Migration Act 1958 (Cth) s.474

Federal Court of Australia Act 1976 (Cth) ss. 24(1), 24(1AAA), 25(1), 25(1A)

NAFA v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 844

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437

Perampalam v Minister for Immigration & Multicultural Affairs [1999] FCA 165; (1999) 84 FCR 274

Minister v Guo (1997) 191 CLR 559

Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802

W396/01 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 103

Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Boucaut Bay Co Limited (In Liquidation) v Commonwealth [1927] HCA 59; (1927) 40 CLR 98

Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17

Low v Commonwealth [2001] FCA 702

Favelle Mort v Murray [1976] HCA 13; (1976) 133 CLR 580

Business World Computers v Telecom (1988) 82 ALR 499

CEO of Customs v Tony Longo Pty Ltd [2001] NSWCA 147; (2001) 161 FLR 156

Fieldhouse v Commissioner of Taxation [1989] FCA 397; (1989) 25 FCR 187

MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS

(2) Applicants to pay the Respondents costs in the sum of $3,750.

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

1. In these proceedings there was originally joined as a party the Refugee Review Tribunal (second respondent). By consent of the first and second respondent the applicant withdrew the claim and I dismissed the Tribunal from the proceedings with no order as to costs.

2. The first and second applicants are citizens of Sri Lanka who entered Australia on 8 October 1997. They made an application for a protection visa on 29 October 1997. Their claims for protection have proceeded through the administrative and judicial pathways ending with a High Court order made on 24 May 2001 that the application be reheard by the RRT differently constituted. That Tribunal constituted by Giles Short dismissed the applications on 26 November 2001. It is this decision which the applicants seek to review.

3. The applicants' claim before the Tribunal was that they feared persecution on the grounds of race and or political opinion (imputed) if returned to Sri Lanka. The male applicant is Sinhalese and his wife is part Sinhalese and part Tamil. They claimed that because of the wife's ethnicity there has been imputed to them support of the Liberation Tigers of Tamil Elan ("the LTTE"). They cite in their representations to the Tribunal a number of instances of harassment including harassment by the police, the detention of the male applicant by the police and torture by the police. The Tribunal proceeded on the basis that these allegations were true.

4. The applicants made other allegations about association with the LTTE of which two, involving direct assistance by both the female and male applicant, were rejected. The male applicant had a responsible job as a flight dispatcher for Air Lanka. The female applicant worked as a secretary at a cargo services firm based at Colombo International Airport at Katunayake. The couple lived in housing in the vicinity of the airport. The applicants conceded that if they returned to Sri Lanka the husband would not be able to return to his job at the airport because the airline had been taken over by Emirates and significant redundancies had taken place.

5. The Tribunal came to the view that the applicants did not have a well-founded fear of persecution arising out of the existence of their mixed marriage because, although they had experienced difficulties in the housing accommodation in which they lived prior to their departure, the in-country information available to the Tribunal indicated that there were areas of Colombo in which persons of mixed marriage could live in reasonable safety. The Tribunal came to the conclusion that there was no real chance that the male applicant would be accused by his neighbours or people in his workplace or the community at large of helping the LTTE and therefore there was no prospect that he would be taken in for questioning by the Sri Lankan authorities on suspicion of helping the LTTE, or that his home would be searched. The Tribunal did not accept that rumours circulating in the couple's home town of Galle that the applicant and his wife had left Sri Lanka because they had been helping the LTTE and authorities were looking for them would spread around the whole of Sri Lanka and in particular to Colombo and therefore place the applicants in danger.

6. The applicants in their amended application for an order for review set out three grounds of application:

The RRT, when finding that it was reasonable for the applicant's to relocate to Colombo, failed to make a finding whether all the applicants' claims, taken together, would lead to a well founded fear of persecution in Colombo.

(a) The RRT's finding that it was reasonable for the applicants to relocate in Colombo was not reasonably reached, and this finding was critical to the ultimate conclusion of the RRT that the jurisdictional fact of it being satisfied that the applicant had a well founded fear of persecution for a Convention reason was not made out.

(b) The RRT's finding that the applicants did not have an imputed political profile was not reasonably reached, and this finding was critical to the ultimate conclusion of the RRT that the jurisdictional fact of it being satisfied that the applicant had a well founded fear of persecution for a Convention reason was not made out.

