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MIGRATION - Review of Refugee Review Tribunal's decision affirming a delegate's refusal of a protection visa - disputed findings of fact - no reviewable error found.

WAJF v Minister for Immigration [2003] FMCA 235 (13 June 2003)

WAJF v Minister for Immigration [2003] FMCA 235 (13 June 2003) Last Updated: 7 July 2003 FEDERAL MAGISTRATES COURT OF AUSTRALIA WAJF v MINISTER FOR IMMIGRATION [2003] FMCA 235 MIGRATION - Review of Refugee Review Tribunal's decision affirming a delegate's refusal of a protection visa - disputed findings of fact - no reviewable error found. Applicant: WAJF Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS File No: WZ 29 of 2003 Delivered on: 13 June 2003 Delivered at: Perth Hearing Date: 12 June 2003 Judgment of: Walters FM REPRESENTATION Counsel for the Applicant: In person Counsel for the Respondent: Mr Hooker Solicitors for the Respondent: Blake Dawson Waldron ORDERS (1) The application for review be dismissed. (2) Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the respondent to employ an advocate. (3) The applicant do pay the respondent's costs fixed in the sum of $3,500.00. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH WZ 29 of 2003 WAJF Applicant And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent REASONS FOR JUDGMENT 1. The applicant is a national of Sri Lanka, who arrived in Australia in mid September 2001. He was later interviewed by a departmental officer. On 11 December 2001 he was advised by the Department that he had been found not to be a refugee. In May 2002 he requested a review of the refugee status determination. 2. On 27 August 2002, the Department wrote to the applicant advising him that a review of the refugee status assessment had taken place and that he had - once again - been found not to be a refugee. On the same day, the applicant completed a request to lodge an application for a protection visa. 3. On 17 September 2002 the applicant applied for a Protection (Class XA) visa. 4. On 13 November 2002, the Department wrote to the applicant advising him that his visa application had been refused. The delegate had found that "...the applicant's fear of convention based persecution (was) not well-founded...". 5. The applicant then applied to the Refugee Review Tribunal ("the RRT"). The application is undated and was lodged on 19 November 2002. 6. In its decision dated 31 December 2002, the RRT affirmed the delegate's decision not to grant the applicant a protection visa. 7. On 6 January 2003 the applicant applied to the Federal Court for - in essence - a review of the RRT's decision. Those proceedings were transferred to this Court by order dated 14 February 2003. Grounds for Review 8. The grounds appearing in the application for review are as follows: (a) The RRT decision involved an error of law being an error of law, being an error involving an incorrect interpretation of the term "well founded fear". (b) The RRT failed to apply the correct test and principles of relevant law (in) arriving at its decision and that it fell into error in taking into consideration irrelevant matters and in failing to take into account the matters that were relevant to reaching to its decision and therefore committed a jurisdictional error. (c) The RRT wrongly understood most of my claims and the reasons for the rejection of the material claims are unreasonable, irrational and illogical; the RRT also not complied with statutory rules. (d) The RRT (failed to) follow procedural fairness according to the Muin and Lie cases of the High Court of Australia. (e) These errors or jurisdictional errors by the RRT affected its decision. 9. Counsel for the respondent (Mr Hooker) submitted that, whilst the grounds refer to several distinct types of error, they do not specify the manner in which the RRT allegedly made the errors. It was also submitted on behalf of the respondent that it was not possible to respond to any of the applicant's grounds with particularity (due to the manner in which they had been drafted). In my view, those submissions have considerable merit. 10. During the course of the hearing before me on 12 June 2003, I invited the applicant (through his interpreter) to put to me anything that might assist in identifying a legal - or, relevantly, a jurisdictional - error. Apart from reiterating his dispute with certain findings of fact made by the RRT, however, he was unable to expand upon the grounds to which I have referred. The applicant did not provide any other written material. 11. I gave the applicant a further opportunity to address me after Mr Hooker had summarised his submissions. The applicant's interpreter was present at all relevant times, and everything that was said by either the bench or counsel was interpreted for the applicant. Similarly, everything that he had to say was duly interpreted. Background 12. The applicant was born in Sri Lanka in August 1981. He is Christian, and his ethnic group is Tamil. He speaks Sinhalese. 13. Mr Hooker prepared written submissions, which were provided to the court on 11 June 2003. The general background facts, the evidence and claims made before the RRT, and various preliminary matters, are set out in paragraphs 4 to 10 of those submissions. I adopt those paragraphs and incorporate them into this Judgment as follows: 4. The applicant asserted that he was a Christian and a person of Tamil ethnicity. Despite being Tamil he attended a Sinhalese school because his village was predominantly Sinhalese. He asserted that his father was a prominent supporter of the United National Party ("UNP") and had been actively involved in that party for a long time. The applicant himself asserted that he helped his father paste political posters, put up banners and distribute pamphlets with other odd jobs. 5. He stated he feared persecution because of his membership (or perceived involvement) with the UNP. It was emphasised by the applicant that his claim related entirely to the issue of his involvement with the UNP and did not relate to his Tamil ethnicity. 6. The applicant recounted a number of specific incidents said to support his claim. In particular, reliance was placed on certain violent conflict between UNP and PA, an opposing political organisation, in early 2001. That conflict had a number of consequences said to reinforce the prospect of persecution for actual, or imputed, political belief. 