VBAH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

THE COURT: 1 This is an appeal from a judgment of Heerey J ("the primary judge") dated 2 April 2002. His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the RRT") affirming a decision of a delegate of the Minister refusing to grant him a protection visa. The present appellant was the unsuccessful applicant before the primary judge. 2 The appellant is a citizen of Sri Lanka of Sinhalese ethnicity. He entered Australia on 5 November 2001 as the holder of a class TE cultural social temporary subclass 420 (Entertainment) visa. That visa was cancelled soon after the appellant entered Australia. On 9 November 2001, the appellant applied for a protection visa. A delegate of the respondent refused the application on 6 December 2001. The appellant applied to the RRT for a review of that decision. On 22 January 2002, the RRT affirmed the decision of the delegate not to grant the appellant a protection visa.

3 The appellant's claims before the RRT included claims that: · he was a member of the United National Party ("the UNP"); · his father was a member of the UNP; · he has been involved in politics for a number of years; · he was involved in propaganda work for the UNP, including putting up posters and banners and organising meetings; · he was assaulted at his home shortly before the October 2000 elections; · windows at his house were broken two to three days after the assault; · he received death threats from a Minister in the opposing party; · opposing party supporters came to his house, verbally abused him and threatened to kill him; · he was also threatened from within the UNP and as a result went into hiding and could not continue his employment; and · the recent election of the UNP would not make a difference to his fear of persecution because of his political opinion. 4 The primary judge summarised the RRT's reasons at par 3 as follows: "The Tribunal was not satisfied that the applicant had been subjected to political violence in the past and found that there was no real chance that he would face persecution because of his political opinion if he were to return to Sri Lanka. The Tribunal noted that after the recent elections the UNP were now in power in Sri Lanka. The Tribunal found that the applicant was able to obtain the protection of the state and that any fear of persecution was therefore not well-founded." 5 The appellant was not represented before the primary judge. His Honour observed that, other than a general reference to s 476 of the Migration Act 1958 (Cth) ("the Act"), the application for review did not state any specific grounds of review. His Honour concluded that the decision sought to be reviewed "is a 'privative clause decision'" which was not reviewable in the Court by reason of s 474(1) of the Act. He referred to the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and stated that there was no basis in the case before him for any contention that the RRT's decision was not a bona fide attempt to exercise the power or does not relate to the subject matter of the Act or is not capable of reference to the power given to the decision maker. Accordingly, the primary judge dismissed the application with costs. 6 Before the Full Court, the appellant was represented by senior counsel who appeared pro bono. Senior counsel argued that the RRT had made a jurisdictional error and consequently, s 474 does not preclude relief. It was contended that the jurisdictional error was that the RRT ignored relevant material in a way that affected the exercise of power. The appellant's written submission stated: "The Applicant submits that he told the RRT at the hearing of his application that he was threatened with death if he complained to the police and at that time the police "followed the line of government" so that it was useless to complain to the police at that time, and that sometimes money went to the police. In its reasons the RRT rejected the Appellant's claim because it considered that if his problems were as serious as he claimed he could have reported his concerns to the police, which he failed to do. However, it failed to take into account his said explanation for such failure and therefore made wrong findings." 7 Senior counsel submitted that the appeal should be adjourned until the full bench of five judges specially constituted to consider the scope of s 474 has delivered judgment but accepted that if the Full Court was not satisfied that there was jurisdictional error there was no basis for it to adjourn the hearing of the appeal. 8 In its reasons under the heading "Claims and Evidence" the RRT observed that: "The applicant stated that he has never complained to the police. He stated that he was frightened to make a complaint." 9 In its findings the RRT stated: "The applicant has claimed that his windows were broken at home and he was assaulted. In the hearing he placed this event at a short time before the October elections. The applicant stated he has never been to the police, not even in relation to these events. In the Tribunal's view if the applicant's problems had become so serious that such events occurred he would have gone to the police. This failure to report such events to the police, together with the problems the Tribunal has set out above about the applicant's minor role in UNP activities and the Tribunal's findings that he has not undertaken such activities that he would be sought by other people, leads the Tribunal to the conclusion that the applicant was not assaulted and his windows were not broken." 10 In our view, on a fair reading of the RRT's reasons it is implicit, if not explicit, that it did not accept the explanation proffered by the appellant for not reporting the matters of which he complained to the police. For the reasons it gave, the RRT did not accept the appellant's version of events and made findings adverse to his credit. In our view the real criticism of senior counsel for the appellant is that the RRT attached little or no weight to the appellant's explanations for not going to the police but that is a matter going to the merits of the appellant's claims, rather than to any jurisdictional error in the determination of those claims. 11 We are not prepared to infer that the RRT's assessment was not made in the light of all the evidence, including country information that addressed the issue of whether citizens could avail themselves of the protection of law enforcement authorities. Accordingly, we do not accept the contention that the RRT failed to take into account the appellant's explanation for not reporting his complaints to the police. It must follow that the alleged error on which the appellant's argument is based is not made out, with the consequence that it is unnecessary to consider whether, if it was made out, the error could constitute jurisdictional error. 12 An additional ground for the RRT's finding that the appellant does not have a well founded fear of political persecution if he returned to Sri Lanka, is that the UNP is now in government and therefore the State will afford protection to the appellant if he returns to Sri Lanka. Thus even if, contrary to our view, an error was made by the RRT in relation to the appellant's explanations for not reporting his complaints to the police, that error did not affect the outcome of its review. 13 For the above reasons the appeal is to be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, North and Merkel.