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

NAJZ v Minister for Immigration [2003] FMCA 76 (7 March 2003)

NAJZ v Minister for Immigration [2003] FMCA 76 (7 March 2003)
Last Updated: 17 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAJZ & MINISTER FOR IMMIGRATION
[2003] FMCA 76



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



Migration Act 1958 (Cth), s.474

Migration Legislation Amendment (Procedural Fairness) Act 2002

S157/2002 v Commonwealth of Australia (2003) HCA 2

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

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration, Multicultural and Indigenous Affairs v Yusef (2001) 180 ALR 1

Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA

Applicant:
NAJZ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ644 of 2002



Delivered on:


7 March 2003



Delivered at:


Melbourne



Hearing Date:


13 November 2002



Judgment of:


Hartnett FM



REPRESENTATION

Counsel for the Applicant:


Mr Daniel Crennan



Counsel for the Respondent:


Mr Horan



Solicitors for the Respondent:


Clayton Utz



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

MELBOURNE


MZ644 of 2002

NAJZ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The matter proceeds in this Court following an order that it be transferred into the Federal Magistrates Court of Australia, that order being made by Allsop J on 19 June 2002 in the Federal Court, New South Wales District Registry. On that same date His Honour transferred the proceedings from the New South Wales District Registry to the Victorian Registry of the Federal Court before transfer to the Federal Magistrates Court.

2. The applicant filed his application on 29 May 2002. He filed concurrently an affidavit. He sought under s.39B of the Judiciary Act 1903 (Cth) that a writ of certiorari be directed to the Refugee Review Tribunal whom he had named as the second named respondent to quash its decision to refuse to grant a protection visa to the applicant. Orders were subsequently made in the Federal Court removing the second named respondent, the Refugee Review Tribunal, from the proceedings. The applicant also sought an order that a writ of prohibition be directed to the Minister and further an order that a writ of mandamus be directed to the then second named respondent.

3. The applicant is a single man who was born on 10 August 1971 in Sri Lanka. He remains a citizen of Sri Lanka and arrived in Australia on 17 January 1994 on a student visa. He is of Tamal ethnicity and Hindu religion. His father, mother and two sisters continue to reside in Sri Lanka. His brother is an Australian citizen. Following his arrival in 1994 the applicant studied at Taylors College followed by RMIT and ultimately he completed a Bachelor of Science (in Engineering) at Monash University in Melbourne, Victoria.

4. On 2 January 1999 the applicant returned to Sri Lanka to visit his mother who was very ill. He had not previously left Australia since his arrival in 1994.

5. The applicant's visit to Sri Lanka occurred between 1 January 1999 being his arrival date, and 29 January 1999 being his departure date. The applicant claims that on 21 January 1999 whilst walking home from visiting a friend he was suddenly arrested. He claims that he was forced into a vehicle and blindfolded. He claims that over a period of 24 hours he was detained, interrogated, questioned and abused. Following this detention he made urgent preparations to leave Sri Lanka and he returned to Australia.

6. On 29 July 1999 - some six months later - the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) ("the Act"). On 8 December 1999 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa to the applicant.

7. On 7 January 2000 the applicant applied for a review of that decision (under s.414 of the Act) by the Refugee Review Tribunal ("the Tribunal").

8. On 9 April 2002 the Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa.

The Tribunal Hearing

9. The Tribunal accepted that the applicant is of Tamal ethnicity and accepted his account of where he lived, worked and studied. Furthermore, the Tribunal accepted that the applicant has some Tamal friends here in Australia.

10. The applicant claimed that his parents' residence in Columbo was in a three storey building, his parents occupying the top floor and a production manager and the building owner a Mr Ravindaran living on the middle floor with his wife's parents and sometimes with his nephew, an accountant by the name of Jayan. The applicant alleges these two persons, namely Mr Ravindaran and his nephew Jayan were arrested and detained for some six months in mid-1998 with the nephew being tortured and Mr Ravindaran being accused of being the LTTE chief of intelligence in Columbo and of knowing where the Tigers' weapons were hidden in the city.

