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

M31 v Minister for Immigration [2003] FMCA 192 (22 May 2002)

M31 v Minister for Immigration [2003] FMCA 192 (22 May 2002)
Last Updated: 28 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M31 v MINISTER FOR IMMIGRATION
[2003] FMCA 192



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



Migration Act 1958 (Cth)

Judiciary Act 1903 (Cth)

Federal Magistrates Court Rules 2001, Part 21, Rule 21.10

Federal Magistrates Court Rules 2001, Rule 21.15

Migration Regulations 1994

SDAO & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 132

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Kaur v Minister for Immigration & Multicultural Affairs [2000] FCA 1401

Choi v Minister for Immigration & Multicultural Affairs [2001] FCA 555

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 379 at 429

Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85

Minister for Immigration & Multicultural Affairs v Islam [2001] FCA 1681

Applicant:
M31



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ 1193 of 2002



Orders made:


22 May 2002



Delivered at:


Melbourne



Hearing Date:


22 May 2003



Judgment of:


Hartnett FM



REPRESENTATION

Counsel for the Applicants:


Mr Kissane



Solicitors for the Applicants:


Ravi James & Associates



Counsel for the Respondent:


Mr Fairfield



Solicitors for the Respondent:


Australian Government Solicitor



ORDER

The Court orders that:

(1) The application is dismissed.

(2) The applicant pay the respondent's costs pursuant to the Federal Magistrates Court Rules 2001 Part 21 Rule 21.10.

(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 1193 of 2002

M31


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This matter was transferred from the Federal Court by order of Weinberg J on 25 November 2002. The matter had earlier been remitted to the Federal Court of Australia from the High Court by order of Hayne J on 31 July 2002.

2. The applicant relies upon his amended application filed 23 April 2003 and contentions of fact and law have been filed and are relied upon by both parties. The application is made pursuant to s.39B of the Judiciary Act 1903 (Cth) and ss.475A, 477, 478 and 479 of the Migration Act 1958 (Cth) ("the Act") for writs of prohibition and certiorari and for a declaration, in relation to a decision of the Refugee Review Tribunal made on 8 February 2002. The decision is said to be infected by jurisdictional error in that the Tribunal failed to take account of relevant material; asked the wrong question; identified the wrong issues; took into account irrelevant material; and failed to deal with the integers of the applicant's case as stated in the particulars of claim as follows:-

i) The Tribunal misinterpreted and/or misunderstood the criterion that the applicant had to establish to be eligible for a grant of the visa in that it failed to consider the applicant's claims and the evidence in support of those claims.

ii) It failed to deal with and/or consider the case as presented and/or the claims of the applicant in that it failed to consider the central claim of the applicant that he was of interest to the authorities because his passport had been found at Kalmunai and that he fears persecution during questioning about this passport.

iii) It failed to deal with the claim of the applicant that he would be mistreated upon questioning about his passport.

iv) It failed to deal with the claim of the applicant that he would be imputed with a political opinion of support for the LTTE because his passport was used by them and/or recovered in one of their camps.

History

3. The applicant is a male national of Sri Lanka of Muslim religion. He entered Australia on 27 October 1997 on a student temporary visa. On 5 July 1999 he applied for a protection visa and on 13 January 2000 a delegate of the respondent refused his application (CB 27-34).

4. On 14 February 2000 the applicant applied for review of that decision by the Refugee Review Tribunal ("the RRT") pursuant to the relevant provisions of the Migration Act 1958 ("the Act") (CB 35-38).

5. The RRT conducted a hearing in the matter on 23 January 2002 and

30 January 2002 at which the applicant gave evidence. Evidence was also given on the applicant's behalf by a Mrs Ibrahim and a Mr Mohinudeen, each having previously provided an affidavit on behalf of the applicant (CB 40-41 and CB 42 respectively).

6. By a decision handed down on 1 March 2002 the RRT affirmed the decision of the delegate (CB 53-66).

7. The criteria prescribed for the grant of a protection visa are set out in s36 (as amended) of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations"). One of the criteria is that the applicant is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees ("the Refugees Convention") as amended by the Refugees Protocol.

8. In terms of Article 1A(2) of the Convention, Australia has protection obligations to any person who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country...".

9. The considerations that are relevant to the Tribunal's task are as set out by von Doussa J in SDAO & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 132 as follows:-

"19 The considerations that are relevant to the Tribunal's task are to be identified primarily, if not entirely, by reference to the Act: Yusef at 19 [73]-[74]. The Tribunal is required by s414(1) of the Act to review the decision of the delegate, and in doing so the Tribunal is empowered to exercise all the powers and discretions that are conferred by the Act on the delegate who made the decision: s415. Section 47(1) requires the delegate, exercising the powers of the Minister, 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, subdiv AB of the Act. Thus, in a case like the present, the Tribunal is required to consider the elements or integers of each of the claims made by an applicant: see Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; 64 ALD 289 per Allsop J (with whom Heerey J agreed) at [79]."

