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

WAIP v Minister for Immigration [2003] FMCA 201 (23 May 2003)

WAIP v Minister for Immigration [2003] FMCA 201 (23 May 2003)
Last Updated: 28 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAIP v MINISTER FOR IMMIGRATION
[2003] FMCA 201



MIGRATION - Review of decision of the Refugee 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

Judiciary Act 1903

Migration Regulations 1994

S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicants S134/2002 (2003) 195 ALR 1

Minister for Immigration & Multicultural Affairs v Guo Ping Gui (1999) FCA 1496

Craig v South Australia (1995) 184 CLR 163

MIMA, Re; Ex parte Cohen (2001) 177 ALR 473

Chan v MIEA (1989) 169 CLR 379

Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 180 ALR 1

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

SDAV v MIMIA (2002) FCA 1022

Minister v Haj Ibrahim (2000) HCA 55

MIMA v Eshetu (1999) 197 CLR 611

Minister for Immigration & Multicultural Affairs v Gui [1997] FCA 1496

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

MIEA v Guo (1997) 191 CLR 559

Applicant:
WAIP



Respondent:


MINISTER FOR IMMIGRATION & MULTICURAL & INDIGENOUS AFFAIRS



File No:


WZ234 of 2002



Delivered on:


23 May 2003



Delivered at:


Melbourne



Hearing Date:


13 December 2002



Judgment of:


Hartnett FM



REPRESENTATION

Counsel for the Applicant:


Mr McIntyre SC



Counsel for the Respondent:


Ms Price



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

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

PERTH


WZ234 of 2002

WAIP


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
History

1. These proceedings were transferred to this Court from the Federal Court of Australia by order of Nicholson J made on 31 October 2002.

2. The proceedings were heard concurrently with the matter of WAIT v Minister for Immigration & Multicultural & Indigenous Affairs. Each of Counsel for the applicants and the respondent submitted that such a hearing was appropriate in the circumstances of each of the proceedings and consented to this course. Counsel for the applicants submitted to the Court that the Court should await the handing down of decisions by the High Court in S157/2002 v Commonwealth of Australia [2003] HCA 2 and Re Minister for Immigration Multicultural & Indigenous Affairs; ex parte Applicants S134/2002 (2003) 195 ALR 1 before a publication of reasons and the making of orders. At the conclusion of the hearing I indicated to both Counsel that I would adopt that course in both matters. Accordingly, these reasons have been published and orders made post 4 February 2003 when the High Court handed down the judgments referred to.

3. The current state of the law is such I must determine whether there has been an error of law on the part of the Refugee Review Tribunal which would enliven the entitlement to an order under s.39B of the Judiciary Act 1903 notwithstanding s.474 of the Migration Act 1958.

4. The proceedings were commenced by the applicant by the filing on

11 September 2002 of an application under s.39B of the Judiciary Act 1903 and Part 8 Division 2 of the Migration Act 1958. The details of the applicant's claim were set out in an accompanying affidavit filed by him on 11 September 2002. In particular, in paragraph 3 of that affidavit, sub-paragraphs 1 to 4 inclusive, the applicant claimed the decision of the Refugee Review Tribunal:

"Involved an error of law, being an error involving an incorrect interpretation of the term `well-founded fear'. The RRT failed to consider persecution in `near foreseeable future'.

... 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 its decision, and therefore committed a jurisdictional error.

... wrongly understood most of my claim and the reasons for rejection of the material claims are unreasonable, irrational and illogical, lack proportionately, no evidence, uncertainty and bad faith. The RRT also not complied with statutory rules.

... failed to follow procedural fairness according to the Muin and Lie cases of High Court of Australia".

5. Various procedural orders were made by consent on 9 October 2002 with which the applicant has not complied. However the applicant is a litigant in person and I accept that such compliance may have been difficult for him.

6. The applicant is a citizen of Sri Lanka who arrived in Australia and applied for a protection (Class XA) visa on 19 July 2001. He was taken into Immigration custody upon arrival and remains in detention at Port Hedland IRTC. He is a 30 year old man of Tamal ethnicity from the north of Sri Lanka.

7. The applicant's completed protection visa application was lodged with the Department of Immigration and Multicultural Affairs on 13 August 2001. By correspondence dated 20 June 2002 the Department notified the applicant that he had been refused a protection visa. The applicant sought a review of that decision from the Refugee Review Tribunal by application dated 24 June 2002. That review hearing took place on

2 August 2002 and subsequently by a continuation hearing on 13 August 2002. The Tribunal handed down its decision on 16 August 2002 and affirmed the decision not to grant a protection visa.

8. Under s.65(1) of the Migration Act 1958 (Cth) (the Act) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.

9. Sub-section 36(2) of the Act relevantly 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.

10. The applicant claimed that he was at risk of persecution for reasons of political opinion.

The Tribunal hearing

11. The Tribunal accepted that the applicant resided in northern Sri Lanka until some years ago when he went to Columbo for several months. The Tribunal accept that the applicant had problems with the LTTE and the Sri Lankan Army at some time in the past. The RRT found the applicant's refusal to tell the truth about the period between leaving Sri Lanka and arriving in Australia raised serious questions about his general credibility (CB 183).

12. The Tribunal accepted that the applicant was forced to attend LTTE rallies whilst still at school and to assist the LTTE by digging trenches and providing services at his relative's shop during the time the LTTE controlled the Jaffna Peninsula. The Tribunal accepted that the applicant was encouraged to join the LTTE and that he was forced to go to LTTE controlled areas. However the applicant did not join the LTTE and did not suffer serious harm because of this. The Tribunal found the only time the applicant was detained by the LTTE was shortly after they took control on the Jaffna Peninsula and he was questioned about his association with another Tamal group.