3. The RRT failed to take into account relevant considerations

The RRT failed to take into account in considering whether it was reasonable for the applicant to relocate the fact that there was no evidence that the attitude of the Sri Lankan authorities in general in Colombo was different to the attitude of the Sri Lankan authorities in the Colombo International Airport Precinct.

7. The applicants accept that none of the grounds listed above constitute an allegation of lack of bona fides which, had it been made, would have allowed the matter to proceed notwithstanding the enlargement of the Tribunal's powers by virtue of the privative clause contained in s.474(2) of the Migration Act 1958 (Cth). The applicants argued that a constructive failure of jurisdiction will also ground review safe from protection afforded by the privative clause. Although this is a submission which is strongly resisted by the respondent I agreed to hear it because as Hely J said in NAFA v MIMIA [2002] FCA 844 at [19] it may become a live issue depending upon the decision of a five member Full Bench of the Federal Court which is due to deliver judgment in August.

8. The applicants argue that the Tribunal failed to apply the relocation test found in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 and Perampalam v MIMA [1999] FCA 165; (1999) 84 FCR 274. That test being that it must be reasonable for the person who has a well founded fear of persecution in one part of the country to relocate to another. The applicants argue that the persecution which they suffered whilst living at Katunayake was persecution by the authorities both directly, in the way in which they treated the male applicant, and indirectly in their failure to protect the applicants from the results of community oppression.

9. The Tribunal relied on a document dated 30 March 1994 [CB 272] which contains words to the following effect:

"Generally speaking, under normal circumstances ethnically mixed couples are not ill-treated regardless of their place of residence."

"In contrast to the previous sources, the Secretary of the Tamil Eelam Society of Toronto states that Sinhalese women who marry Tamil men are likely to have difficulties wherever they live in Sri Lanka."

10. The applicants submit that these documents do not really assist the Tribunal to come to the view that the applicants would be safe if they moved to Colombo and that the final paragraph of the document at [CB 272] would tend to indicate to the contrary. The applicants state that this constitutes unreasonableness in the making of the decision.

11. The applicants submit that the Tribunal did not adopt the processes detailed by the High Court in Minister v Guo (1997) 191 CLR 559 at 574-576 in that the Tribunal disregarded the past treatment of the applicants by the community at Katunayake and also disregarded the mistreatment of the male applicant by the authorities:

"This, apparently, is justified on the basis that there is no evidence to suggest that the male applicant is of any current interest to the authorities. However, to confine the inquiry in this fashion ignores the probative value of such evidence as recognised by the High Court in Guo. This is especially the case where there is no evidence at all before the RRT that the attitude of the authorities in Colombo is any manner different from those in the Colombo Airport precinct. To thus exclude this evidence as not being probative of the future chances of persecution is to ignore a relevant consideration." (Applicant's submissions [18]).

12. The applicants submit that the Tribunal needed evidence to put forward the view that the authorities in Colombo would have a different attitude towards protecting the applicants than the authorities in Katunayake. It is said that no evidence of this is referred to by the Tribunal and there is no finding by the Tribunal that the authorities would take a different attitude. As a result the Tribunal failed to take into account relevant matters. The applicants submitted that the evidence was in fact against the findings made by the Tribunal that the applicants would be safe if they moved to a racially mixed area of Colombo because of the frequent cordon and search operations carried out in those areas. The Tribunal relied on a country information report dated 28 September 1998 entitled "Human Rights - Tamils in Colombo" [CB 255-257] which at [257] contained the sentence

"Many Tamils who are resident or born in Colombo report that they have experienced difficulty obtaining rental accommodation from landlords of other ethnic groups. Landlords are often reluctant to rent to Tamils they do not know, in case the tenant has links to the LTTE and comes to the attention of the police or security forces. Nevertheless, Tamils do find accommodation in Colombo, albeit with more difficulty than other ethnic groups."

