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

Federal Court of Australia|2003-11-12|Before: Sundberg J

BACKGROUND 1 The appellant is a citizen of Sri Lanka of Sinhalese ethnicity. He arrived in Australia on 5 November 2001 as the holder of a Class TE, subclass 420 (entertainment) visa. Soon after his arrival a delegate of the respondent cancelled that visa under s 116(1)(b) of the Migration Act 1958 (Cth) on the basis that the appellant was not a genuine entertainer. On 9 November 2001 the appellant lodged an application for a protection visa. He claimed to fear persecution on the basis of his political opinion due to his involvement with the Sri Lankan Freedom Party (SLFP), which is part of the Peoples Alliance coalition (PA), and subsequently also by reason of his involvement with the rival United National Party (UNP). On 6 December 2001 a delegate of the respondent refused to grant a protection visa to the appellant. On 30 January 2002 the Refugee Review Tribunal affirmed the delegate's decision. It found that the appellant did not have a well‑founded fear of persecution by reason of his political opinion or any other Convention basis. The appellant sought judicial review of the Tribunal's decision in this Court. The matter was transferred to the Federal Magistrates Court. The application was dismissed by Hartnett FM. The appellant appeals from that decision. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the Chief Justice directed that the appeal be heard by a single Judge of the Court.

(a) The appellant had been a member and supporter of the UNP for two or three months prior to leaving Sri Lanka. However, given the short time he had been a member, his political profile and activities with the UNP were low‑level.

(b) The appellant had previously been no more than an ordinary member and low‑level supporter of the SLFP at the local level.

(c) There was nothing to distinguish the appellant as a person of any consequence who would attract serious adverse attention compared with members of Parliament, political leaders and party officials who changed their political allegiance at the same time as the appellant.

(d) It did not accept that the appellant was targeted by or attracted serious adverse attention from the PA, or that he received death threats from armed thugs. It did not accept that his family was under threat because of him.

(e) The appellant's failure to seek police protection or other assistance in relation to the claimed death threats was not commensurate with the actions of someone who is in fear of his life. This affirmed its finding that the appellant was not threatened or forced into hiding by political opponents.

(f) It did not accept the appellant's claim advanced at the hearing that he had recruited members from the SLFP to cross to the UNP.

(g) The appellant was not a truthful witness, and was prepared to extend and embellish his claim to suit the circumstances as they arose.

(h) Adequate State protection was available to the appellant, particularly because the UNP had now come to power in Sri Lanka, so that any fear of persecution he had was not well‑founded.

The appellant accepts the foregoing as an accurate statement of the key findings made by the Tribunal.

IN THE FEDERAL MAGISTRATES COURT 3 The grounds of review in the Federal Magistrates Court were that the Tribunal was guilty of jurisdictional error because it

(a) failed to notify the appellant that it proposed to rely on findings that his political activities with the UNP were "low level" and failed to give him the opportunity to provide additional information to deter the Tribunal from making such a finding;

(b) focused on the appellant's level of political activity and failed to ask whether a person with a low political profile would be at risk of persecution; and

(c) misconceived the test of State protection in that it did not ask whether the Sri Lankan authorities are able to afford the appellant adequate protection from persecution.

Hartnett FM dismissed the application on 9 August 2002. That was before the Full Court's decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 and the High Court's decision in Plaintiff S157 v The Commonwealth (2003) 195 ALR 24. At the time of her Honour's decision there was some uncertainty as to the proper approach to s 474 of the Act, in particular as to whether the effect of that section should be dealt with at the outset or only after a consideration of the merits of the grounds of review. She adopted the latter course, and dismissed the application on the merits. She did not place any reliance on s 474.

NOTICE OF APPEAL 4 The notice of appeal is a most unhelpful document. The grounds of appeal are that the Federal Magistrate erred "(1) In not accepting that the errors identified by the [appellant] in the decision of the Refugee Review Tribunal were of such a nature as to attract relief under s 39B of the Judiciary Act 1903 (Cth). (2) By not finding that the approach adopted by the Tribunal was of such a nature as to render its decision invalid."

