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MIGRATION: Application for review of decision of the Refugee Review Tribunal - no jurisdictional error - privative clause decision - application dismissed.

NALS v Minister for Immigration [2002] FMCA 220 (10 October 2002)

NALS v Minister for Immigration [2002] FMCA 220 (10 October 2002)
Last Updated: 3 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NALS v MINISTER FOR IMMIGRATION
[2002] FMCA 220



MIGRATION: Application for review of decision of the Refugee Review Tribunal - no jurisdictional error - privative clause decision - application dismissed.



Migration Act 1958 (Cth)

Judiciary Act 1903

Migration Legislation Amendment (Judicial Review) Act 2001

NABM of 2001 v MIMIA [2002] FCAFC 294

NAAV v MIMIA [2002] FCAFC 228

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

Zahid v MIMIA (2002) FCA 1108

Craig v South Australia (1995) 184 CLR 163

MIMA v Yusef (2001) 180 ALR 1

Kianfar v MIMA [2001] FCA 1754

Htun v MIMA [2001] FCA 1820

NABE v MIMIA [2002] FCA 281

SBAB v MIMA [2002] FCAFC 161

SBBK v MIMIA [2002] FCA 265

NANG v MIMIA [2002] FCA 1138

Applicant:
NALS



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 524 of 2002



Delivered on:


10 October 2002



Delivered at:


Sydney



Hearing Date:


19 September 2002



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr G Kennett



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) That the Application be dismissed.

(2) That the Applicant pay the Respondent's costs fixed in the amount of $4,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 524 of 2002

NALS


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The application

1. This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) made on 13 June 2002 affirming a decision of the Respondent (the Minister for Immigration and Multicultural and Indigenous Affairs) not to grant a protection visa to the Applicant.

2. The application was filed in the Federal Court on 20 June 2002. The proceedings were transferred to this Court by order of Whitlam J on

5 July 2002. The Applicant was in detention at the time of his application. He was, and is, self represented. The application form lists a number of claims and refers to an affidavit attesting that the claims are true and that the applicant fears persecution. The claims made in his application are:

a) That he is from Sri Lanka, from the sensitive area from which the LTTE (the Liberation Tigers of Tamil Eelam) operate, that his father is Sinhalese and mother is Tamil. He claims that during terrorist activities police assume Tamil are responsible so he has been taken into custody and harassed by police many times.

b) That one of his uncles is a Tamil supporter of LTTE and that because of his support/connection the applicant has been picked by the police for any connection with the Tamil Tigers, kept in prison and beaten by police on many occasions.

c) That on one occasion in 1985 an uncle was shot dead by Tamil Tigers while dropping off his father at a bus stop. His father escaped. His family has been receiving threats on the telephone from the terrorists. Recently his father was taken into custody by the police for his uncle's connections/support of the Tamil Tigers.

He asserts generally that the RRT did not take into account these facts.

3. The Respondent argued that the application was insufficient to engage the jurisdiction of the Federal Court and thus the jurisdiction of this Court as the application did not identify the source of jurisdiction relied upon or the relief sought. While the subject matter of any dispute is not clearly identified, as conceded by the respondent it is apparent from paragraph 3 of the details of claim that complaint is made about a decision of the tribunal. The Respondent argued that the application did not to give rise to any controversy capable of being resolved by the exercise of judicial power - let alone one which the court could be satisfied was within the bounds of its jurisdiction.

4. By section 483A of the Migration Act 1958 this Court has the same original jurisdiction in a matter `arising under' that Act as the Federal Court of Australia. The Full Court of the Federal Court considered a challenge to the jurisdiction of the Federal Court because of alleged deficiencies in an application in NABM of 2001 v MIMIA [2002] FCAFC 294. The application in that case purported to be made under repealed provisions of the Migration Act 1958 (Cth) and made no reference to s.39B of the Judiciary Act. At first instance Beaumont J had taken into account the fact that the applicant was a litigant in person in determining that it was appropriate to address the issue of law raised by the application. On appeal the respondent again challenged the jurisdiction of the court to deal with the application on the basis that it could not be characterised as an application for relief under s.39B and could not be amended to invoke s.39B outside the