13. I am of the view that the Tribunal did apply the tests in Randhawa (supra) and Perampalam (supra) by considering whether or not it was reasonable to expect the applicants to remove themselves from Katunayake to Colombo and investigating whether or not persons of mixed marriage might be safe there. In so far as the applicants' concern about their safety in Colombo arose out of the authorities previous interest in them, the Tribunal's view, clearly stated, was that the interests of the authorities arose out of the employment of the male applicant at the airport. The Tribunal combined relocation to Colombo with an acceptance by the male applicant that he would no longer be employed at the airport. The Tribunal then came to the view that in those circumstances the attitude of the authorities towards him would be different. Reasoning in this way does not seem to me to be illogical, even if it might be wrong in fact. I do not believe it demonstrates reviewable error.

"Because the male applicant was released on each occasion he was detained he was not seriously suspected of assisting the LTTE. The search of the applicant's house had to be seen in the context of the fact that it was a house near the airport at a time when the Police had received numerous petitions against the applicants as being LTTE helpers."

It is this finding which is the subject of ground 2(b) in the amended application. The applicants submit that this finding is capricious. It is simply no answer to the claims of fear that the authorities will continue to hold an adverse opinion about them to say that the past actions of the authorities are explicable in the context in which they occurred. This does nothing to diminish the fact that the authorities held that opinion in the past and may therefore continue to have that opinion. (Applicants' submissions at [13] and [14]).

15. I do not think that this finding of the Tribunal, which appears at [CB 233] could not be said to be based on circumstances giving a rational foundation for the belief entertained (Boucaut Bay Co Limited (In Liquidation) v Commonwealth [1927] HCA 59; (1927) 40 CLR 98 at 101 (per Starke J). The Tribunal's reasoning was that whilst the applicants had been suspected in the past of LTTE associated activity it had never been proved against them and the male applicant had been released from custody on each occasion. It was not unreasonable to expect that after the applicants had left the country and an incident had occurred at the airport where they both worked that the applicants' home would be searched. There was no evidence that any incriminating material was found. The Tribunal's view was that if the applicants returned to Sri Lanka and undertook work in an area unassociated with the airport then they would be unlikely to face the possibility of this type of interest from the police force in relation to LTTE activities at the airport. That assumption does not seem to me to be capricious, arbitrary or illogical.

16. The applicants complain that the Tribunal was wrong in rejecting the male applicant's concern that he had been and will continue to be imputed with pro LTTE political opinions. He seems to be asking the court to substitute its views for those of the Tribunal which the court cannot do. Whilst the applicants say that the finding of the Tribunal that they did not have an imputed political profile was not reasonably reached, to the extent that the Tribunal deals with the question of imputed political profile [234] and [238] CB, the references are reasoned (albeit not in great detail) and appear to me to be findings to which the Tribunal was entitled to come based upon the evidence it considered.

17. The main thrust of the applicant's argument was that the Tribunal dealt with the issues piecemeal and not as a whole. Dealing with matters separately may well be convenient but does not relieve the Tribunal of the task of addressing, cumulatively, all of the essential elements of the claim raised by the material evidence (see Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 per Merkel J at [7]. The applicant says:

"By fragmenting the enquiry between the attitude of the community and the attitude of the authorities, the RRT also commits an error. The result is that the applicant's claims are dismissed in a discrete manner, without regard to the overall interplay of various circumstances."

18. The authorities cited by the applicant, W396/01 v MIMA [2002] FCA FC 103; Sellamuthu v MIMA [1999] FCA 247; (1999) 90 FCR 287 at 292 to 293; MIMA v Yusuf [2001] HCA 30; (2001) 180 ALR 1 at 82 to 85; MIEA v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 per Kirby J at 294 to 295 are to my mind a caution to the Tribunal lest in consideration of discrete issues it fails to consider a separate claim that might involve consideration of those issues cumulatively. Thus in W396/01 v MIMA (supra) the court found that the Tribunal failed to look at various pieces of evidence (most of which they had rejected individually) as the constituent of a sur place claim.

19. The applicants in the case before me have not identified a new form of claim which has not been considered. They only identify various pieces of evidence which are considered individually against the integer of the claim of a well founded fear of persecution. The Tribunal appears to have carried out the task required of it in this regard.