11. The applicant claimed his arrest and detention in January 1999 arose from, he believed, his association with Mr Ravindaran. The applicant claimed to have been questioned about whether he knew or took part in any Tiger activities in Australia.

12. An affidavit was produced to the Tribunal dated 16 June 2000 sworn by the applicant's father. He deposed that in March 1999 two army personnel came and enquired about the applicant's whereabouts in Australia, his education and association with Mr Ravindaran and Jayan. Further questions were asked, including his expected return to Sri Lanka. Again, in August 1999 the father was questioned as to when the applicant would return from Australia.

13. The applicant claimed further that his sister was questioned at her workplace and subsequently detained for four days, beaten and sexually assaulted. The applicant claimed that the police had warned his sister that they knew the applicant was an LTTE activist and that she was released on condition that she inform the police of the applicant's movements.

14. After a bomb attack at the airport in mid-2001 the applicant alleged that again security forces came to his family's home and questioned his family following the discovery of a vehicle used by the LTTE people involved in the area near to the applicant's home. As a result of his parents being in fear they have moved to Jaffna as has one of his sisters. His other sister remains in Columbo and one of the sister's was soon to migrate to Australia as a skilled migrant.

15. The Tribunal accepted that Mr Ravindaran and Jayan were arrested, detained and mistreated as described by the applicant. However, the Tribunal did not accept that security authorities believed that Mr Ravindaran was an LTTE intelligence chief with knowledge of the location of weapons. If it were the case, the Tribunal found, then Mr Ravindaran would not have been allowed to be freed from detention as he was. Furthermore, the Tribunal found the applicant's account of being picked up, blindfolded, detained for a day and interrogated, highly improbable. The Tribunal found no evidence that the authorities would need to blindfold the applicant and take him to an address other than his parents home or into custody. The Tribunal did not accept that he was targeted as a person of concern and followed as he claimed.

16. In rejecting the applicant's account of his arrest and detention in January 1999 the Tribunal had regard to independent country information such that it is young Tamal men from the north or east of the country without identity papers and without a valid reason for being in Columbo, who cannot speak Singhalese and/or who have recently arrived from a war zone, who can be at risk of further investigation if they come to the notice of the authorities. The applicant's association with the north was limited to having spent part of the year at school there. He had documents to indicate who he was and where he had been. He speaks Singhalese and he had a valid reason for being in Columbo.

17. The Tribunal also did not accept the applicant's evidence that the Sri Lankan authorities considered that he associated with LTTE people or activities in Australia. The activities of the applicant in his association with Tamals in Australia appeared to the Tribunal to be entirely social and the Tribunal found it implausible that there had been any interest in them on the part of the security authorities in Sri Lanka.

18. The Tribunal did not accept that the security authorities had continued to look for and make accusations about the applicant to his family as claimed by him in March and August of 1999 and in 2000 and again in 2001. The Tribunal did not accept that there were security taps in his parents' telephone for any reason connected to the applicant. The evidentiary value of the affidavit from the applicant's father was found to be far outweighed by the rest of the applicant's evidence about his circumstances. The Tribunal found completely implausible the applicant's claim that his sister was asked about the applicant who by then had been out of the country for some 18 months or that she was asked to report on his movements as a condition of her release. Furthermore, the Tribunal did not accept that the applicant's parents were subjected to any questioning about the applicant at the time of the airport bombing.

19. The Tribunal then turned its mind to the applicant being of Tamal ethnicity. The Tribunal referred to independent country information indicating that young Tamals are caught up in the security authorities' attempts to locate LTTE operatives. The Tribunal thus focussed its attention on what might occur if the applicant were to return to his country. The Tribunal considered it probable that the applicant would be questioned if he were to return to Columbo as Tamal people can be. The Tribunal stated that the central question to decide in determining whether the applicant's fear of persecution was well founded was whether there was a real chance that he would be subjected to further investigation following such questioning as the Tribunal accepted could occur (Case book 17). The Tribunal considered that the chance that the applicant would be subjected to further questioning and so be at risk of possible mistreatment whilst in custody was remote. In forming that conclusion, the Tribunal had regard to country information which indicated that it is young Tamal people born or who lived in the north and east of the country who faced particular risk of being suspected of association with terrorism. In that regard, the applicant was born in Columbo and his association with the north was for a year when he was 12. The Tribunal concluded the factors which give rise to a real chance that a person might be subjected to further investigation, beyond routine checking, were not evident in the applicant's circumstances (Case book 128).

