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MIGRATION - Review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed.

VBAS v Minister for Immigration [2003] FMCA 254 (27 June 2003)

VBAS v Minister for Immigration [2003] FMCA 254 (27 June 2003) Last Updated: 14 November 2003 FEDERAL MAGISTRATES COURT OF AUSTRALIA VBAS v MINISTER FOR IMMIGRATION [2003] FMCA 254 MIGRATION - Review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed. Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) Migration Legislation Amendment (Procedural Fairness) Act 2002 Federal Magistrates Court Rules 2001 S157/2002 v Commonwealth of Australia (2003) HCA 2 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Multicultural & Indigenous Affairs v Yusef (2001) 180 ALR 1 Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 611 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 Chan v Minister for Immigration Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Mandavi v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 70 Re Minister; Ex parte Durairajasingham (2000) 74 ALJR 405 at 417 Applicant: VBAS Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS File No: MZ 731 of 2002 Hearing date: 28 January 2003 Further submissions from applicant: 26 March 2003 Further submissions from respondent: 1 May 2003 Delivered on: 27 June 2003 Delivered at: Melbourne Judgment of: Hartnett FM REPRESENTATION Counsel for the Applicant: Mr Fairfield Counsel for the Respondent: Mr Horan Solicitors for the Respondent: Clayton Utz ORDERS The Court orders that: (1) The application is dismissed (2) The applicant pay the respondent's costs to be taxed pursuant to the Federal Court Scale of Costs in default of agreement. (3) It is certified that pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE MZ 731 of 2002 VBAS Applicant And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent REASONS FOR JUDGMENT 1. This matter was transferred from the Federal Court of Australia by order of Kenny J made 3 July 2002. 2. The applicant filed an application for an order of review on 27 February 2002. An amended application was filed on 30 May 2002. The applicant sought relief under s.39B of the Judiciary Act 1903 (Cth) on the grounds as set out in Section B of his amended application. Each of the parties filed contentions of fact and law and supplementary contentions. The respondent filed the Court Book. I am grateful to each Counsel for their thoughtful and helpful contentions and submissions and in particular the Court acknowledges the pro bono assistance provided to the applicant by his Counsel, Mr Fairfield. History 3. The applicant was born on 17 December 1977 and is a citizen of Sri Lanka of Sinhalese ethnicity. He arrived in Australia on 5 November 2001 as a holder of a Class TE (cultural/social (temporary)) sub-class 420 (entertainment) visa, (`entertainment visa') which was due to expire on 30 November 2001. 4. Soon after the applicant's arrival on 5 November 2001 a delegate of the respondent cancelled the applicant's entertainment visa under s.116(1)(b) of the Migration Act 1958 (`the Act') on the basis that the applicant was not a genuine entertainer. 5. On 9 November 2001 the applicant lodged an application for a protection visa [CB 1-19, 44]. He claimed to fear persecution from members or supporters of the United National Party (`UNP') for reasons of his involvement with and support of the Peoples Alliance (`PA'). 6. On 6 December 2001 a delegate of the respondent refused to grant a protection visa to the applicant [CB 46-58]. 7. On 30 January 2002 the Refugee Review Tribunal (`the Tribunal') affirmed the delegate's decision [CB 88-100]. The Tribunal found that the applicant did not have a well-founded fear of persecution for reasons of his political opinion, or for any other Convention reason [CB 100]. The Refugee Review Tribunal Hearing 8. The applicant claimed as accurately set out by Counsel for the applicant: a) That he was a supporter of, and worker for, the PA political coalition in Sri Lanka. He claimed relevantly that, as such, he had been targeted by supporters of the rival UNP. He claimed that he had been threatened, both in person and by telephone, that he would be killed if he did not cease his political involvement; b) That on 3 April 2001 he had been abducted at night by four UNP supporters in a jeep; that he had been assaulted and that his arm had been broken. He claimed that he thought he had been detained for more than an hour. He claimed that he knew one of his assailants and that although they had let him escape with his life on that occasion, they would be after him in the future; and c) That, after being dumped by his assailants, he had been hospitalised for six days as a result of his injuries. He claimed that, as a result, he did not undertake any further political activity and that he left Sri Lanka in early November 2001. The applicant claimed that he would be targeted upon his return to Sri Lanka and that he would be killed because of his political involvement with the PA. 9. I adopt the summation of the Tribunal's findings as succinctly set out in the respondent's contentions, namely: a) The applicant was a low-level supporter or member of the PA, whose involvement was limited to voting for it, assisting with practical support tasks during election campaigns and attending rallies. Further, based on the applicant's knowledge of recent elections, the Tribunal found that the applicant did not have any involvement in party affairs outside the October 2000 election campaign [CB 98.3]. b) The Tribunal accepted that the applicant might have received threatening phone calls around the time of the