20. The respondent commenced his submissions by arguing that the Federal Magistrates Court was bound by the decisions of the single judges of the Federal Court and that I should follow the latest and most persuasive of those judgments being one produced by Hely J on 3 July 2002, NAFA v MIMIA [2002] FCA 844. It is appropriate that I explain my reasons why I do not believe that the Federal Magistrates Court of Australia is bound by decisions made at first instance by judges of the Federal Court.

21. The Federal Magistrates Court is a court within the same juristic system of the Federal Court of Australia both courts being created pursuant to Chapter III of the Constitution. In terms of hierarchy the Federal Magistrates Court is the lowest, the Federal Court of Australia is the intermediate court and the High Court of Australia is the highest court. However, the High Court of Australia and the Federal Court of Australia each have both original and appellate jurisdictions. Section 24 of the Federal Court of Australia Act 1976 is in the following terms:

24(1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including any Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine -

(a) appeals from judgments of the Court constituted by a single Judge;

(b) appeals from judgments of the Supreme court of a Territory; and

(c) in such cases as are provided by any other Act, appeals from judgments of a court of a State, other than a Full Court of the Supreme Court of a State, exercising federal jurisdiction and

(d) appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth other than:

(i) the Family Law Act 1975; or

(ii) the Child Support (Assessment) Act 1989; or

(iii) the Child Support (Registration and Collection) Act 1988; or

(iv) regulations under an Act referred to in subparagraph (i), (ii) or (iii).

22. In so far as the jurisdiction of the court in relation to appeals from the Federal Magistrates Court is concerned s.24 is qualified by s.24(1AAA) which is in the following terms:

24(1AAA) [Appeals from Federal Magistrates Court - exclusion] An appeal may not be brought to the Court from a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the Court in relation to an appeal from the Federal Magistrates Court.

23. An appeal from a single Judge of the Federal Court of Australia to the Full Bench of that court is considered to be an appeal by way of rehearing (MIMA v Jia [2001] HCA 17). The situation in regard to appeals from the Federal Magistrates Court to the Federal Court is similar (Low v Commonwealth [2001] FCA 702).

24. In Favelle Mort v Murray ([1976] HCA 13; 1976) 133 CLR 580 at 591 Barwick CJ made the following statement:

"Within (the) body of precedent there are decisions or statements of principle which a court will be obliged to follow and apply. The ultimate foundation of precedent which thus binds a court is that a court or tribunal higher in the hierarchy of the same juristic system and thus able, to reverse the lower court's judgment, has laid down that principle as part of the relevant law."

25. The requirement that the court higher in the hierarchy must have the power to reverse the lower courts' judgment was recognised as a fundamental constituent of the principle of binding authority by Gummow J in Business World Computers v Telecom (1988) 82 ALR 499 at 504 where His Honour said:

"Stare decisis involves courts being bound by appellate decisions of courts standing above them and in the same hierarchy. A decision of a single justice of the High Court is not such a decision."

26. This view was followed by the New South Wales Court of Appeal in CEO of Customs v Tony Longo Pty Ltd [2001] NSWCA 147; (2001) 161 FLR 156 at 168 per Heydon JA. In Fieldhouse v Commissioner of Taxation [1989] FCA 397; (1989) 25 FCR 187 Hill J said at 224:

"it must follow, in logic, that when the rule is stated that the Federal Court is bound to follow decisions of the High Court the rule refers to judgments of the High Court on appeal rather than judgments of a single justice of that Court, since while a judgment of a single justice is a judgment of the High Court it is not a judgment of a court that could sit on appeal from the Federal Court, there being a requirement that an appeal from this Court be heard by a Full Court."

27. A single judge of the Federal Court when not sitting on an appeal from a matter in the Federal Magistrates Court is in the same position as a single judge of the High Court when not sitting in an appellate role. Such judgments would be of the highest persuasive authority. The tradition of comity would encourage a Federal Magistrate to follow the decisions of a single judge of the Federal Court except in a situation where the Federal Magistrate believed and was able to demonstrate that the original judgment was wrong. Where there are several judgments of single judges of the Federal Court which are in opposition to one another the Federal Magistrate, like a Federal Court Judge has the option of choosing which of the conflicting judgments he or she prefers. On the other hand, when the Federal Court, either constituted by a Full Bench of five, three or one have decided on an appeal from the Federal Magistrates Court or a single Judge of the Federal Court, Federal Magistrates are bound.