20. In summary, the Tribunal was not satisfied from the evidence available that there was a real chance that the applicant might experience persecution because of his ethnicity and associated imputed political opinion or for any of the other reasons specified in the Refugees Convention. Further, the Tribunal found that the applicant's fear of what might follow his return to Sri Lanka was not well founded and that he was not a refugee.

Consideration

21. Following the High Court decision in S157/2002 v Commonwealth of Australia (2003) HCA 2 I must determine whether there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B of the Judiciary Act 1903 (Cth) not withstanding s.474 of the Act.

22. On 4 February 2003 the High Court gave judgment in S157/2002 v Commonwealth of Australia (2003) HCA 2. The High Court determined that the privative clause provision is s.474(1) of the Act, properly construed, is a valid enactment. It found the proper construction of the Act, including s.474 imposed an obligation of providing a fair hearing as a limitation upon the decision-making authority: see per Gleason CJ at (37)-(38); Gaudron, McHugh, Gummow, Kirby and Hayne JJ at (83); and per Callinan J at (160). 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.

23. The decision in S157/2002 overrules NAAV v Minister for Immigration, Multicultural and 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 s.474 had expanded the jurisdiction of the Tribunal.

24. 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 and Indigenous Affairs v Yusef (2001) 180 ALR 1 at 21).

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

26. It is a matter for the Tribunal as to the probity it accords the various aspects of the evidence put before it (see Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611). The Tribunal is not required to adopt an uncritical acceptance of all and any allegations put before it by the applicant.

27. 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 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. There is no arguable jurisdictional error in the Tribunal's decision.

28. The Tribunal's decision is a privitive clause decision for the purposes of s.474(1) of the Act.

29. The applicant argued before me that although the decision related to the subject matter of the Act and was reasonably capable of reference to the power, the decision was not a bona fide attempt by the decision maker to exercise the power which the Act reposed in such decision maker. (See: R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598).

30. The question of what constitutes "bad faith" for the purposes of the Hickman principles has been considered by a number of Judges of the Federal Court. Bad faith is a serious matter involving personal fault on the part of the decision maker going beyond errors of fact or law. As said by Allsop J in NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA:

Bad faith is not just a matter of poor execution or poor decision making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question.

In attempting to establish lack of bona fides on the part of the decision maker the applicant submitted that upon an analysis of the decision of the particular Tribunal member out of 297 decisions 287 applications for review were not successful. Of the 10 decision regarding applicants whose country of origin was Sri Lanka none of the applications for review were successful. This, I found to be completely unhelpful and lacking in relevance. The Tribunal was entitled to accept or reject the claims of the applicant. That is the proper exercise of the Tribunal's fact-finding function. Any criticism of that by the applicant will not allow the applicant to succeed in this instance.

31. The applicant submitted that at p.13 of the transcript of proceedings the Tribunal member put a version of the applicant's account of his arrest to him which did not reflect the applicant's evidence and did not consider the applicant's evidence as it was given by him. I reject that submission. The Tribunal member was engaged in an exploration of the issues. Specifically, the Tribunal member said:

It sounds to me as though they just said

The Tribunal member then went on to put to the applicant:

was it in fact as it sounded to her or was it something different.

The instance provided was one in which the Tribunal attempted to test the claim of the applicant and obtain a response from him as to her concerns about that particular factual matter. Indeed the transcript of proceedings indicates the Tribunal member put to the applicant those matters of concern to her such as at p.21 why it was it took the applicant so long to apply for a protection visa. The applicant was given the opportunity to respond to this and many other matters raised by the Tribunal where the Tribunal had some difficulty in accepting matters put by the applicant.

32. I can find no lack of bona fides on the part of the Tribunal.

33. 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-three (33) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: L.M.Dorian

Date: 7 March 2003
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