28-day time limit imposed by s.477 as this would be tantamount to making a new application. The Full Court rejected this argument. The Court indicated that whether an application invoked the jurisdiction of the court conferred by s.39B was a matter of substance not form. However the initiating process, although not framed in terms of a writ of mandamus or prohibition or an injunction, sought relief of a kind that was available only under s.39B and clearly identified the decision challenged (which could only be challenged in the Federal Court pursuant to s.39B). It was held that the jurisdiction was properly invoked. It added:

"We add this observation. There may be cases where the application neither specifies the relief sought nor identifies the decision under challenge. We express no view as to whether such an application should be regarded as invoking the jurisdiction conferred by s39B(1) of the Judiciary Act, since the point has not been argued. Nothing we have said should be taken, however, as implying that an application in that form could not invoke the jurisdiction so conferred."

5. In this case the application identifies the decision under challenge (that of the Tribunal) but does not specify the relief sought. It was filed within the period specified in s.477 of the Migration Act. The tribunal decision could only be challenged under s.39B of the Judiciary Act. The applicant in this case is self-represented, from a non-English speaking background and filed his application while in a detention centre. The absence of an express reference to the particular orders sought could be addressed, if necessary, by the court granting leave to the applicant to amend his application. Such a procedure would not in any way disadvantage the Respondent. To hold otherwise would, however, result in an injustice to a litigant in the position of the Applicant.

6. However, the Respondent indicated that if the applicant failed on other grounds a ruling on the question of whether the jurisdiction was properly invoked would not be required. As outlined below the applicant has not established a ground for relief under section 39B of the Judiciary Act. Hence it is unnecessary for me to decide the question of whether the jurisdiction was properly invoked.

The Tribunal decision

7. The Applicant is a national of Sri Lanka who came to Australia in February 2001 on a student visa. He lodged an application for a protection visa on 28 February 2002. He claimed, and the Tribunal accepted, that he is of mixed Sinhalese and Tamil heritage. The Tribunal also accepted the Applicant's claim that in 1990 the army had detained him for some time. However, since many other young men of both Sinhalese and Tamil background were also detained, the Tribunal did not accept that this constituted `persecution' in the conventional sense. Further, the Tribunal did not consider that this matter would cause the Sri Lankan authorities to have any ongoing interest in the Applicant.

8. The Applicant also claimed to have been detained and mistreated in 1998 and to have left Sri Lanka in 2001 out of a fear of further harassment. The Tribunal did not accept these claims. As a result it concluded that:

i) it was not satisfied that the Sri Lankan authorities had any adverse interest in the applicant because of his ethnicity or any imputed political opinion;

ii) it did not accept that he had left Sri Lanka as fugitive from persecution, or that he had a genuine fear of persecution;

iii) even if he had been arrested in 1998 as claimed, the fact that he had lived in Sri Lanka without being harassed until early 2001 indicated that there was no real chance that he would be persecuted.

Accordingly the Tribunal could not be satisfied that the Applicant was a person to whom Australia owed protection obligations under the Refugees Convention.

The issues

9. The Applicant claims that the Tribunal did not take into account the assertions of fact listed in par [2] above. The Respondent asserts that, with one exception, those claims that were raised by the applicant before the Tribunal were dealt with in the Tribunal reasons for decision. It was, however, accepted by counsel for the Respondent that one such claim - the shooting of his uncle in 1985 by Tamil Tigers - was articulated in writing to the Department in the statement in support of the protection visa application provided by the Applicant on

27 February 2002 but was not discussed by the Tribunal in its reasons for decision. Other claims listed in the application were not raised before the Tribunal. The applicant conceded in the hearing that his father was taken into custody by the police because of his uncle's support and connections with the Tamil Tigers after the Tribunal decision was made.

The applicable law

10. The Tribunal's decision is a privative clause decision within the meaning of section 474(2) of the Migration Act and is such subject to the limitations of judicial review prescribed by section 474(1) which were introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 as applicable to all applications made to the Court on and from 2 October 2001.

