Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of decision of the Refugee Review Tribunal - credibility of applicant's evidence - no jurisdictional error - application dismissed.

VFAJ v Minister for Immigration [2003] FMCA 161 (8 April 2003)

VFAJ v Minister for Immigration [2003] FMCA 161 (8 April 2003)
Last Updated: 6 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VFAJ v MINISTER FOR IMMIGRATION
[2003] FMCA 161



MIGRATION - Review of decision of the Refugee Review Tribunal - credibility of applicant's evidence - no jurisdictional error - application dismissed.



Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth)

Constitution of Australia, s.75

Migration Legislation Amendment (Procedural Fairness) Act 2002

Federal Magistrates Court Rules 2001, Part 21, rule 21.10

Federal Court of Australia Act 1976

Federal Court Rules, order 82

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449

Tin v Minister for Immigration & Multicultural & Indigenous Affairs (2000) FCA 1109, (51-54)

Applicant:
VFAJ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ 955 of 2002



Delivered on:


8 April 2003



Delivered at:


Melbourne



Hearing Date:


8 April 2003



Judgment of:


Hartnett FM



REPRESENTATION

Counsel for the Applicant:


Mr T.A. Fernandez



Solicitors for the Applicant:


Kuwan and Samarakoon



Counsel for the Respondent:


Dr C. Beaton-Wells



Solicitors for the Respondent:


Australian Government Solicitor



ORDER

(1) The application is dismissed.

(2) The applicant to pay the respondent's costs as agreed, or in default of agreement, as assessed 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 955 of 2002

VFAJ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an ex tempore judgment.

2. The matter before me was transferred to this court by order of North J on 13 September 2002 pursuant to section 32AB of the Federal Court of Australia Act 1976 and order 82 of the Federal Court Rules.

3. The applicant filed her application on 24 July 2002 in the Federal Court of Australia. That application sought judicial review of a decision of the Refugee Review Tribunal (the RRT), made on 29 May 2002 in Melbourne, affirming a decision of a delegate of the minister not to grant a protection visa.

4. The applicant claimed in an accompanying affidavit that the RRT failed properly or at all to have regard to the matters put before it. No grounds were particularised either in that affidavit or the application itself. By amended application filed 28 October 2002 the applicant again relied upon grounds as stated in an accompanying affidavit, that affidavit being filed on 28 October 2002. This application was prepared on behalf of the applicant by a solicitor and filed and served pursuant to orders made by North J on 13 September 2002.

5. The further accompanying affidavit again did not set out any particulars, other than the general claim made earlier. Furthermore, it was simply for the most part a repetition of the earlier affidavit, save as to the addition of paragraphs 10 and 11. These paragraphs claimed that:-

a) it was encumbent upon the Tribunal to specify what were the aspects of the applicant's demeanour that led to the finding by the Tribunal that the applicant was not a credible witness; and

b) that the Tribunal should have provided reasons as to how cases cited by it -

impacted upon the Tribunal's reasoning for rejecting my (the applicant's) evidence on the grounds of my demeanour.

6. Both the applicant and respondent filed and relied upon contentions of fact and law and a court book was filed and relied upon by the respondent.

History

7. The applicant was born in Colombo in Sri Lanka on 18 January 1971. She is a Sri Lanka national of Singhalese ethnicity. She married in Colombo on 24 April 1999 and her husband she claimed is currently residing in Australia as the holder of a student visa. The applicant and her husband are now separated. In her application for a protection visa the applicant described herself as a book-keeper.

8. The applicant arrived legally in Australia by air flight on 9 August 2000 on passport issued in her own name. On 6 September 2000 she applied for a protection class XA visa under the Migration Act 1958, (the Act). On 3 October 2000 a delegate of the minister refused the applicant a protection visa. On 23 October 2000 the applicant made application to the RRT for review of that decision refusing a protection visa. On 23 April 2002 the Tribunal conducted a hearing at which the applicant attended and gave oral evidence. The applicant also submitted a written submission dated 19 April 2002. By decision dated 29 May 2002 the RRT affirmed the decision of the delegate not to grant a protection visa.

The Tribunal hearing

9. The applicant claimed to:

a) live at the same address in Ragama from 1990 until 2000 working in Colombo as an audit/tax trainee, accounting clerk and book-keeper between 1991 and 2000;

b) be an active United National Party (UNP) member who in 1993 was president of the Women's Front of the UNP in her area;

c) following the UNP general election and presidential election loss in 1994, be threatened by the party's political opponents with members and supporters of the Peoples Alliance Party (PA) harassing her and causing damage to her property;

d) be deprived of all basic rights, including jobs, because of her involvement in the Women's Front and as an active member of the UNP;

e) have been injured by a bomb explosion during the December 1999 presidential elections;

f) have received death threats whilst campaigning for the 10 October 2000 general election;

g) have received no protection from the police in relation to the death threats made to her by members of the PA, as the police supported the PA;

h) be a well-known UNP member in her area and to have held an important UNP position at the village level.

10. The Tribunal asked the applicant about each of her claims, in particular earlier alleged police questioning of her and her subsequent approaches made to them for protection and why she feared persecution currently given the UNP were in government. She responded that the PA President was still in power and that the security forces were answerable to the President.