28. The emphasis placed in the judgments cited upon precedent being binding when it relates to an appellate decision could be seen as the product of a pragmatic approach to the enormous increase in the volume of matters which are today reported. A strict doctrine of precedence based upon the binding authority of single Judges in a court higher than the court hearing a matter may well have been appropriate for 19th Century England or other countries in the common law world. But it would be unrealistic to assume that today when the Federal Court wrote judgments in 1919 cases in the year 2001 alone there will not be divergence of opinion between Judges at first instance.

29. One has only to look at two arenae to illustrate the difficulty with which a lower court will be faced if required to follow the decisions of a single Judge of a higher court not delivered on appeal. In Migration Act matters, as this matter is, one has only to point to the dichotomy between those decisions which suggest that error under s.39B Judiciary Act 1903 (Cth) should be looked for before considering the effect of s.474 Migration Act (SAAD v MIMA [2002] FCA 206; Boakye-Danquah v MIMA [2002] FCA 438; Kwan v MIMA [2002] FCA 598) and those cases which hold that the court must only address those matters permitted by the narrow Hickman principles (Turcan v MIMA [2002] FCA 397; NAAG v MIMIA [2002] FCA 713).

30. A similar situation exists in bankruptcy. For example, there is a divergence of authority about whether a failure correctly to identify in the schedule to a bankruptcy notice the statutory provision or other basis pursuant to which interest is claimed is a fatal defect (see Australian Central Credit Union Ltd v Laing [2001] FCA 1154; Commonwealth Development Bank of Australia v Adams [2002] FCA 225 and Cosco v Tsatsoulis [2002] FCA 358 which suggest that such an error is an incurable defect as opposed to St George Bank Ltd v Baldwin [2001] FCA 161; Garvin v Patterson [2001] FCA 1253 and Commonwealth Bank of Australia v Booth [2002] FCA 430 which suggest that such a defect is not necessarily incurable, and can in an appropriate case be cured under s.306(1) Bankruptcy Act 1966 (Cth) if the debtor is not objectively misled by the defect).

31. Mr Lloyd, in his interesting submission, addressed this problem by saying that the Federal Magistrate should be bound by the latest decision of the Federal Court. He underestimates the productivity of the Federal Court. On any given day several decisions will come out, particularly in a matter such as migration, which could be conflicting.

32. I do not think Mr Lloyd can obtain any assistance from the wording of the sub-sections to s.24. True it is s.24(1) refers to "the court" having jurisdiction to hear and determine appeals but:

The appellate jurisdiction of the court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court.

The appellate jurisdiction of the court in relation to an appeal from a judgment of the Federal Magistrates Court is to be exercised by a Full Court unless the Chief Justice considers that it is appropriate for the appellate jurisdiction of the court in relation to the appeal to be exercised by a single Judge."

33. Sections 24 and 25 of the Act seem to make it clear that the appellate and non-appellate jurisdiction of the Federal Court are separate matters. There can be an easy identification of the nature of any individual judgment of the court. This permits of an easy distinction between binding and non binding decisions and thus will enable both courts to develop their own jurisprudence, subject always to the binding authority of appellate decisions.

34. Both the applicant and the respondent made detailed submissions to me in relation to the effect of s.474(2) of the Migration Act (the privative clause) upon the findings of the Tribunal. I advised the parties that I proposed to follow that line of Federal Court authority which permitted consideration of the s.39B claims before considering the effect of s.474. I also informed the parties that if I felt that there was any strength in the argument put by the applicants in relation to jurisdictional error then I would adjourn the matter until after the decision of the special five member Full Bench of the Federal Court which had recently been convened to consider these issues. I would then call for further submissions. However, I have not formed such a view. I believe that if this case had been heard before the introduction of s.474 the applicants would not have been able to make out a case for review in all the circumstances. There is therefore no point in awaiting the Full Bench's decision.

35. I dismiss the application. I order that the applicants pay the respondent's costs which I assess pursuant to the Federal Magistrates Court Rules Part 21.02(2)(a) in the sum of $3,750.00.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Raphael FM