7. The RRT accepted the applicant's account of where he has lived and worked, and that he is of Tamil ethnicity. It also accepted that he had some association with the UNP because of his father's long support for that Party. However, the RRT found that, while he did undertake certain practical support tasks for that Party, he did not have any leadership role in his area in relation to the UNP nor that his involvement was of any particular profile or significance. 8. The RRT accepted that the applicant's father was injured in the mid 1990s in the context of fighting over political matters. However the RRT did not consider that the injuries sustained by the father in that incident were material to what might happen to the applicant if he were to return to Sri Lanka. With respect to the specific assertion concerning fighting between UNP and PA supporters in April 2001, the RRT found the overall scenario as described by the applicant to be implausible. It was not satisfied that the claimed destruction of the applicant's family's house was other than an accident, and rejected that the PA supporters were intent on finding the applicant to harm him for reason of his involvement with the UNP. 9. The RRT distinctly considered the extent of the risk that the applicant could face persecution if he were to return to Sri Lanka in the reasonably foreseeable future. It concluded that the applicant's involvement (either directly or through the involvement of his father) in the work of the UNP was not of a kind which led or would lead him to face serious harm on any return. It followed, in the RRT's conclusion, that there was not more than a remote chance of the applicant facing serious harm if he were to again to support the UNP upon return to Sri Lanka. 10. Although not specifically raised as a distinct basis for the claim for a protection visa, the RRT distinctly considered the question of the applicant's ethnicity and found that there was nothing in the evidence before the RRT which could give rise to a suspicion that the applicant had any involvement with the Tamil Tigers (or "LLTE") movement so as to create anything more than a remote chance of harm by reason of his ethnicity were he to return to Sri Lanka. The RRT also considered, and rejected, that there would be any basis for persecution for a Convention reason by reason of the applicant having left Sri Lanka without passing through the normal official exit checks and without his passport. The Law 14. Pursuant to s.483A of the Migration Act, this Court has the same jurisdiction as the Federal Court in relation to a matter rising under the Act. Under s.475A, it has jurisdiction in relation to a `privative clause decision' that is a decision made on a review by the RRT. `Privative clause decision' is defined in s.474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows: A privative clause decision: a) is final and conclusive; b) must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account. 15. In NAAV v MIMIA [2002] FCAFC 228, the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in the decision R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words, there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are: (a) the decision is a bona fide attempt by the decision-maker to exercise its power; (b) the decision relates to the subject matter of the legislation; and (c) the decision is reasonably capable of reference to the power conferred on the decision-maker. 16. There was also broad agreement in NAAV that the purported exercise of power must not be one that contravenes an inviolable limitation on the operation of the Act. 17. In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the High Court held that as a matter of construction the expression `decision... made under this Act' in s.474(2) "must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act."[1] If there has been a jurisdictional error, then the decision cannot properly be described as a decision made under this Act -- and is thus not a privative clause decision as defined in s.474(2) and (3). Further, a decision flawed due to failure to comply with the principles of procedural fairness was also said not to be a privative clause decision within s.474(2). 18. If there is no jurisdictional error affecting the RRT's decision, then the decision would be a privative clause decision and protected by s.474(1) -- unless it could be shown that one of the Hickman provisos had not been met. 19. In Plaintiff S157/2002, the High Court confined itself to a general statement of principle in relation to jurisdictional error, and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the applicant in that case. The precise scope of the notion of jurisdictional error in this context, and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints, may raise some complex issues[2] -- but there is no need to consider such issues in the proceedings presently before the Court. Discussion 20. The very general grounds relied upon by the applicant provide no indication of the real basis upon which he asserts that the decision of the RRT cannot stand. 21. In my opinion, it is apparent from an examination of the RRT's decision that it gave careful consideration to the applicant's assertions and concerns. 22. I have re-read the RRT's decision carefully. I am unable to identify any basis upon which the RRT's decision can be interfered with. The RRT acted in good faith, its decision is reasonably capable of reference to the power given to it, its decision relates to the subject matter of the legislation and there can be no suggestion that any relevant constitutional limits were exceeded. 23. Further, in my opinion there is no apparent breach of procedural fairness which could amount to jurisdictional error. 24. The RRT conducted an objective inquiry into whether the condition precedent for the grant of the visa applied for had been established. Its conduct of the inquiry was unexceptionable. 25. The RRT decided not to accept the applicant's account of some of the events leading to his departure from Sri Lanka. In so finding, the RRT acted within its jurisdiction. 