10. The applicant's claim was that he had a well-founded fear of persecution by reason of being imputed with association with the LTTE. Essentially, the applicant claimed that:

a) while in Australia his passport had been lost;

b) the Sri Lankan police had subsequently located his passport in Sri Lanka in the possession of the LTTE; and

c) consequently the police would impute to the applicant support for the LTTE.

The Refugee Review Tribunal

11. The RRT accepted that the applicant's passport had been lost while he was in Australia and that he had not departed Australia since that date. It accepted that his passport had been used by an unknown person who had left Australia and had attempted to re-enter. The RRT accepted that the LTTE gained possession of the applicant's passport and used it illegally (CB 64).

12. The RRT also accepted that it would be part of routine investigation for the Sri Lankan authorities to question the applicant upon his return about his lost or stolen passport. Upon a fair reading of the RRT's reasons as a whole (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291; Kaur v Minister for Immigration & Multicultural Affairs [2000] FCA 1401 at [15]; Choi v Minister for Immigration & Multicultural Affairs [2001] FCA 555 at [16] per Full Court) the RRT found that the applicant would not be suspected by the Sri Lankan authorities of supporting the LTTE because the LTTE had used his passport (CB 65).

13. Essentially the RRT found that the applicant would be able to establish his innocence of any LTTE involvement:

a) because on the basis of country information accepted by the RRT he did not fit the profile of someone suspected of supporting the LTTE;

b) his relatives in Sri Lanka could vouch for his identity and his activities in Australia;

c) country information indicated that the Sri Lankan authorities would be aware that the passports of many innocent people are misused by the LTTE for illegal purposes; and

d) it was reasonable to expect the Sri Lankan authorities to accept the applicant's explanation for any delay in contacting the authorities from Australia or in forwarding to them proof of his residence in Australia.

14. The RRT found the applicant's claim to fear being persecuted by the Sri Lankan authorities because of an imputed political opinion of support for the LTTE to be far-fetched and implausible. It also accorded little evidentiary weight to the applicant father's affidavit and to the written and oral evidence of Mrs Ibrahim and Mr Mohinudeen for the reasons set out (at CB 66).

Considerations

15. Essentially the applicant claimed the RRT failed to deal with the claim that the use of the passport by the LTTE and the finding of it in the camp at Kalmunai would lead to the applicant being imputed with the opinion of support of the LTTE.

16. Further, that the RRT failed to consider the applicant's claim that he would be questioned as a result of the finding of this passport and that during such questioning he would be mistreated.

17. I find the RRT has committed no jurisdictional error of law as claimed by the applicant for the following reasons:

a) the RRT clearly dealt with the applicant's claim on the basis that the LTTE had possession of his passport and had made illegal use of it. Such possession and use was then considered by the RRT in terms of its impact upon and consequences for the applicant. Furthermore, the RRT proceeded on the basis that the LTTE's possession and use of the applicant's passport could come to the attention of the Sri Lankan authorities, and having considered all the evidence, concluded that the applicant would be perceived to be "innocent" having regard to those matters referred to by it in paragraph 13 above. It is not for this Court to review the merits of the findings of the RRT;

b) the RRT found, as it was entitled to do as a finding of fact that any questioning of the applicant would be a matter of "routine" this finding being subsequent to its finding that the police would not suspect the applicant of supporting the LTTE because the LTTE possessed and used his passports. Cogent reasons were provided. I accept the respondent's submissions that the finding of fact of fact as to any questioning of the applicant contains an implicit rejection of any adverse interest in the applicant by the Sri Lankan police;

c) I accept the submissions of the respondent otherwise as to this matter as being an accurate and concise explanation of the RRT reasons and the lack of jurisdictional error attending them. They were:-

i) There was no Convention nexus between any possible "routine" questioning of the applicant and the claimed Convention ground. As McHugh J observed in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 379 at 429:

"As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is `being persecuted' for the purposes of the Convention."

ii) Whether "routine" questioning of the applicant was within the definition of `persecution' was a question of fact and degree. Even if it could be said that such questioning was necessarily comprehended by the definition the applicant has not articulated any Convention basis for such questioning apart from the basis rejected by the RRT. The RRT is not obliged to consider a claim, never articulated by the applicant, merely because an element of the claim is present (see Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 at [13] per Wilcox J, approved in Minister for Immigration & Multicultural Affairs v Islam [2001] FCA 1681 per Full Court at [17]).

iii) By finding that the questioning would be "routine", the RRT was clearly drawing a distinction between the nature of the questioning of the applicant and the questioning of LTTE suspects canvassed in the country information.

18. I dismiss the application and order the applicant to pay the costs of the respondent.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: L.M.Dorian

Date: 22 May 2003
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