13. The Tribunal also accepted that the applicant was detained and questioned on several occasions noting that it was also plausible that he was beaten or even tortured on one or more of these occasions. However, the Tribunal concluded that the fact that the applicant was released after a brief time in detention indicated that he was not seriously suspected of involvement with the LTTE (CB 185).

14. The Tribunal analysed the applicant's claims against Country Information and was not satisfied that there was a real chance that the applicant would face serious harm at the hands of the LTTE if he returned to Sri Lanka. Even were it to accept that the LTTE would seek to harm the applicant if he returned to his hometown the Tribunal was of the view that the applicant could seek the protection of the Sri Lankan authorities in his local area or elsewhere in Sri Lanka (CB 185).

15. In particular, the RRT considered the applicant's concern based on historical events and the applicant's knowledge and perception of those that many previous attempts to reach a peaceful settlement in Sri Lanka had failed. Likewise, the applicant's concern that breaches of the ceasefire had been reported. The RRT gave due consideration to the applicant's putting forward of those matters and responded to them.

16. The Tribunal did not accept that the applicant was constantly or regularly detained and ill treated by members of the Army for a number of years prior to his departure from Sri Lanka, as he claimed. The Tribunal noted that the applicant was given permission by the Army and the local authorities to travel south on two occasions and that on both occasions he made the trip under the protection of the Sri Lankan Army which suggested that he was not suspected of belonging to the LTTE. The applicant was also able to obtain a passport in his own name and leave Sri Lanka through the international airport without any difficulty (CB 186-187).

17. The Tribunal found some of the evidence the applicant gave about his situation in Sri Lanka in recent years confusing and unconvincing.

18. The Tribunal noted there had been a ceasefire in Sri Lanka since the applicant's departure and that members of the LTTE were now permitted to move freely throughout most of Sri Lanka. The Tribunal found, however, that the applicant was not a member or a supporter of the LTTE nor had ever willingly assisted them in any way. The Tribunal found nothing in the evidence before it indicating that someone of the applicant's background would face a real chance of persecution at the hands of the Sri Lankan authorities for reasons of political opinion or imputed political opinion or any other Convention reason.

Consideration

19. Senior Counsel for the applicant argued that the RRT asked itself the wrong legal question and had thus failed to decide the question that it had to decide [see Brennan, Toohey and McHugh JJ in Craig v South Australia (1995) 184 CLR 163 at 179; MIMA, Re; Ex parte Cohen (2001) 177 ALR 473; MIMA v Yusuf (2001) 180 ALR at [82] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed)]. Essentially, the applicant claimed that the Tribunal failed to ask the correct question, that was, whether a temporary ceasefire and peace talks would be sufficient to allay a well-founded fear in the applicant based on the past experience of the applicant. In determining whether the applicant had a well-founded fear of persecution, Counsel for the applicant argued that the Tribunal was obliged to, and failed to:

"evaluate the mental and emotional state and the objective circumstances"

of the applicant (Chan v MIEA (1989) 169 CLR 379 per Gaudron J at paragraph 12). Although conceding the RRT considered the evidence of the objective circumstances it was argued that the RRT failed to make an assessment of the applicant's fear of persecution taking into account his mental and emotional state.

20. 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 (Cth) notwithstanding section 474 of the Act.

21. 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).

22. 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 a 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).

23. The Tribunal is required to consider the elements of each of the claims made by the applicant. The Tribunal did so. 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.

24. 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. Indeed the RRT did not accept a number of the claims made by the applicant.

25. 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 at [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.

26. 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 himself. The Tribunal came to a conclusion that the applicant did not have a well-founded fear of persecution for Convention reasons which included a canvassing of objective and subjective matters put before it. 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.

27. On a fair reading of the Tribunal's reasons the RRT has considered all of the claims made by the applicant including past fears held by and mistreatment suffered by the applicant. Historical fear of the LTTE and the army were taken into account (see SDAV v MIMIA (2002) FCA 1022) as was the applicant's claimed present fear of persecution for a Convention reason (see Minister v Haj Ibrahim (2000) HCA 55 at [141]). The Court's role is not merits review. The findings made by the RRT and matters taken into account by it were within its jurisdiction. It cannot be said that the satisfaction of the RRT was based on findings or inferences of fact not supported by some probative material or logical grounds (Gummow J in MIMA v Eshetu (1999) 197 CLR 611 at [145]).

28. The approach of the Tribunal in assessing whether the applicant had a well-founded fear of persecution as at the date of the determination of the application was in accordance with the principles in Minister for Immigration & Multicultural Affairs v Gui [1997] FCA 1496. The Tribunal asked itself the correct question in relation to whether the applicant had a genuine fear founded upon a real chance of persecution for a Convention stipulated reason. It correctly assessed whether the applicant had a well-founded fear of persecution at the date of determination of the application in light of past and present information about the situation in Sri Lanka, Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and MIEA v Guo (1997) 191 CLR 559. There is nothing in its reasons to suggest that it has not understood the relevant law and hence has failed to apply the law correctly to the facts. The Tribunal addressed the past experiences and fears of the applicant, considered the changes in Sri Lanka and effectively determined that any subjective fear that the applicant had was no longer well founded. On a fair reading of its reasons there is a proper consideration of the past, present and, on the evidence before it, the likely future.

29. 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). I shall dismiss the application

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: L.M.Dorian

Date: 23 May 2003
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