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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - allegations of political persecution in Sri Lanka - whether the Hickman provisos satisfied - whether the RRT committed a jurisdictional error - no reviewable error found.

VGAJ v Minister for Immigration [2003] FMCA 85 (13 March 2003)

VGAJ v Minister for Immigration [2003] FMCA 85 (13 March 2003)
Last Updated: 28 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VGAJ v MINISTER FOR IMMIGRATION
[2003] FMCA 85



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - allegations of political persecution in Sri Lanka - whether the Hickman provisos satisfied - whether the RRT committed a jurisdictional error - no reviewable error found.



Migration Act 1958 (Cth), s.474

Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2

Applicant:
VGAJ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ213 of 2002



Delivered on:


13 March 2003



Delivered at:


Sydney, via videolink to Perth



Hearing date:


13 March 2003



Judgment of:


Driver FM



REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:


Ms L B Price



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs of and incidental to the application, fixed at $3,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH

Heard via videolink in Sydney


WZ213 of 2002

VGAJ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This ex tempore judgment relates to an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 2 July 2002. That decision was communicated to the applicant by letter dated 26 July 2002. The RRT affirmed a decision of a delegate of the Minister to refuse to grant the applicant and her son a protection visa. On 21 August 2002 the applicant applied to the Federal Court for review of the RRT decision. That application appears to have been drafted with some legal assistance. It sets out what appear to be effectively all possible grounds of review. At the time the application was filed, no particulars were provided.

2. The applicant filed in court today written submissions in support of her application. In those submissions, the applicant details a large number of asserted errors of fact made by the RRT. The applicant submits that these errors establish that the decision of the RRT was made without jurisdiction or is affected by an error of jurisdiction. The applicant submits that the errors demonstrate errors of law and unreasonableness. She submits that there was no evidence to support the findings of fact made by the RRT and that the RRT took into account irrelevant considerations, and failed to take into account relevant considerations. The applicant submits that the decision of the RRT was not made in good faith and was not a bona fide attempt to exercise the RRT's powers. Finally, she submits that the decision of the RRT was otherwise contrary to law.

3. Ms Price has prepared written submissions, on behalf of the Minister, which were filed on 10 March 2003. The general background facts are accurately set out in paragraphs 1 to 5 of those written submissions. In addition, the decision of the RRT is accurately summarised in paragraphs 6 to 13 of those submissions. I adopt that description of background facts and the summary of the decision of the RRT for the purposes of this decision, as follows:

The applicant is a national of Sri Lanka who arrived in Australia on 29 December 1999. The applicant applied for a protection visa on 7 February 2000. On 25 February a delegate of the respondent made a decision refusing to grant a protection visa to the applicant.

On 17 March 2000 an application was made to the RRT for review of the delegate's decision. The RRT affirmed the delegate's decision not to grant the applicant a protection visa on 29 June 2001. The applicant made an application to the Federal Court under the former Part 8 of the Migration Act 1958 (Cth) ("the Migration Act").

On 15 March 2002 the Federal court ordered by consent that the RRT's decision be set aside and the matter be remitted to the RRT for reconsideration. A differently constituted RRT reconsidered the application to the RRT and a hearing took place on 26 June 2002. The RRT again affirmed the delegate's decision on the protection visa application in a decision given on 2 July 2002.

On 21 August 2002 the applicant applied to the Federal Court under s.39B of the Judiciary Act 1903 (Cth) and on 23 September 2002 the Federal Court transferred the application to the Federal Magistrates Court under s.32AB of the Federal Court of Australia Act 1976 (Cth).

The application for review broadly states all manner of judicial review grounds but does not particularise any of those grounds. The respondent has not been served with any minute of amended application or affidavit in support of the application.

The decision of the RRT

The RRT was satisfied that the applicant was outside of her country of nationality, Sri Lanka, and that there was no third country into which the applicant had a right to enter and access protection. The RRT accepted that at the time the applicant left Sri Lanka she was fearful and has expressed fear of returning to her country of nationality.

The RRT noted that the applicant's claims arise out of party politics in Sri Lanka and not the conflict in Sri Lanka with LTTE militants. The RRT also noted that party politics in Sri Lanka were often violent and that both the major political parties, the People's Alliance (PA) and the United National Party (UNP), were not averse to engaging in politically motivated violence. The applicant fears that she will be killed by PA thugs because she had supported the UNP and that while she was in Sri Lanka she had undergone harassment, abuse and humiliation for being loyal to the UNP and taking part in political campaigns. The applicant claimed that she would always remain a member and supporter of the UNP. She claimed she had enemies in Sri Lanka who would not forget and her close friends now in senior positions in government could not keep her safe.