The first ground appears to invite the Court to revisit each of the grounds unsuccessfully pursued in the Court below. The appellant's Outline of Submissions adopts his contentions of fact and law relied on before the Federal Magistrate, and supplements it in certain respects. The second ground is so uninformative that it will be struck out.

NATURAL JUSTICE 5 The appellant submits that the Tribunal breached the rules of natural justice because it did not indicate to him that it did not believe his claims about his membership of a UNP committee and about his recruiting of former SLFP/PA members, and provide him with an opportunity to present further material or argument in support of these claims. The Federal Magistrate, after reviewing the relevant authorities, said at [33]: "the Tribunal was not under any general obligation, whether under the rules of natural justice or otherwise, to notify the applicant of any deficiencies in his case or any aspects in which the Tribunal doubted his claims, let alone to invite the applicant to meet those perceived deficiencies or doubts. In particular the Tribunal was not obliged to notify the applicant of its mental processes or to provide the applicant with an opportunity to comment on its preliminary findings before making its decision."

The appellant's counsel did not attempt to persuade me that Hartnett FM's treatment of this ground of review involved any error. Her Honour's decision is supported by the cases to which she referred: Abebe v The Commonwealth (1999) 197 CLR 510 at [187] and [295] and Kioa v West (1985) 159 CLR 550 at 587. Her Honour's observations about the Tribunal's "mental processes" is supported by the decision of the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590‑591. See also Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at [265]‑[266] per Hayne J. The decision appealed from is not affected by any error on this natural justice ground.

LOW POLITICAL PROFILE 6 Hartnett FM dealt with the appellant's claim that the Tribunal erred by failing to ask whether a person with the appellant's low political profile would be at risk of persecution at [35]: "I find the Tribunal did not fail to consider the risk faced by the applicant himself as a person with a low political profile in Sri Lanka. Nor did the Tribunal treat the applicant's low level of political activity as itself precluding a finding that he faced a real chance of persecution. The Tribunal's ultimate finding that there was no real chance that the applicant would face serious harm amounting to persecution because of his political opinion … was based on its findings that: (a) the applicant had a low-level political profile; (b) the applicant had not been subjected to violence or threats of violence in the past; and (c) the applicant was able to obtain adequate protection from Sri Lankan authorities."

That this is an accurate statement of the Tribunal's reasoning process is apparent from the following extract from its decision:

"In addition the UNP is now in power in Sri Lanka. For this reason the Tribunal does not accept that the applicant is unable to obtain the protection of the State …. … The Tribunal accepts that the applicant has been a member and supporter of the UNP for 2 or 3 months prior to leaving Sri Lanka. The Tribunal is not satisfied for all the above reasons that he is now or was at the time of his departure from Sri Lanka being sought by political opponents. The Tribunal notes that the country information above indicates that violence occurs at election time. However as stated above the Tribunal is not satisfied that the applicant has been subjected to such violence or threats of violence in the past. Given this and the applicant's own low level political profile the Tribunal finds there is no real chance he will face serious harm amounting to persecution now or in the reasonably foreseeable future because of his political opinion should he return to Sri Lanka."

No error has been established in relation to the Federal Magistrate's rejection of this ground of review.

STATE PROTECTION 7 The appellant's complaint before the Federal Magistrate was that the Tribunal had failed to ask itself whether the authorities are able to afford him adequate protection from persecution. Hartnett FM dismissed his complaint at [36]: "After considering a range of general country information, the Tribunal found that 'there is adequate State protection in Sri Lanka in relation to political violence and that the police force is in an adequate position to provide protection for all citizens including the applicant and has taken all possible steps to do so.' … These findings were open on the evidence and material before the Tribunal. It is not for the Court to reconsider the correctness of this finding."

