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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - applicant a Sri Lankan Tamil - no reviewable error found - observations on the interpretation of the privative clause in s.474 of the Migration Act.

WAJU v Minister for Immigration [2003] FMCA 199 (21 May 2003)

WAJU v Minister for Immigration [2003] FMCA 199 (21 May 2003)
Last Updated: 19 June 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAJU v MINISTER FOR IMMIGRATION
[2003] FMCA 199



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - applicant a Sri Lankan Tamil - no reviewable error found - observations on the interpretation of the privative clause in s.474 of the Migration Act.



Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth), s.474

Craig v Commonwealth (1995) 184 CLR 163

Ex parte Applicant S134 of 2002 v Commonwealth (2003) 195 ALR 1

Koulaxazov v Minister for Immigration [2003] FCAFC 75

Minister for Immigration v Yusuf [2001] HCA 30

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

NAAV v Minister for Immigration [2002] FCAFC 228

Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24

Applicant:
WAJU



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ58 of 2003



Delivered on:


21 May 2003



Delivered at:


Sydney, via videolink to Perth and Port Hedland



Hearing date:


21 May 2003



Judgment of:


Driver FM



REPRESENTATION

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 and disbursements of and incidental to the application, fixed in the sum of $2,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ58 of 2003

WAJU


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This ex tempore judgement relates to a decision of the Refugee Review Tribunal ("the RRT") made on 11 February 2003. The RRT affirmed the decision of a delegate of the respondent Minister not to grant to the applicant a protection visa. The applicant filed an application to review the decision of the RRT in the Federal Court on 24 February 2003. The applicant appears to have had some assistance in preparing that application.

2. The grounds of review set out in the application are first, that the RRT fell into legal error in taking into account irrelevant considerations and in failing to take into account relevant considerations. Secondly, that the RRT fell into error in misinterpreting the phrase "well founded fear". Thirdly, that the RRT misunderstood the applicant's claims and incorrectly found the claims to be unreasonable or illogical and that in so finding the RRT did not comply with statutory requirements. Fourthly, that the RRT did not accord the applicant procedural fairness in the sense required by the High Court decisions in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. The application therefore asserts that the decision of the RRT is invalid by reason of jurisdictional error.

3. The application was transferred to this court by order of His Honour Carr J on 28 March 2003. Prior to that transfer the Federal Court ordered that the applicant file and serve on or before 6 May 2003, an amended application giving particulars of any grounds founding relief under the Judiciary Act 1903 (Cth), or a statement setting out why he considers a decision of the RRT should be overturned. The applicant was also ordered to file and serve an outline of submissions at least five days before the hearing. Neither of those orders was complied with. However, no application for dismissal was made on behalf of the respondent Minister by Ms Price at trial today by reason of that non-compliance. The applicant is in immigration detention and told me that he had been unable to file any documents because of language difficulties. The applicant is an ethnic Tamil from Sri Lanka and was assisted in court today by an interpreter in the Tamil language.

I elected to hear the matter notwithstanding the non-compliance with the orders of the Federal Court.

4. I adopt for the purposes of this judgment the following background set out in paragraphs 1 to 4 of Ms Price's written submissions filed on 16 May 2003. I also adopt for the purposes of this judgment paragraphs 5 to 11 of her written submissions which detail the RRT decision:

The applicant is a national of Sri Lanka and arrived in Australia on 15 September 2001. The applicant applied for a protection (class XA) visa on 19 September 2002. On 13 November 2002 a delegate of the respondent made a decision refusing to grant a protection visa to the applicant.

On 19 November 2002 an application was made to the RRT for a review of the delegate's decision. The RRT conducted a hearing of the application on 18 December 2002 at which the applicant gave oral evidence. The RRT's decision affirming the delegate's decision not to grant the applicant a protection (class XA) visa was made on 11 February 2003.

On 24 February 2003 the applicant filed with the Federal Court an application for review of the RRT's decision. The application asserts in broad terms various bases for reviewable error but does not particularise the errors and how they arise in the RRT's reasons for decision.

On 28 March 2003 the Federal Court transferred the application to the Federal Magistrates Court under s.32AB of the Federal Court of Australia Act 1976 (Cth).

The RRT accepted that the applicant is a Tamil.

The RRT accepted that the Sri Lankan authorities have typically suspected young Tamils from Northern or Eastern Sri Lanka of being connected with the LTTE. The RRT accepted as plausible that the Sri Lankan authorities arrested and detained the applicant for 14 days in 1997 on suspicion of assisting the LTTE.