The RRT accepted that the applicant has had a close association with the UNP and that she is loyal to them. The RRT found that on some occasions there was a political element working at the level of connections and influence, but the RRT was not satisfied that the applicant was denied employment or prohibited from seeking paid work because of the political element.

The RRT accepted that the applicant had been forced out of her job at a senior level in a BMW dealership and that there had been some physical harm done to her at that time. The RRT accepted that in the loss of her senior job there was a political element but found that the essential and significant reason for forcing the applicant's dismissal was not political but a business decision as the employer was motivated by the desire to make money and in his view it was no longer good for his business to have an opposition party person in a senior position in the company.

In considering the alleged assaults and threats made on the applicant, the RRT concluded that in each case they were acted upon to protect the applicant by the state in guise of the police or the judicial system.

The RRT accepted that the attack on the applicant's home during the presidential election campaign in December 1999 frightened her and she made arrangements to come to see her son in Australia. The RRT accepted that she feared that election violence would result in serious harm or even death to herself and on country information of some deaths associated with the election it could not be said the applicant's fear was baseless.

In assessing the applicant's situation in the foreseeable future should she return to Sri Lanka, the RRT took into account "the substantial change which has taken place since she left her country". Most obviously that there had been a change in government and the UNP now has a parliamentary majority and many of the senior political figures whom the applicant supported and who supported her are now in political office, including the Prime Minister of Sri Lanka.

Relying on country information the RRT concluded the violence prior to the December 2001 elections was closely associated with the election campaigns. The RRT could not find country information that suggests vendettas against those who campaigned for either major party have continued into the post-election period. The RRT was satisfied that the applicant, a member of the party now in government and with access to the ear of the Prime Minister and other Cabinet Ministers, would not be subject to reprisals and would be adequately protected if she returned to Sri Lanka. Also, the RRT did not accept that the applicant could not relocate if she remained anxious about local political tensions.

4. Ms Price submits that, in the light of the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2, that there is no basis in law to disturb the decision of the RRT. Ms Price submits that the decision of the RRT is protected by s.474 of the Migration Act 1958 (Cth) ("the Migration Act"). Ms Price submits that s.474 of the Migration Act applies to the decision of the RRT because the RRT made no error of law going to its jurisdiction. In addition, she submits that the so called Hickman provisos are satisfied in this case.

5. It is apparent from an examination of the decision of the RRT (commencing at page 148 of the court book) that the RRT gave careful consideration to the detailed claims of persecution made by the applicant. The crux of the RRT decision is that although the RRT accepted that the applicant had suffered harm in Sri Lanka and that that harm had a political connection, the RRT did not accept that the applicant was at continuing risk in Sri Lanka.

6. The RRT found that the harm which the applicant suffered was limited in time to past election campaigns and that there was no continuing risk of harm. In addition, the RRT found that as the applicant was a supporter of the present government of Sri Lanka with contacts to senior government members, she would be able to receive the protection of the government. Finally, the RRT found that even if the applicant was subject to a risk of harm on return to Sri Lanka, associated with local political activity in her home area, it was reasonable for her to locate to another area of the country.

7. The complaints made by the applicant about the RRT decision are all specific issues of fact. The applicant is a self represented litigant and she did not seem to fully understand that the role of this Court is not to review the merits of the RRT decision. While the applicant asserted many errors of fact, these were no more than assertions. She was unable to satisfy me that any of the asserted errors of fact had a basis in the evidence appearing in the court book. Even if she had been able to do, in my view, there is no legal significance in the asserted errors of fact.

8. There is no substance to the claim of bias or bad faith. The review of the applicant's claims made by the presiding member appears on the face of the decision of the RRT to have been careful and thorough. In my view, the findings of fact made by the presiding member and the conclusions drawn from those facts were reasonably open to her based upon the material before her.

9. I find no reviewable legal error in the decision of the RRT. The Hickman provisos are satisfied. Accordingly, I will dismiss the application.

10. On the question of costs, Ms Price has sought an order for costs on behalf of the Minister and has submitted that an order fixed in the sum of $4,000 would be appropriate. Ms Price has submitted that there is nothing about this case that would take it out of the ordinary run of cases and that the Minister commonly seeks costs of that order. The applicant opposes an order for costs and maintains the merit of her claims.

11. The Minister has been wholly successful in the proceedings, and I am satisfied that he is entitled to an order for costs. The amount of costs sought on behalf of the Minister in matters before me has varied widely from as little as $500 to as much as $5,000. I agree with Ms Price that there is nothing about this case which makes it unusual. Matters that I would describe as the ordinary run of cases have attracted costs orders in proceedings before me in recent months between $2,500 and $3,500. In these circumstances, the claim of $4,000 is somewhat on the high side. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.


I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 24 March 2003
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