26. Jurisdictional error occurs where a tribunal has misunderstood the nature of its jurisdiction, or misconceived its duty, or failed to apply itself to the question which the relevant Act prescribes, or misunderstood the nature of the opinion which it was to form[3]. Jurisdictional error can occur in other circumstances as well - for example, as a result of a denial of procedural fairness. 27. I turn now to deal briefly with the various grounds relied upon by the applicant. I shall use the lettering adopted in paragraph 8 of these Reasons: (a) In my opinion, the RRT did not incorrectly interpret the term "well founded fear". The RRT's approach to this question appears on page 98 of the Court Book, and is unexceptionable. (b) The applicant did not identify which relevant (or irrelevant) considerations were material to the ground. In my opinion, the RRT has clearly addressed the matters required by the Act and the Convention. (c) I have re-read the RRT decision carefully. It is clear that it did not misunderstand the applicant's claim. Nor, in my opinion, were its reasons for rejecting the applicant's "material claims" unreasonable, irrational or illogical. Indeed, even if the court were to reach the view that a particular conclusion arrived at by the RRT may be incorrect, or the consequence of illogical reasoning, that - in itself - would not involve jurisdictional error or give rise to any ground of review[4]. To the extent that this ground amounts to a submission to the effect that the RRT's decision was unreasonable, I refer to the following passage from NASL v MIMIA (2003) FMCA 72: There is a helpful discussion of the doctrine of unreasonableness in Judicial Review of Administrative Action, 2Ed, Aronson and Dyer, 2000 where at 285 the learned authors...indicate that the bar to a finding of unreasonableness amounting to a cause for judicial review is set exceedingly high. Perhaps the best expression of this bar for the purposes of the instant case is found in the judgment of Lord Brightman in Pulhofer[5] at 518: "Where the existence or non existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debateable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power, save in a case where it is obvious that the public body, consciously or unconsciously, has acted perversely." Put another way (and in a slightly different context): It is not for the Court, on reviewing a decision of the tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the tribunal, or upon any such view to conclude that the tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the tribunal[6]. Finally, as McHugh J said in Re: MIMA: ex parte Cohen (2001) HCA 10 at [37]: If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reason or process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty. It follows that I am unable to conclude that the RRT's decision was unreasonable in any relevant sense. Although the allegations in this ground also included an allegation of failure to comply with certain statutory rules, the applicant did not identify the relevant rules, or provide anything to support his contention in that regard. (d) The decision of the High Court in Plaintiff S157 confirmed that s.474 does not protect a purported decision made as a result of jurisdictional error - and a failure to accord procedural fairness constitutes jurisdictional error. An administrative decision which involves jurisdictional error is regarded, in law, as no decision at all[7]. The decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601 was a decision relating to the subject of procedural fairness[8]. Once again, the applicant has provided no indication of the evidence that he asserts could have been presented, or what other step he could properly have taken in relation to the prosecution of his claim. During the course of the hearing before me, I invited the applicant to expand upon this ground. After explaining to him the concept of procedural fairness, I asked him whether he could identify any basis upon which he could assert that procedural fairness had been denied him - but he did not attempt to argue that there was such a denial. (e) This ground does not appear to raise any separate or independent matter. 28. Overall, and as I have already recorded, I am unable to identify any basis upon which the RRT's decision can be interfered with. The RRT acted in good faith, its decision is reasonably capable of reference to the power given to it, its decision relates to the subject matter of the legislation and there can be no suggestion that any relevant constitutional limits were exceeded. In my opinion, there could be no suggestion of bias (whether actual or apprehended). Further, there is no apparent breach of procedural fairness which amount to jurisdictional error. The applicant gave evidence before the RRT. He did not suggest that he did not understand the proceedings in which he was involved -- and, in my opinion, the RRT clearly understood the applicant's case. 29. In my view, the findings of fact contained in the RRT's decision, and the conclusions drawn from those facts were reasonably open to it. 30. For the preceding reasons, the grounds for review (to the extent that they can be identified from the material now before the Court) must fail, and the application must be dismissed with costs I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Walters FM Deputy Associate: Rebecca Young Date: 13 June 2003 -------------------------------------------------------------------------------- [1] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, and also see [19] per Gleeson CJ and [163] per Callinan J [2] see, for example, Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 -- in relation to s.65 of the Migration Act [3] see Cole & Allied Operations Australian Industrial Relations Commission (2000) 203 CLR 194 [4] See MIMA v Epeabaka (1998) 84 FCR 411 at 421 and MIMA v Perera (2001) FCA 1212 at [22] 22 - [26] [5] Pulhofer v Hillingdon London Borough Council (1986) 1 AC 484 at 518 [6] see Kamal v Minister for Immigration (2002) FCA 818 at [36] [7] see (2003) 195 ALR 24 at 45 [8] see the careful analysis of the Muin decision by Raphael FM in NAAY v Minister for Immigration (2003) FMCA 46
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