espoused in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 that consistency is an important element of good administrative decision making but found:

"The success of Mr Ibrahim's sister's application did not mean that the RRT was bound to grant Mr Ibrahim a protection visa. Its task, in Mr Ibrahim's case, was to consider the evidence before it, including the country information and come to a view about the merits of the application in accordance with well established legal principles referred to by the High Court of Australia in Chan v Minister for Immigration (1989) 169 CLR 379. Further, whether a person has a relevant well founded fear of persecution must be considered at the time of the decision. For example, changed circumstances in a country may result in a claim that may have succeeded at a previous time being a claim unlikely to now succeed as a consequence of the change. The country information from the UK Home Office and DFAT referred to in the RRT's reasons was not available to the member of the RRT who decided the application of Mr Ibrahim's sister. There is no substance, in my view, in Ms Mortimer's submissions on the "consistency of approach" issue.

23. However, the question remains whether when the tribunal reaches a decision which involves findings which are apparently or arguably inconsistent with findings in an earlier decision, it is required to address that apparent inconsistency, at least in cases where the earlier decision has been referred to by a party as material relevant to the review. Section 430 of the Migration Act requires the Tribunal to set out its findings on material questions of fact and identify the material on which those findings are based. The Full Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 ("Singh") held that a failure to comply with s 430 is a reviewable error of law of the type contemplated by s 476(1)(a), that is an error of law whereby procedures required by the Act to be observed in connection with the making of a decision are not observed. As to what matters represent material questions of fact on which the Tribunal is obliged to set out its findings, the Full Court held (at 482) that:

"... if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one. But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with: see Durairajasingham at pars [65] and [67].

24. The applicants submitted that, in not following earlier Tribunal decisions, the Tribunal evidently made a material finding of fact central to its final conclusion, namely that the situation in Russia for Jehovah's Witnesses had changed in the intervening months between decisions. It was argued that this finding of fact, and the evidence on which it was based, should have been explicitly addressed in the Tribunal's reasons for decision.

25. In a not dissimilar case, Witharana v Minister for Immigration & Multicultural Affairs (Unreported, Federal Court, Wilcox J, 21 December 1998), Wilcox J considered whether the Tribunal was obliged, in reviewing and rejecting a man's application for a protection visa, to refer to and distinguish the successful applications of his mother and sister. Wilcox J held:

"I do not think it was an error of law for the member hearing the present case to fail to refer to the other decision. Section 430 of the Migration Act 1958 requires that the Tribunal set out its findings on material questions of fact and identify of the material upon which those findings are based. The Act does not require the Tribunal to refer to all the material to which it is referred before, during or immediately after a hearing. I think the member hearing the present case was entitled to take the view that the decision given by his colleague in the earlier case was irrelevant to the task he had to perform. The member had to make up his own mind on the basis of the material before him. It would have been quite improper for him to be influenced by the finding of a colleague in relation to a factual matter that depended upon different evidence. This is just as true where the earlier finding was in favour of granting a visa as it would be if the earlier claim for refugee status had been rejected.

If the member hearing the present case thought the earlier decision was irrelevant, he was entitled to disregard it in his reasons for decision. I do not think that the failure to make any reference to the earlier decision constitutes an error of law or a failure to provide substantial justice to the present applicant."

26. However, where an earlier decision is both factually similar and temporally proximate to the circumstances of the application before the Tribunal and the earlier decision has been referred to and relied on by a party but not considered and referred to by the Tribunal, it may arguably give rise to error reviewable in this Court. That arguably is the position not because the Tribunal should, prima facie, follow earlier decisions but because an earlier decision of this type might be viewed as a vehicle used by a party to raise material questions of fact about which the Tribunal should, as required by s 430, make findings and set out the evidence in support thereof: see Singh at [47] and [60].

40. Whilst an appeal was lodged from this decision it was struck out for want of prosecution: Soboleva v Minister for Immigration & Multicultural Affairs [2001] FCA 1633.