The RRT also accepted as plausible that the Sri Lankan authorities arrested the applicant, physically mistreated him and accused him of being involved in the LTTE attack on Katunayake Airport a few days after it happened in July 2001. The RRT found that the applicant told the Sri Lankan authorities that he was tyring to go to Australia, and that he had no connection with the airport attack. The RRT found that the Sri Lankan authorities had no evidence against the applicant in relation to the attack on Katunayake Airport.

The RRT accepted the applicant's claim that he appeared in a Sri Lankan court on 29 August 2001. The RRT did not accept that the applicant was charged with a criminal offence in relation to the attack on Katunayake Airport. The RRT found the applicant's evidence at the hearing in this respect incongruous, implausible and unconvincing. In support of this the RRT stated:

(a) it was implausible that the Sri Lankan authorities would have released the applicant on bail if he had been charged in relation to a terrorist attack;

(b) the applicant's response was unconvincing when he was asked why he had not obtained evidence that was available to him shortly before he departed Sri Lanka (a newspaper report) and that could have supported his asylum claim in Australia;

(c) when the applicant was asked how he had known that the criminal charge he faced did not relate to his attempt to illegally depart Sri Lanka, the applicant's response - that he did not think so - was incongruous.

In respect of the applicant's claim to fear persecution at the hands of the LTTE, the RRT did not accept that the LTTE tried to recruit the applicant or threatened him or any member of his family. To support this finding the RRT stated that while the applicant was answering questions about his contact with the LTTE, he appeared to be making up evidence as he was going along and, had he been targeted by the LTTE as he claimed, it is reasonable to expect that he would have been able to provide more detailed evidence and explanations for their behaviour than he seemed capable of at the RRT hearing.

The RRT examined whether the applicant had a well-founded fear of persecution by the Sri Lankan authorities for reasons of his Tamil ethnicity and imputed support for the LTTE. After accepting a number of independent country reports as authoritative on changes in the political and military circumstances in Sri Lanka, the RRT found that given the substantial improvements in the situation for Tamils in Sri Lanka since the peace process commenced it was not satisfied that the applicant faces a real chance of being persecuted by the Sri Lankan authorities for reasons of his Tamil ethnicity or a perception that he has supported the LTTE.

After review of the applicant's claims, the RRT was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugee Convention and thus the applicant did not satisfy the criterion under s.36 of the Act for the grant of a protection visa.

5. The applicant represented himself. I explained to him that the hearing today would turn on legal issues. I explained to him that I could not review the decision of the RRT on its merits or decide whether or not he would receive a visa. Given that he is not a lawyer and was representing himself, I gave the applicant the opportunity to present submissions after hearing submissions from Ms Price for the Minister.

6. Ms Price submitted to me that it was difficult to respond to the application in the absence of any particulars of legal errors by the RRT. She submitted that no error going to the jurisdiction of the RRT had been demonstrated, and none was apparent on the face of the record. She further submitted that there was no evidence of procedural unfairness and that the so called Hickman provisos were satisfied. She submitted that in the circumstances I was bound to dismiss the application on the basis of the application of the privative clause in s.474 of the Migration Act 1958 (Cth) ("The Migration Act"). Ms Price otherwise relied on her written submissions.

7. The applicant was unable, in his oral submissions, to expand upon what is set out in the application. He told me that the decision of the RRT was wrong and that the RRT should have believed him. However, that goes to the merits of the RRT decision, not its legality.

8. I accept Ms Price's submission that no legal error has been demonstrated or is apparent on the face of the record. There is no evidence of procedural unfairness. The applicant plainly was disbelieved by the RRT in respect of significant parts of his claims. It was, of course, the job of the RRT to make findings on credibility. Those findings were reasonably open to the RRT on the material before it. To the extent that the applicant's claims were accepted by the RRT the RRT found that the applicant did not have a well founded fear of persecution should be return to Sri Lanka. That finding was reasonably and properly based upon the country information referred to by the RRT. The three Hickman provisos are plainly satisfied. In the circumstances, the privative clause in s.474 of the Migration Act protects the decision of the RRT.