October 2000 election. However, given that no harm had occurred to the applicant, the Tribunal found that either the applicant had exaggerated the frequency of those calls, or that the callers had no serious intent to harm him [CB 98.7]. c) Accordingly, the Tribunal found that the phone calls and threats did not constitute persecution within the meaning of the Convention, nor did they involve `serious harm' within the meaning of s.91R of the Act [CB 98.9]. d) The alleged abduction and assault of the applicant by UNP supporters in April 2000 was an isolated incident, which was not followed by any further attempt to harm the applicant [CB 99.1]. e) The Tribunal was not satisfied that PA supporters would seek to harm the applicant because he had withdrawn from active involvement with the party after April 2001 [CB 99.2]. f) The Tribunal noted that the applicant had not reported the assault to the police and found that any perceived failure of police protection was therefore nothing more than speculation [CB 99.6]. g) Accordingly, the chance of the applicant coming to serious harm upon return to Sri Lanka, either on the basis of his past involvement with PA or if he were to resume his political activities, was remote [CB 99.8]. The chance that the applicant would face serious harm was further limited by the fact that there was a measure of police action in relation to politically motivated violence [CB 100.2]. 10. The grounds of complaint raised by the applicant are that the Tribunal: a) allegedly failed to make findings on the question whether there was a real chance that the specific incidents which the applicant claimed had occurred in the past (namely, the claimed abduction and assault, and the claimed death threats) would occur again in the reasonably foreseeable future; b) allegedly failed to make a finding as to whether the claimed abduction and assault constituted persecution or `serious harm', either alone or in combination with the claimed death threats; c) failed to find that the applicant had suffered `serious harm' within the meaning of s.91R of the Act; and d) allegedly made findings which had no basis in the material before the Tribunal. Consideration 11. Following the High Court decision in S157/2002 v Commonwealth of Australia (2003) HCA 2 I must determine whether there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B of the Judiciary Act 1903 (Cth) notwithstanding s.474 of the Act. 12. On 4 February 2003 the High Court gave judgment in S157/2002 v Commonwealth of Australia (2003) HCA 2. The High Court determined that the privative clause provision is s.474(1) of the Act, properly construed, is a valid enactment. It found the proper construction of the Act, including s.474 imposed an obligation of providing a fair hearing as a limitation upon the decision-making authority: see per Gleason CJ at (37)-(38); Gaudron, McHugh, Gummow, Kirby and Hayne JJ at (83); and per Callinan J at (160). The question whether procedural fairness must still be accorded by the Tribunal so that it acts within its jurisdiction, in the light of the Migration Legislation Amendment (Procedural Fairness) Act 2002 is yet to be determined. The decision in S157/2002 related to the Act as it stood prior to that amendment. 13. An administrative tribunal exceeds its power and thus commits a jurisdictional error if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion in a way that affects the exercise or purported exercise of the Tribunal's power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This list is not exhaustive. Those different kinds of error may well overlap (see Minister for Immigration & Multicultural and Indigenous Affairs v Yusef (2001) 180 ALR 1 at 21). 14. The Tribunal is required to consider the elements of each of the claims made by the applicant. The Tribunal is empowered to exercise all the powers and discretion that are conferred by the Act. That is, to consider a valid visa application made by an applicant and in doing so to have regard to all information required to be taken into account under the code of procedure laid down in Part 2, Div 3, Subdivision AB of the Act. 15. It is a matter for the Tribunal as to the probity it accords the various aspects of the evidence put before it (see Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 611). The Tribunal is not required to adopt an uncritical acceptance of all and any allegations put before it by the applicant. 16. The Tribunal asked itself the correct question, that is whether the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal was required to, and I find, did assess whether there was a `real chance' of persecution (see Chan v Minister for Immigration & Multicultural & Indigenous Affairs (1989) 169 CLR 379) which within the meaning of s.91R of the Act must involve `serious harm'. It is clear the Tribunal applied that test. In order to assess whether the applicant faced a real chance of persecution or serious harm in the immediately foreseeable future, it was necessary for the Tribunal to make findings about past events and alleged past persecutory treatment (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559). It did so. It was not necessary however for the Tribunal to make a finding as to whether or not any specific act of past persecution alleged by the applicant might recur in the future. 