41. In NABW v Minister for Immigration & Multicultural Affairs [2002] FCA 464 (15 April 2002) Sackville J said:

13 So far as the applicant's complaint relating to the RRT's failure to refer to its earlier decisions is concerned, the general principle is that the RRT is not bound to refer to such decisions merely because they raise similar issues to those presented by the particular application for review. The question for determination by the RRT is whether it is satisfied on the materials before it that the applicant has a well-founded fear of persecution if returned to his or her country of nationality: Vassilieva v Minister for Immigration and Multicultural Affairs [2001] FCA 733; Eloujenko v Minister for Immigration and Multicultural Affairs [2001] FCA 980, at [23], per Hely J (leave to appeal refused: Eloujenko v Minister for Immigration and Multicultural Affairs [2001] FCA 1791). The RRT is not bound by conclusions reached in previous decisions and is entitled to disregard those decisions if it considers them to be irrelevant: Soboleva Minister for Immigration and Multicultural Affairs [2001] FCA 528, at [21]-[25], per Moore J.

14 The highest that the matter can be put for the applicant is suggested by another passage from the judgment in Soboleva v Minister, at [26].

"where an earlier decision is both factually similar and temporally proximate to the circumstances of the application before the Tribunal and the earlier decision has been referred to and relied on by a party but not considered and referred to by the Tribunal, it may arguably give rise to error reviewable in this Court. That arguably is the position not because the Tribunal should, prima facie, follow earlier decisions but because an earlier decision of this type might be viewed as a vehicle used by a party to raise material questions of fact about which the Tribunal should, as required by s 430, make findings and set out the evidence in support thereof".

15 This passage refers to the law as it was prior to the repeal of the former Part 8 of the Migration Act and, in particular, by reference to the authorities interpreting s 430 of the Migration Act (which, in any event, were overruled by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1). Even if the passage represents the current law relating to jurisdictional error it would not help the present applicant. It is true that the applicant's representative referred the RRT to a recent decision of a differently constituted RRT concerning a successful application by a family of Jehovah's Witnesses from Russia. But the RRT in the present case expressly referred to this decision and noted that the circumstances in that case were different from those of the applicant.

42. In NARY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1255 (6 November 2003) Moore J considered a situation where there were two apparently inconsistent tribunal decisions proximate in time but relating to different applicants and said:

10. At the hearing, the applicant was unrepresented. His principal complaint was that a friend, who had been, or was in, a similar position had been successful in establishing an entitlement to a protection visa. However other than possibly in exceptional circumstances (which are not present here), the fact that the Tribunal has not referred to, relied on or decided a matter consistently with, other decisions of the Tribunal is irrelevant: see Soboleva v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 353, Eloujenko v Minister for Immigration & Multicultural Affairs [2001] FCA 980 and Vassilieva v Minister for Immigration & Multicultural Affairs [2001] FCA 733.

43. It is apparent for the appeal decision in NARY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 45 (4 March 2004) that the particular tribunal decision turned on a rejection of the applicant's evidence.

44. In Eloujenko v Minister for Immigration & Multicultural Affairs [2001] FCA 980 (27 July 2001) Hely J said of a tribunal member who it was alleged had made previous inconsistent decisions as to the persecution of Jehovah's Witnesses in Russia that:

23. In the present case Ms O'Brien did not refer to her own earlier decisions on applications by Russian Jehovah's Witnesses, or to decisions of other RRT members on such applications. But there is no particular reason why she should do so, bearing in mind that the issue for her determination was whether RRT was satisfied on the materials before it that this applicant has a well-founded fear of persecution if returned to Russia. There is no error of law, or jurisdictional error in failing to refer to these other decisions: Vassilieva v Minister for Immigration & Multicultural Affairs [2001] FCA 733; Soboleva v Minister for Immigration & Multicultural Affairs [2001] FCA 528. Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 does not require RRT to enquire whether there ever was a time when Jehovah's Witnesses were persecuted in Russia, and if so, to establish when and how circumstances changed. What is required is RRT's assessment of the position at the present time.