9. In her written submissions, Ms Price has taken the opportunity to put submissions to me on the proper interpretation of the privative clause. It is apparent from those submissions that there is a difference of view in the Federal Court on that issue of interpretation. In particular, there is a difference of view on the question of whether any jurisdictional error will vitiate a RRT decision in the face of the privative clause. In the very recent decision of the Full Federal Court in Koulaxazov v Minister for Immigration [2003] FCAFC 75 on 2 May 2003 a majority expressed the view that the decision of the High Court in Plaintiff S157 of 2003 v Commonwealth (2003) 195 ALR 24 should be interpreted narrowly.

10. His Honour Conti J in that decision at paragraph 73 said that:

"...it would be unsafe to deny the privative clause an operation beyond what had been explicitly provided by the High Court in S157...and therefore unsound to authorise the exclusion of any operation of s.474 by reason of the existence of any one or more of the vitiating circumstances in Craig."

11. His Honour Gyles J agreed. The issue is whether any jurisdictional error in the sense identified in Craig v Commonwealth (1995) 184 CLR 163 is sufficient to vitiate a decision of the RRT or the MRT in the face of the private clause. It appears from the majority judgment of Koulaxazov that the Federal Court in that case considered that it would not, although that view appears to be an obiter dictum in the context of that case. An alternative way of approaching the issue is to consider whether any error of law identified amounts to a jurisdictional error. Even on a broad interpretation of the decision of the High Court in Plaintiff S157, if an error of law does not amount to a jurisdictional error the privative clause would protect the decision.

12. Although it is not necessary to express any final view for the purposes of this case, in my view, the decision of the High Court is relatively clear and straightforward. The majority judgment makes clear that the RRT cannot authoritatively determine the limits of its own jurisdiction. In order to be constitutionally valid s.474 must be read subject to the Court's right to provide prerogative relief if the RRT's jurisdiction is exceeded: Plaintiff S157 at [75] and [76]. I see nothing in the decision of the High Court that would limit this principle to cases of procedural unfairness. Neither do I see anything in the decision that would establish a hierarchy of jurisdictional errors. It appears to be implicit in the decision of the High Court that jurisdictional error has the meaning given to that term in Minister for Immigration v Yusuf [2001] HCA 30. To the extent that that issue was left unresolved in Plaintiff S157, the doubt appears to have been removed in Ex parte Applicant S134 of 2002 v Commonwealth (2003) 195 ALR 1. The Court in that case seems to have taken the view that if a failure to take into account a consideration relevant to a decision under s.65 of the Migration Act could have been established, the privative clause would not have protected the decision. It appears to me that the High Court in those two cases decided that a decision vitiated by any jurisdictional error would not be protected by the privative clause but that not all errors of law amount to jurisdictional error. In particular, the High Court cautioned that the privative clause will bear on a consideration of whether a legal error constitutes jurisdictional error. This is particularly important when considering failures to follow the requirements of the Migration Act.

13. My understanding of the views espoused by the majority in Koulaxazov is that a different approach has been taken. It seems to me from a reading of the majority judgments in that decision that Their Honours appeared to be taking a view consistent with the decision of His Honour French J in NAAV v Minister for Immigration [2002] FCAFC 228. At paragraph 537 of that judgment French J set out seven grounds of review which in his opinion remained open notwithstanding the privative clause. His Honour was in the minority in NAAV. However, in my view, even on the narrow interpretation of the High Court decision in Plaintiff S157 adopted by the majority in Koulaxazov, the decision of the High Court was, in effect, that French J was correct.

14. Accordingly, I take the view that at least the seven grounds of review identified by French J in NAAV are available notwithstanding the privative clause. The sixth ground of review identified by French J was that the decision is made in breach of a limit or condition upon power which, notwithstanding s.474, is implied from the statute or imposed by the common law and which must be observed for the effective exercise of the power. In my view, that ground of review can be established if an applicant proves jurisdictional error of the kind set out in Yusuf and Craig.

15. I reiterate that the observations I am making are obiter in the context of this case. No legal error has been demonstrated by the applicant and none is apparent to me from my reading of the decision of the RRT.

I will dismiss the application.

16. On the question of costs the Minister, having been wholly successful, Ms Price sought an order for costs in the sum of $3,500. The applicant submits that he could not pay a costs order. However, an ability to pay costs that may be ordered is not a reason to refrain from making a costs order. I am satisfied that costs should follow the event. The amount of $3,500 is, in my view, on the high side. This was not a difficult matter. In average or routine matters in this jurisdiction I commonly make an order for costs in the range of $2,500 to $3,500. In my view, this matter falls at the low end of that range.

17. 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 $2,500.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 11 June 2003
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