No error has been shown in her Honour's treatment of this ground. It is to be noted that the appellant admitted that he had not complained to the police or human rights bodies. He was thus unable to say that there had in fact been any failure on the part of the State to afford him protection. That is what the Tribunal had in mind when it said:

"In addition, there cannot be said to be a failure of State protection where a government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably be forthcoming."

OTHER GROUNDS 8 In addition to the grounds relied on before the Federal Magistrate, the appellant submitted on the appeal that in rejecting his claim that on 30 October 2001 he had been abused and threatened by armed men, the Tribunal had ignored relevant material and relied on irrelevant material, and had thus committed jurisdictional error. The Tribunal recorded the appellant's claim as follows: "On 30 October 2001 when the applicant was organising a UNP meeting, people with arms came to him, abused him and threatened him that he would be killed in a few days. They said they would kill his family and burn down the house. From then he was hiding in the houses of friends and relatives. For the sake of his life he left Sri Lanka and came to Australia."

The appellant submits that the Tribunal's rejection of the claim was based on the following matters:

(a) The appellant's failure to indicate "positive …. pleasure and satisfaction at the election outcome". It was said that this was not put to the appellant. Further, it represents an assessment that is inherently unreliable. Matters such as personality, ethnicity, English language skills and the circumstances of interview rendered this finding an "inappropriate basis for decision".

(b) The Tribunal determined that the UNP, as the biggest and best organised political party in Sri Lanka, would not be so short of committee members that it would place the appellant on a committee. This is said to be mere speculation.

(c) The Tribunal rejected the appellant's explanation that his father had not attracted attention because he was not active in the new party as the appellant was, and characterised that explanation as implausible. It is said to be "unsatisfactory to transpose speculation about the father's role into a negative inference against the son".

(d) The Tribunal selectively relied on the appellant's evidence that thugs did not come to his father's house as a basis for rejection of his evidence as to what occurred at the meeting on 30 October. This is said to be "illogical".

(e) The Tribunal attributed no weight to two documents produced by the appellant purporting to verify the making of death threats. The Tribunal concluded that they were self‑serving and contrived to assist the appellant's case. It was said that the only basis for doubt as to the authenticity of the documents was country information about the unreliability of documents from Sri Lanka. It was said that this "alone … is insufficient".

(f) The Tribunal said that if the appellant had received death threats he would not have risked appearing in public in Colombo at the Australian High Commission and at the airport. It was said that this ignored the rural location of the 30 October events, and was therefore "an inappropriate basis for rejection of the appellant's principal claim".

(g) The Tribunal failed to explain how the fact that the appellant was a low level supporter of the UAP rendered his account of the events of 30 October unreliable. It is said that "no basis is disclosed for the leap from the finding of low level activity to the conclusion that it was probable that the appellant was untruthful in his description of the event".

(h) The Tribunal was not impressed by the fact that the appellant had failed to seek protection from the police or other available bodies. It was said that this ignores the rural location and specific country information quoted by the Tribunal.

(i) The Tribunal relied on the above matters to found a general conclusion that the appellant was not a truthful witness. That conclusion cannot stand because the individual findings in (a) to (h) are "flawed".

9 This submission was not put to the Federal Magistrate. It is essentially an attack on the Tribunal's findings of fact dressed up as a claim that it had failed to take into account relevant considerations and had taken into account irrelevant considerations. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [73]‑[74] McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed, said: "On analysis, however, the asserted duty to make findings may be simply another way of expressing the well-known duty to take account of all relevant considerations. The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider. … What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision‑maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision‑maker acts." 10 In connection with the claim in par (a) of [8] that the Tribunal did not put to the appellant its view that he had not shown positive pleasure and satisfaction at the election outcome, I refer to what I have said in [5]. 11 The appeal must be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Counsel for the Applicant: CWR Harrison, appearing pro bono

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