24. Ms O'Brien accepted that in Russia today Jehovah's Witnesses may attract hostility or even minor verbal or physical abuse at the hands of elements in the Russian population. But she was not satisfied that Jehovah's Witnesses are denied adequate state protection for reason of their religion. In the introductory section of its reasons RRT said:

"The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality."

25 The notion of adequate state protection does not require that the state must be able to guarantee the safety of the person or that the person will be immune from harm; rather the question is whether there is a reasonable willingness on the part of law enforcement agencies and courts to detect, prosecute and punish offenders: Minister for Immigration & Multicultural Affairs v Tas [2000] FCA 1675 [55]. If protection is available from the country of nationality, fear of persecution is not well-founded: Minister for Immigration & Multicultural Affairs v Prathapan (1998) 86 FCR 95, 100.

26. Ms O'Brien accepted that the applicant was involved in some incidents in which he was assaulted but:

"... independent country information, including from the Jehovah's Witnesses themselves, does not suggest that Jehovah's Witnesses are denied adequate state protection for reason of their religion."

The fact, assuming it to be a fact, that in the other six cases which Ms O'Brien heard the applicants complained of some form of ill treatment attributable to their religion, does not mean that Ms O'Brien came to an erroneous decision in the present case. Still less does that fact, assuming it to be a fact, reveal any reviewable error.

45. On an application for leave to appeal the Full Court (Eloujenko v Minister for Immigration & Multicultural Affairs [2001] FCA 1791) said:

9. ... With respect, we agree with his Honour that no arguable contention is made out that the RRT's decision was affected by actual bias by its alleged failure to be consistent with the RRT decisions concerning applicants in other matters who were also Russian Jehovah's Witnesses.

46. In SGBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 709 (16 July 2003) Selway J considered this issue and said:

27. It is trite to say it is undesirable that similar cases result in different conclusions. In this case the appellant called as a witness a person who, on the face of it, was in a similar situation to him, but who had been granted a protection visa by the same delegate who rejected the application by the appellant. The only obvious difference was that the other unaccompanied youth was only 13 years old. The appellant also referred to other decisions which, he said, also involved unaccompanied youths where protection visas had been given.

28 . These cases were brought to the attention of the Tribunal member. As is apparent from the transcript they obviously caused the member some concern:

�The other thing that your advice has rightly pointed out is that there are not only decisions of delegates approving people for temporary protection visas, but in fact recent decisions of certain members of this tribunal which have done the same thing.

...

And I'm aware of those decisions. I was telling your adviser that every single Afghan decision that's made by the Tribunal was sent to all the members of the Tribunal, so we're reading each other's decisions nearly every day.

...

And the decisions by the particular member of the Tribunal referred to in your adviser's submission I've read very carefully...

...

... but it must be appreciated that each member of this Tribunal is independent and not bound by what other members do.

...

At the same time, that's extremely concerning to me if decisions are... different decisions are being made on cases where the facts are essentially the same.

...

Anyway I want you to know that we are taking these sorts of things very, very seriously.

...

The other thing that we were just discussing and I was conscious of this... when I was talking to you about those three reports, I understand that was a lot of difficult information for you to have to deal with.'

29. Furthermore, in the Tribunal's reasons, the Tribunal refers to this argument and to some of the decisions said to be inconsistent.

30. Dr Churches argued that it was necessary, at the very least, for the Tribunal to give its reasons for distinguishing the previous decisions. He also argued that principles of fairness required that the appellant be dealt with in the same way as others. He relied on English decisions, such as Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 651G. He also relied on dicta from decisions of this Court, such as Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, 206-208 and Bellinz v Federal Commissioner of Taxation (1998) 84 FCR 154 (�Bellinz'). I do not find these decisions to be of any assistance in this context.