11. The proper construction of section 474 has now been the subject of detailed consideration of the Full Court of the Federal Court in NAAV v MIMIA [2002] FCAFC 228. Each member of the Court delivered a separate judgment in relation to each appeal. All agreed that section 474(1) is constitutionally valid and that the amendments have removed what would otherwise be errors in the making of some migration decisions from the scope of judicial review by validating decisions that might otherwise have been invalid.

12. There was broad agreement that section 474(1) is not to be read literally but is to be construed in the same manner as the kind of privative clause considered in any decisions of the High Court in particular R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In that case Dixon J observed at 615:

"Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation and that it is reasonably capable of reference to the power given to the body."

13. There was also broad agreement in NAAV that the purported exercise of power by the decision maker must not be one that contravenes what is variously described as a `inviolable limitation or restraint' (Black CJ at [12]), a `final limitation upon the powers, duties and functions of the decision maker' (Von Doussa J at [619]) or a `structural' element in the operation of the Act (Black CJ at [37]). As a matter of construction, the broad statement of legislative intention expressed in a privative clause may be displaced by a provision which makes clear Parliament's intention that the observance of some procedure or the proper consideration of some issue is to be precondition for a valid decision. As outlined by Sackville J in Zahid v MIMIA (2002) FCA 1108, there is a difference between the approach taken by the majority (Black CJ, Beaumont and Von Doussa JJ) and that of the minority (French and Wilcox JJ) in relation to the correct approach to such final or inviolable limitations on the decision-maker's powers.

The present case

14. I have considered the Tribunal's treatment of the claims made in the application for review. The Tribunal accepted the evidence of the Applicant's mixed ethnic background and considered the difficulties that might arise as a result of the Applicant's part Tamil heritage and where he and his family lived in Sri Lanka (court book 96 and 97). It also considered his claims of being taken into custody and harassed, accepting his evidence of detention in 1990 but not in 1998 (court book 96). It also considered the claims relating to his uncle's support/ connection with the Tamil Tigers and his claimed beatings by police. The tribunal made adverse findings on the applicant's credibility and, as set out above, rejected the substance of his claims. The alleged detention of his father took place after the tribunal decision was made. Clearly events which occur after the hearing cast no doubt on the legal correctness of the Tribunal decision

15. Thus the issue raised for consideration is whether the alleged failure by the Tribunal to deal with the claim that the Applicant's uncle was shot dead by Tamil Tigers in 1985 (and the alleged telephone threats to his family from `terrorists') amounted to an error capable of grounding review. This argument is based on the principles enunciated by the High Court in Craig v South Australia (1995) 184 CLR 163 and MIMA v Yusef (2001) 180 ALR 1 that a decision-maker will fall into jurisdictional error if it identifies a wrong issue, asks itself the wrong question, ignores relevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion.

16. It is necessary to look closely at these assertions in the context of the Applicant's claim of persecution. It is clear from his statement in support of his protection visa application that he identifies as Sinhalese and claims fear of persecution on the ground of LTTE sympathies that have been or will be imputed against him as a result of his Tamil background and his association with an uncle who has sympathies for and an involvement with the LTTE. He claims that if he returns to Sri Lanka he will be harassed by police for suspected involvement with the Tamil Tigers.

17. While the Tribunal's reasons do not expressly analyse the Applicant's claim that his uncle was shot dead by Tamil Tigers in 1985, the claim is raised with him in the course of the hearing as indicated by the Tribunal in its reasons for decision (court book 80). The Tribunal indicated that during the hearing it had asked the Applicant about his fear of persecution in Sri Lanka. He told the Tribunal "that his mother, being a Tamil, put him under suspicion when an incident occurred" (court book 80). He gave as an example the burning of his mother's home in 1983. When asked why this had not been mentioned in his application he explained that the Department had only asked about hardships he had experienced. The Tribunal then asked him to explain why he had chosen to mention in paragraph 4 of his written statement dated 27 February 2002 the experiences of his uncle and his father in 1985. He replied that this was because his father was involved with his uncle. The Tribunal gave him an opportunity to mention anything else not previously mentioned. He replied that there was nothing else like that. This is the only reference to this event in the reasons for decision.