11. The Tribunal found the applicant's evidence in this regard to be unconvincing and inconsistent (Case Book 56-57) and some of her evidence to be hesitant, confused and vague. The Tribunal referred to country information (pages 54 to 55 of the Case Book) and concluded that there was a reasonable level of efficiency of the police, judicial and related services in Sri Lanka and that neither the recently elected UNP government, nor the President of Sri Lanka would condone inter-party violence, such violence having not been condoned in the relatively recent past by the former UNP or PA governments.

12. The Tribunal found the applicant to be "not a credible witness" (Case Book 56) on the basis of her demeanour and the content of her evidence at the tribunal hearing. The Tribunal's reasons included references to the applicant appearing reluctant to give evidence; requiring prompting for details of evidence and giving inconsistent evidence. The Tribunal found the applicant's evidence in relation to her UNP policies "fundamentally uninformative" and her evidence as to how she recruited UNP members "terse and unconvincing". The Tribunal member concluded that it was:

Not satisfied that the applicant was an active, well known or important UNP member or supporter. Nor am I satisfied that the Sri Lankan police mistreated her or failed to provide her with effective or adequate protection for reasons of her political opinion or for any other convention reasons. It follows that I do not accept the applicant's evidence that PA supporters threatened her or harmed her because of her support for the UNP. I do not accept that she genuinely fears being persecuted by PA supporters upon returning to Sri Lanka.

13. Under section 65(1) of the Act a visa may be granted only if the decision-maker is satisfied that the prescribed criteria for the visa have been satisfied. Subsection 36(2) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

14. The RRT concluded that the applicant did not have a well-founded fear of being persecuted by supporters of the PA party or the Sri Lankan authorities for reasons of her political opinion as claimed or for any other Convention reason (Case Book 58).

Consideration

15. In the hearing before it I find the Tribunal gave consideration to each of the applicant's claims but ultimately did not accept the veracity of any of them. This is clearly a matter for the Tribunal and not for this court.

16. Following the High Court decision in S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 I must determine whether there was any error on the part of the Tribunal which would enliven the entitlement to an order under section 39B of the Judiciary Act 1903 (Commonwealth) notwithstanding section 474 of the Act.

17. On 4 February 2003 the High Court gave judgment in S157/2002 v Commonwealth of Australia. The High Court determined that the privative clause provision in section 474 of the Act, properly construed, is a valid enactment. It found the proper construction of the Act, including section 474, imposed an obligation of providing a fair hearing as a limitation upon the decision-making authority (see per Gleeson CJ at 37-38, Gaudron, McHugh, Gummow, Kirby and Hayne JJ at 83; and per Callinan J at 160).

18. 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. The decision in S157/2002 overrules NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449. It does so necessarily in relation to the Tribunal's obligation to accord procedural fairness and in relation to the way in which NAAV found that section 474 had expanded the jurisdiction of the Tribunal.

19. 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 the 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 & Indigenous Affairs v Yusuf (2001) 180 ALR 1 at 21).

20. The Tribunal is required to consider the elements of each of the claims made by the applicant. The Tribunal is empowered to exercise all of the powers and discretion 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, Division 3, Subdivision AB of the Act.

21. It is a matter for the Tribunal as to the probity it accords the various aspects of the evidence put before it. The Tribunal is not required to adopt an uncritical acceptance of all and any allegations put before it by the applicant.

22. The Tribunal made reasoned findings based upon the inferences which were reasonably open to it to draw. As was stated by McHugh J in re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, (67):

[A] finding on credibility ... is the function of the primary decision-maker par excellence.

If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.

23. There is no express statutory obligation on the Tribunal to tell the applicant of its concerns in relation to her demeanour. Section 424A obliges the Tribunal to provide the applicant with particulars of any information received by it which would be the reason or part of the reason for affirming the decision. This is not inclusive of the Tribunal's thought processes in evaluating and deciding upon the material before it:-

a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s.424A(1).

(Tin v Minister for Immigration & Multicultural & Indigenous Affairs (2000) FCA 1109, (51-54)).

24. 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 herself. 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.

25. Whatever be the scope or extent of jurisdictional error, there is nothing in the material before me which could produce a finding of jurisdictional error or breach of procedural fairness such as is reviewable under s.39B of the Judiciary Act 1903 (Cth) or s.75 of the Constitution of Australia.

26. The Tribunal's decision is a privative clause decision for the purposes of section 474 of the Act. This court must construe s.474(1) according to the principles stated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CWR 598 at 615. In addition there must be no breach of an inviolable limitation said to be essential to a valid decision (as referred to in NAAV).

27. I do not accept the Tribunal failed to comply with section 430 of the Act. Even had it done so the requirements of this section are addressed to obligations imposed upon the Tribunal once it has completed its exercise of jurisdiction rather than provisions which attract the jurisdiction of decision-makers under the Act. Thus s.430 obligations cannot be construed as inviolable limitations, breach of which will invalidate the Tribunal's decision notwithstanding s.474(1).

28. I am satisfied that the criteria as set out in Hickman are satisfied and that there has been no breach of an inviolable limitation.

29. There is no evidence before me that the decision-maker was animated by any personal bias against the applicant or 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, nor those relevant to the decision to be made. There is no evidence which would support the inference of actual bias. Indeed this is now not argued by the applicant in any event.

30. I dismiss the application and order that the applicant pay the respondent's costs pursuant to Part 21, Rule 21.10 of the Federal Magistrates Court Rules.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Deputy Associate: T. Jones

Date: 30 April 2003
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia