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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.

WAIT v Minister for Immigration [2003] FMCA 200 (23 May 2003)

WAIT v Minister for Immigration [2003] FMCA 200 (23 May 2003)
Last Updated: 28 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAIT v MINISTER FOR IMMIGRATION
[2003] FMCA 200



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:
WAIT



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 233 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



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

PERTH


WZ 233 of 2002

WAIT


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
History

1. These proceedings were transferred from the Federal Court of Australia Western Australia District Registry into this Court by order made

31 October 2002 by Lee J.

2. The proceedings were heard concurrently with the matter of WAIP 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 applicant commenced proceedings under s39B of the Judiciary Act 1903 and Part 8, Division 2 of the Migration Act 1958 by the filing of an application on 18 September 2002. The details of claim were said to be set out in an accompanying affidavit which was filed the same date. That affidavit claimed, as set out in paragraph 3 that the decision of the Refugee Review Tribunal was infected by jurisdictional error in the following ways (and quoting from that paragraph):

"1. That the decision involved an error of law, being an error involving an incorrect interpretation of the term of "well founded fear". The RRT failed to consider persecution in "near foreseeable future". The RRT failed to take relevant consideration as about the previous previous talks, the weakness of the peace talk and the country information submitted to it.

2. The RRT 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 to its decision, and therefore committed a jurisdictional error.

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

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

5. The applicant is a citizen of Sri Lanka, being a 31 year old male who arrived in Australia by plane and was interviewed at the Perth International Airport on 24 July 2001. He made application for a protection (Class XA) visa which was received by the Department of Immigration and Multicultural Affairs on 14 September 2001. The applicant is currently in the immigration processing and reception centre at Port Hedland.

6. By letter dated 21 June 2002 the applicant was advised by the Department of Immigration and Multicultural Affairs that he had been refused a protection visa. The applicant sought a review of that decision from the Refugee Review Tribunal (RRT) in application received by it on 26 June 2002. He gave evidence at the hearing and was assisted by an Interpreter and represented by a migration agent. In its decision dated 26 August 2002 the Tribunal affirmed the decision of the delegate not to grant the protection visa.

7. The applicant in summary, claimed that he could not return to Sri Lanka because of his fear that both the Sri Lankan army and the opposition Liberation Tigers of Tamil Eelam (LTTE) would persecute him.

The Tribunal hearing

8. The Tribunal considered each of the elements of the applicant's claims and country information as contained in the Court Book. The Tribunal accepted the following:

a) That the applicant was a Sri Lankan Tamil from the Jaffna Peninsula;

b) That while the applicant was growing up on the Jaffna Peninsula the LTTE attempted to force him to join their organisation but he refused;

c) That the applicant was mistreated by the IPKF and witnessed atrocities committed by the IPKF. These forces however had left Sri Lanka in 1990 and there was therefore no basis for the applicant to fear being persecuted by them;

d) That between 1990 and 1995 the applicant was required to assist the LTTE in various ways whom were then in control of the Jaffna Peninsula;

e) That the applicant was arrested by the Army in the late 1990s and detained for a day on each occasion and that he was beaten and accused of being an LTTE supporter;

f) That in the late 1990s when the applicant first travelled overseas in an attempt to come to Australia and again when he passed through Columbo in the early 2000s, the applicant was arrested by the police at the lodge where he was staying and his relatives paid money to the police to obtain his release;

g) That the applicant was forced to close his shop but was not thereby deprived of his livelihood - the applicant's evidence being that he had a lot of fields and crops; and

h) That the applicant was again arrested in the late 1990's and detained for a day and arrested in the early 2000's and both detained for a number of days and tortured and accused of belonging to the LTTE (CB 211).

9. The Tribunal however did not accept the following:

(a) That the applicant went into hiding after his last arrest in the early 2000s and that the Army believed he had joined the LTTE. Nor that the Army searched for him unsuccessfully over the course of the next year while he hid in his relatives' house in Jaffna and in a friend's house in Vadamarachi; and

(b) That the Army cordoned off town X in an attempt to arrest the applicant.

10. The Tribunal found that the applicant would not have been able to leave Sri Lanka travelling on a passport in his own name if the Army had been searching for him for a year and had suspected that he would try to make his way to Columbo in order to slip away overseas as claimed by the applicant.

11. The Tribunal considered that the applicant had left Sri Lanka legally and that he was not of interest to the Sri Lankan authorities at the time he left Sri Lanka.

12. Importantly, the RRT had difficulty "in accepting significant aspects of his [the applicant's] evidence" (CB 208). It did not accept the applicant's account of the circumstances in which he left the Jaffna Peninsula.

13. The Tribunal noted that its task was to assess whether an applicant for a protection visa satisfied the definition of a refugee as at the date of its decision:

having regard to all the circumstances placed before it up to that date.

Minister for Immigration & Multicultural Affairs v Guo Ping Gui (1999) FCA 1496 at par [35] per Heerey, Carr and Tamberlin JJ (CB 212).

14. The Tribunal put to the applicant that a ceasefire was now in force between the Sri Lankan government and the LTTE and that the Australia Department of Foreign Affairs and Trade had reported that security had been eased throughout Sri Lanka as a result of the ceasefire. In addition, the parties had agreed that search operations and arrests would not take place under the Prevention of Terrorism Act. Rather, arrests would be conducted under the criminal code and in accordance with due process of law. It noted in advice in May 2002 the Australian Department of Foreign Affairs and Trade had referred to the ceasefire as being on track (CB 212). Whilst the Tribunal accepted that there had been rallies against the government and some parties had declared their opposition to the peace talks, the Tribunal considered it significant that both the opposition People's Alliance and the leaders of the Buddhist clergy, the Mahanayakes, had backed the peace process and that the peace initiative differed from earlier ones in the past which had failed because of the involvement of Norway in brokering the peace talks.

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 concluded that there was nothing in the independent evidence before it to suggest that there was a real chance that the applicant would be persecuted for a Convention reason as a result of such breaches of the ceasefire agreement if he returned home on the Jaffna Peninsula now or in the reasonably foreseeable future (CB 213). The Tribunal also did not accept that there was a real chance that the applicant would be arrested by the LTTE if he returned to his home on the Jaffna Peninsula now or in the reasonably foreseeable future, nor that he would be forcibly recruited by the LTTE upon return home to his home on the Jaffna Peninsula now or in the reasonably foreseeable future.

17. 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.

Consideration

18. 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.

19. 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).

20. 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).

21. 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.

22. 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.

23. 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.

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 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.

25. 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]).

26. 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.

27. 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-seven (27) 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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