18. The substance of the Applicant's claim is his alleged fear of persecution by the Sri Lankan authorities because of his part Tamil heritage and associations. This is clear from the statement in support of his application (court book 16), the letter to the Department from his advisers dated 18 March 2002 (court book 35) which states that it is the Applicant's `imputed sympathies with the LTTE... that are at the core of his application for a protection visa' and from the tribunal reasons for decision. The event in 1985 was the shooting of his uncle by Tamil Tigers. This raises alleged mistreatment by the Tamil Tigers in an application based on a claimed fear of persecution because of support and associations with the Tamil Tigers. The applicant does state in paragraph 3 of his application for judicial review that "my family is been receiving threats on the phone from the terrorists" but there is no record of such claim having been put to the Tribunal or of it having been raised in the material before the Tribunal.

19. I am not satisfied that a failure to deal with these claims (other than as mentioned in the Tribunal hearing) is a jurisdictional error by the Tribunal. As there is no evidence that the claim of telephone terrorist threats to his family was not raised by the applicant with the tribunal, no error has been committed by the tribunal in failing to deal with the claim that is now made in that respect. The allegation of the killing of his uncle in 1985 is not relevant to the claim made by the Applicant as to his fear of persecution by the Sri Lankan government authorities. There is no evidence of any claim by the Applicant that he feared persecution at the hands of the Tamil Tigers. There is no suggestion in the Applicant's claim or in the material put before the Tribunal of mistreatment of him by Tamil Tigers or Tamil Tiger supporters. On the contrary his claim was a fear of persecution because of suspected involvement with the Tamil Tigers. This is not a case where the Tribunal has misunderstood the Applicant's claim or has failed to deal with a relevant aspect or essential element of a claimed fear of persecution (cf Kianfar v MIMA [2001] FCA 1754 and Htun v MIMA [2001] FCA 1820). Nor did the tribunal ignore the claim. As indicated in the reasons for decision, it was raised with the applicant in the hearing and was explained by the applicant as having involved his father. (See NABE v MIMIA one of the five cases considered by the Full Court of the Federal Court at the same time as the decision in NAAV and compare SBAB v MIMA [2002] FCAFC 161). I am not satisfied that the Tribunal made an error in failing to make findings about the alleged shooting of the applicant's uncle in 1985 by the Tamil Tigers. The Tribunal had concluded that the Applicant did not have a genuine (subjective) fear of persecution so that any particular claims about the sources and nature, or the likelihood, of persecution were not capable of affecting the outcome. Further if there was a failure it was at most a misunderstanding or failure to list correctly the claims put by the Applicant and not a misconstruction of the test to be applied. Were this to be regarded as an error it would be no more than an error of fact on the reasoning adopted by the Full Court of the Federal Court in NABE (see Wilcox J at [342], French J at [562] and note that Von Doussa J at [650] agreed with Wilcox J while Black CJ and Beaumont J agreed with von Doussa J).

20. For the sake of completeness I note that if, contrary to my conclusion, these events of 1985 involving the Applicant's uncle and father were to be regarded as relevant material, then the reasoning of the majority in NAAV that a decision which ignores relevant material and involves jurisdictional error in the sense referred to in Craig v South Australia (1995) 184 CLR 163 at 179 is now validated by section 474(1) would apply. Further I accept that the effect of the majority view in NAAV is that SBBK v MIMIA [2002] FCA 265 should not be followed unless or until the High Court takes a different view. In this respect I agree with and respectfully adopt the reasoning of Sackville J in Zahid v MIMIA [2002] FCA 1108 and also note the decision to the same effect of Jacobson J in NANG v MIMIA [2002] FCA 1138.

21. The Applicant does not contend and there is nothing to suggest any lack of good faith or that the decision was not a bona fide attempt to exercise power by the Tribunal. I am satisfied that the decision related to the subject matter of the legislation and was reasonably referrable to the power conferred on the Tribunal. It was not suggested nor am I satisfied that any requirement of the Act that was necessary to attract the Tribunal's jurisdiction was not met. In these circumstances it follows that the Applicant's claim for relief must be dismissed.

22. I therefore dismiss the application. As the Applicant has been wholly unsuccessful in those proceedings it is appropriate that he meet the Respondent's costs. Having regard to the nature of these and similar proceedings it is appropriate that costs be fixed in the amount of $4,000 pursuant to Rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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