31. The law in Australia is clear - judicial review under s 39B of the Judiciary Act 1903 (Cth), based as it is on s 75(v) of the Commonwealth Constitution, is only available for jurisdictional error. This has been confirmed most recently in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 and in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30. Jurisdictional errors are to be identified by looking at the statutory context. Whatever may be the position under other statutory schemes (such as, perhaps, the review of taxation decisions considered in Bellinz), equality of treatment is not an essential pre-condition to jurisdiction under the Act. In the context of judicial review of decisions under the Act it is well nigh impossible to see how any such pre-condition could be implied in light of s 474 of the Act. Consequently, no jurisdictional error arises simply because the Tribunal, or a delegate, reaches a different result in a similar case.

32. In fact under the Act the Tribunal is required to act independently. See WADZ v Minister for Immigration and Multicultural Affairs [2002] FCAFC 118 at [9]-[10]. It is not bound, whether on questions of law or fact, by its own previous decisions. It is responsible always for determining the actual case before it on the law and facts as they are at the time of decision. It would be preferable if that did not result in inconsistent decisions, but if it does then that is what the Act clearly permits, save only for jurisdictional error. As Brennan J famously remarked in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36: �the court has no jurisdiction simply to cure administrative injustice or error.' It is not enough to identify apparent unfairness. It is fundamental to identify a jurisdictional error.

33. This does not mean that the Tribunal can ignore similar previous decisions made by it when they are relied upon by an applicant. For example, if the Tribunal had a practice of following its previous decisions then it may well be arguable that that practice could found a legitimate expectation that the Tribunal would continue to follow its previous decisions in a similar case. But even if that is conceded, it would do no more than give to an applicant who relied upon the previous decision a right to be heard as to whether or not the previous decision should be followed. However, the written submission made on the appellant's behalf to the Tribunal indicates that the appellant's advisers knew that the Tribunal was at liberty to depart from its previous decisions. And the Tribunal member made this perfectly plain to the appellant at the hearing. As Dr Churches conceded, there was no breach of the Tribunal's obligation to afford a fair hearing to the appellant.

34. In my view there was no jurisdictional error on this ground.

47. In WAEY v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1314 Lander J (on an appeal from a Federal Magistrate) came to the same view, stating:

30. He [the Applicant] argued before the [Federal Magistrate] that the decision was wrong because it was inconsistent with other decisions of differently constituted Refugee Review Tribunals. The grounds of appeal before me raise the same matter.

31. There are subtle differences between the circumstances relied upon by parties for review of the Minister's decisions in refusing to grant protection visas. Those subtle differences will impact upon different minds and in different ways. To some members those differences will be more important than others.

32. In my opinion, the fact that one person might be granted a protection visa in circumstances which are similar to another who is not granted a protection visa is not a ground to set aside the administrative decision if otherwise the decision has been made according to law: SDAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 812 at [23] and SGBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 709 at [26] - [34]. It is not a matter which can be reviewed by the Court because it is not a matter for judicial review.

33. In my opinion the appeal must fail.

48. In SDAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 812, von Dousa J said:

23. In the course of argument the applicant made a general complaint that whilst his claim for recognition as a refugee had been rejected, other non-citizens from Afghanistan had been granted refugee status at about the same time as the Tribunal's decision. No particulars of the other matters were given. Possibly the applicant was referring to two matters decided by differently constituted Tribunals which his migration agent had cited to the Tribunal. This complaint does not raise a ground for judicial review, but as the applicant expressed his concerns about apparently unequal treatment I mention the topic. It seems to me on the limited information contained in the court papers that the explanation may well lie in the date when the different matters were heard and determined by the Tribunal. The situation in Afghanistan, as revealed in the country information relied on by the Tribunal, was changing rapidly at the end of 2001 and in January 2002. It is understandable that a particular Tribunal deciding a matter at those times may have concluded that the risk of persecution to a person of Hazara ethnicity and Shi'a religion returning to Afghanistan was not remote. Further, each case has to be decided on the merits, and it is also possible that the explanation lies in the fact that stronger claims were made by other applicants and accepted by the Tribunal. I can do no more than record the applicant's complaint.