17. The Tribunal considered both country information and its findings as to the past incidents occurring in the life of the applicant including the finding that some threats had been made and an assumption that an abduction and assault had taken place. The Tribunal concluded, as it was entitled to, that there was no real chance that the applicant would face persecution or serious harm if he were to return to Sri Lanka. The Tribunal's reasons contain an express reference to the terms of s.91R of the Act and to the principles governing the meaning of persecution under the Convention [CB 90] and contain findings referable to those matters. All alleged acts of past persecution as claimed by the applicant were considered by the Tribunal. 18. I find the Tribunal to have included in that consideration whether the applicant would suffer in the future the kind of harm suffered by him in the past. 19. The applicant submitted that the Tribunal failed to make a finding in respect of whether the assault which may have occurred constituted persecution or serious harm for the purposes of the Convention. The relevant passage from the Tribunal's reasons is as follows: "I also consider that the evidence indicates that the assault in April 2000, if it occurred as the applicant has described, was an isolated incident, followed by no further attempt to harm him. I am not satisfied that the reason why the applicant was able to avoid more serious harm was because there was no regular pattern to his life." [CB 98-99]. 20. I accept the respondent's submission that this passage contains an implicit finding that the assault did constitute `serious harm' within the meaning of s.91R of the Act and that, notwithstanding that finding, found the applicant did not face a real chance of serious harm in the future given the isolated nature of the incident. This finding was open to the Tribunal on the evidence before it. 21. The applicant submitted that the Tribunal incorrectly applied both the Convention and s.91R of the Act by determining that a threat could not constitute persecution or serious harm unless it was carried out, or unless it occurred more than once. It thus failed to exercise, or exceeded, its jurisdiction. Further it violated an essential pre-condition to the exercise of the power by the Tribunal. I do not accept that the Tribunal so erred. 22. Whether there is `persecution' within the meaning of the Convention and/or `serious harm' within the meaning of s.91R of the Act is a question of fact and degree for the Tribunal involving a qualitative assessment of the evidence before it (see Mandavi v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 70 at 25, per Carr J). 23. The Tribunal found that the alleged death threats: "... did not exhibit the characteristics necessary for them to constitute persecution within the meaning of the Refugees Convention and ... did not involve serious harm". [CB 98.9]. Such a finding was open to the tribunal. 24. I accept the respondent's submissions that there is no indication in the Tribunal's reasons that it considered that a threat could never constitute `serious harm' unless it were carried out or that it ignored the example set out in s.91R(2)(a). Whether or not a threat constitutes persecution or serious harm is a contextual question of fact for the Tribunal. The Tribunal found the threats against the applicant did not `exhibit the characteristics' of persecution or serious harm. 25. The Tribunal also considered whether the alleged death threats gave rise to a subjective fear of persecution or serious harm that was well-founded. The Tribunal determined that not to be the case. 26. The Tribunal made findings reasonably open to it on the evidence before it with respect to each alleged persecutory act and then determined whether the applicant faced a real chance of persecution for reasons of his political opinion. Despite the contrary submissions made by the applicant the Tribunal is not required to give reasons for its findings on credibility nor "the sub-set of reasons why it accepted or rejected individual pieces of evidence." (See Re Minister; Ex parte Durairajasingham (2000) 74 ALJR 405 at 417). 27. The Tribunal considered the arguments put by the applicant and also considered country information that was in its possession and which it particularised in respect of the applicant himself. The Tribunal came to a conclusion that the applicant did not have a well-founded fear of persecution for Convention reasons although that is a conclusion with which the applicant disagrees. It is not for this Court to review the merits of the Tribunal's decision nor to substitute for the Tribunal's views of the evidence before it this Court's views. There is no arguable jurisdictional error in the Tribunal's decision. 28. The Tribunal's decision is a privitive clause decision for the purposes of s.474(1) of the Act. 29. The applicant argued before me that although the decision related to the subject matter of the Act and was reasonably capable of reference to the power given to the decision-maker, the decision was not a bona fide attempt by the decision maker to exercise the power which the Act reposed in such decision maker. (See R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598). I reject this submission. There is no evidence before me that the decision-maker was animated by any personal bias against the applicant nor had in mind any purpose other than that delegated to her under the Act. There is no evidence that the decision-maker had a pre-existing state of mind that disabled her from or rendered her unwilling to make a proper evaluation of the matters before her. There is no evidence that would support the inference of actual bias. 30. I shall dismiss the application and order that the applicant pay the respondent's costs. I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Hartnett FM Associate: Dorian L M Date: 27 June 2003
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