49. It appears clear that on the authorities set out above, the two RRT decisions that were not referred to the tribunal member in this case can not be relied upon as a basis for judicial review. Whilst it is unfortunate that there are two RRT decisions in the same month that do not sit well together, this is not a basis for judicial review. It may be that the applicant in N03/47341 was simply the beneficiary of an overly generous view by the particular member in that case. As this is not a merits review process it is not for me to choose a preferable view of the facts as between N03/47341 and the present decision. Indeed it may be that the extent of uncertainty of circumstances in Sri Lanka at present, in so far as it is relevant for any particular RRT decision, will depend upon the background of the particular applicant. That is, there is some level of uncertainty in many countries, and the risk that this creates will differ greatly for different applicants. This is easily seen from the circumstances of the applicant's in the two 2003 RRT decisions referred to in this case.

50. The remaining issue is therefore whether the Tribunal failed to have regard to the RRT decision specifically referred to by the applicant's advisors in their submissions. The relevant passage of the tribunal member's decision is quoted at paragraph �36 of these reasons. The passage does not specifically refer to the previous decision of the RRT. I have had regard to the comments of the High Court in in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 where the Court stated that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued:

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

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

51. It is clear that the Member considered the submission and the attachments. The previous decision was referred to in the submission. The previous RRT decision was decided many months before this decision. The particular circumstances of the applicant in the previous decision were very different to the applicant in this case, and would have impacted upon the Member's findings with respect to the risk to the applicant of returning to Sri Lanka. In all of the circumstances I am not satisfied that the Member in this case failed to have any regard to the previous RRT decision.

52. Even if the Member failed to have regard to the previous RRT decision in this case it is difficult to see that it would have altered the outcome in this case. The previous RRT decision is not evidence in itself - it is no more than another Member's findings, and therefore no more than references to arguments that the Member in this case may or may not have found persuasive. As the circumstances of the applicant in the previous decision were very different to that of the applicant here, and the previous decision was made around 8 months earlier, it is difficult to see that reference to the previous decision would have altered the course of this decision.

53. The member clearly turned his mind to the relevant issues and discussed them at length. The RRT is not required to recount every item of evidence, and every submission in its decision. For example, Fox J, in Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 said:

It is a mistake to conclude simply from the fact that a judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped his attention. It is not in anyone's interests that the judge or Tribunal be expected to set out every consideration which passes through his mind, although some, and usually the most significant, will be expressly dealt with.

54. Similarly, Sackville J referred to the extent of reasons under a previous provision of the Act in Muralidharan v Minister For Immigration And Ethnic Affairs (1996) 62 FCR 402 saying (at 412):

Legislation such as s 166E(1) of the Migration Act does not require the Tribunal to prepare lengthy reasons dealing with every aspect of the evidence. What is required is that the Tribunal set out in "short and measured, but specific terms its findings in connection with" matters relevant to its decision: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 483, approved in Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437 at 444. As Wilcox J observed in Our Town v Australian Broadcasting Tribunal at 481, it is not necessary that the reasons deal with all matters raised in the proceedings; it is enough that the findings and reasons deal with the substantial issues on which the case turns. The standard required is not one of perfection and regard must be had to the composition of the Tribunal, which does not necessarily include trained lawyers: Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157 per Sheppard J.

55. The lack of a specific reference in the decision to the previous RRT decision does not, of itself, demonstrate judicially reviewable error. It is only if the item of evidence (or the argument not mentioned) is of such significance that a failure to refer to it demonstrates a failure to consider whether the RRT had jurisdiction at all. The lack of a reference to the previous RRT decision in the context of this case is not sufficient to found a judicial review. The issue it went to is clearly discussed in detail: the previous decision is not a significant piece of evidence in the context of this case.

56. In the circumstances I therefore dismiss the application for review.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date:
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia