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[2003] FCA 1244
Federal Court of Australia
2003-11-04
Carr J
Original judgment source is linked above.
introduction 1 This is an appeal from a decision of a Federal Magistrate given on 12 June 2003. His Honour's decision was to dismiss the appellant's application for an order of review of a decision of the Refugee Review Tribunal, made on 8 January 2003, to affirm a decision of a delegate of the respondent not to grant the appellant a protection visa. The Chief Justice, acting under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) directed that the appeal be heard by a single judge. 2 The appellant is a citizen of Sri Lanka. On 15 September 2001 he arrived on the Cocos (Keeling) Islands which were excised from Australia's Migration Zone on 17 September 2001 under the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth). He made claims for asylum which were considered in accordance with procedures applying to arrivals in areas excised from the Migration Zone. This included a refugee status assessment and a review of the initial decision that the appellant was not a refugee. 3 In August 2002 the appellant was transferred to the Australian mainland. On 11 October 2002 he lodged a fresh application for a protection visa. On 13 November 2002 a delegate of the respondent refused to grant that visa. On 18 November 2002 the appellant sought review of that decision by the Refugee Review Tribunal which conducted a hearing on 20 December 2002.
The appellant's claims 4 The appellant's claims were as follows. He was very politically active with the United National Party ("UNP") in Sri Lanka. In 1993 he became the UNP organiser for his village, North Pitipane, in the Negombo District. This involved him helping a long-time UNP member of parliament, Mr Joseph Michael Perera. The appellant said that he was responsible for "looking after road work and other repairs, and also social welfare". The appellant also claimed to have arranged party meetings by finding a venue, putting up posters and sending invitations. He would also sometimes go to Colombo, Kandy, Gampaha and other places where important UNP meetings were held, taking people to those places at the request of Mr Perera. 5 Before he left Sri Lanka, the appellant attempted to contest local municipal elections. Since he left Sri Lanka his brother had become the UNP candidate in those elections. 6 On the general election polling day in 1994 a big stone was thrown at the appellant as he returned from voting. This left a scar. After 1994 he had a lot of difficulties. Members of the rival Peoples Alliance Party ("the PA") would try to knock him over as he was walking or riding along the street. Supporters of the PA had arrived in vehicles and tried to push him and others "near a drain". This had happened more than 20 times. 7 In 1999 he became one of ten organisers for the whole Negombo electorate and was in charge of the whole Pitipane area. He was selected as President by the leaders of five districts in the area. The broader group of ten would get together in the lead up to elections and discuss matters such as funds and posters. 8 On the day after the 1999 presidential election, between 25 and 30 armed PA supporters came to his home and attacked him with swords. One of those was Nimal Kurera, a person from the neighbouring village who was the PA organiser for the appellant's area and the godson of a former prime minister. Mr Kurera had often been involved in the harassment which had occurred previously. The appellant sustained a cut hand and injured leg, but was able to run away to an uncle's house where he stayed for four days before returning home. 9 On 19 July 2001 the appellant attempted to attend a meeting in Colombo, but was unable to proceed to the meeting because the police and the President's force used tear gas and batons to repel the crowd. One of the people whom the appellant saw was a Mr Nisantha a member of the President's security force who was "in the PA". Mr Kurera was also there. 10 On 20 July 2001 Mr Nisantha and Mr Kurera came to the appellant's home and threatened him with pistols to the head. They told him to resign from the UNP within three days and stop his political activity as an organiser or he would be killed. Later Mr Kurera and Mr Nisantha attended at the appellant's home and place of work when he was not present, made threats against him and fired shots. On one occasion the appellant was told that these people had damaged his house and beaten his parents, wife and daughter. The appellant then went to live in an uncle's house for 10 to 12 days before staying with another uncle and then departing for Australia. 11 The appellant had told the Sri Lankan police about the dangers he faced in August 2001, but they did not conduct any investigation. 12 The appellant claimed that if he returned to Sri Lanka his life would be in danger from Mr Kurera, Mr Nisantha and the PA. He could be subject to reprisals following his brother's unsuccessful attempt to be elected to the local council, a contest which had been won by Mr Kurera's son. 13 The appellant's claims before the Tribunal were supported by what was claimed to be a letter from Mr Perera dated 24 August 2001, and other documents including copies of translations of letters from the appellant's family and friends.
The Tribunal's findings and reasons 14 The Tribunal reviewed independent country information about Sri Lanka. It accepted the appellant's account of his family and his business in Sri Lanka. It also accepted that the appellant's brother stood as a UNP candidate at the recent local council elections. 15 The Tribunal also accepted that the appellant supported the UNP and that he had been actively involved in his own right from 1993. It accepted that he may have planned to stand for the local council as a UNP candidate. It also accepted that the appellant may have assisted Mr Perera, a local member of parliament, and that the appellant had a stone thrown at him on polling day in 1994, which had left a scar. In relation to the claimed harassment by PA supporters in the years between 1994 and 1999, the Tribunal reasoned that the appellant's account of people coming some 20 times, but he and his colleagues always being able to escape, if accurate, indicated that there was not a serious intent to harm him. 16 The Tribunal found the appellant's account of 25 to 30 people coming to his home in 1999 and attacking and injuring him was not credible. It did not accept that the appellant, with an injured hand and leg, could have escaped so many attackers. If the appellant had in fact been injured as he claimed, the Tribunal said that it did not consider that he had given an accurate account of the circumstances in which the injuries were sustained. The Tribunal said that it did not accept that Mr Kurera was involved in the assault or that the episode was reported to the police, who failed to respond. 17 The Tribunal found that while the appellant may have experienced being hit by a stone on polling day in 1994 and being harassed because of his political involvement, that did not amount to serious harm of a kind which could amount to persecution, even if seen cumulatively. The Tribunal noted that the appellant was able to go about his life with his business and to maintain an involvement in politics between 1999 and 2001. 18 The Tribunal accepted the appellant's account of the protest rally on 19 July 2001 as being consistent with independent information. It accepted that he may have participated in the rally and that he may have been affected by tear gas used by the police in their attempts to disperse the gathering. 19 The Tribunal said that it was not satisfied that the appellant's evidence concerning what took place in the days following that incident was true. It gave its reasons for that conclusion. 20 The Tribunal said that it was unable to accept that the appellant had suffered treatment amounting to persecution in the past. It also said that the chance of the appellant coming to serious harm upon return to Sri Lanka because of his involvement with the UNP was remote. It again gave its reasons, referring to independent country information. 21 The Tribunal found that the fact that the appellant had left Sri Lanka illegally might cause him to be subjected to some questioning upon his return, but not to persecution for any of the reasons set out in the Convention. The Tribunal noted that the appellant was not a Tamil and that the evidence did not indicate that he would be seen to have a political opinion which could lead the authorities to take an adverse interest in him. 22 The Tribunal concluded that there was no real chance the appellant would face harm amounting to persecution for a Convention reason if he were to be returned to Sri Lanka.
the decision at first instance 23 The appellant was not represented in the proceedings before the Federal Magistrates Court. His grounds of review, in summary, were as follows: · failure by the Tribunal to apply the correct test and principles of relevant law when it arrived at its decision, falling into error by taking into consideration irrelevant matters and failing to take into account relevant matters thereby committing jurisdictional error; · error of law by the Tribunal, being an error involving an incorrect interpretation of the term "well-founded fear"; · the Tribunal wrongly understood most of the appellant's claims and its reasons for rejection of the material claims were unreasonable, irrational and illogical; · the Tribunal had not complied with "statutory rules"; and · denial of procedural fairness. 24 His Honour correctly observed that, under the principles explained in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, he had jurisdiction, notwithstanding the privative clause provisions of the Migration Act 1958 (Cth) ("the Act"), to review the Tribunal's decision for jurisdictional error and, in particular, error arising by reason of a denial of procedural fairness (as claimed by the appellant). 25 His Honour said that having re-read the Tribunal's decision carefully, he was unable to identify any basis upon which it could be interfered with. The Tribunal had decided not to accept the appellant's account of some of the events leading to his departure from Sri Lanka. In so doing it had acted within its jurisdiction. 26 The learned Federal Magistrate dealt briefly with the various grounds relied upon by the appellant and held that they had not been sustained. The Tribunal had, in his Honour's opinion, clearly addressed the matters required of it by the Act and the Convention. In his Honour's opinion the Tribunal had correctly interpreted the term "well-founded fear". The appellant had invited the Federal Magistrates Court, so his Honour observed, to enter into merits review. It was clear, so he held, that the Tribunal had not misunderstood the appellant's claim and had not erred in the various respects claimed in the grounds raised by the appellant. 27 His Honour concluded by noting that he was unable to identify any basis upon which the Tribunal's decision could be interfered with.
the appeal and my reasoning 28 The grounds of appeal were stated in the following terms: "3) The decision of the RRT is infected by the judicial error in the following way: a) That 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 foreceble (sic) future". b) RRT failed to apply the correct test and principles of relevant law arriving at its decision and that it fell into error in taking into account the matters that were relevant to reaching to its decision, and therefore commited (sic) a jurisdictional error. c) The RRT wrongly understood most of my claims and the reasons for rejection of the material claims are unreasonable, irrational and illogical, lack of proportionality, no evidence, uncertainty and bad faith. The RRT also not complied with statutory rules. d) The RRT failed to follow procedural fairness according to the Muin and Lie cases of High Court of Australia. e) These errors/jurisdictional errors by the RRT affected its decision. 4) The Federal Court did not consider these errors which had been made by RRT, by not considering all of my submissions to RRT." 29 The appellant was unrepresented at the appeal. He forwarded to the Court five typewritten pages of written submissions. In my view, nothing raised in those submissions was relevant to the disposition of this appeal. In essence they were directed to the merits of the Tribunal's decision. 30 I have reviewed the Tribunal's reasons and those of the Federal Magistrate. The factual findings were, in my opinion, open to the Tribunal. Basically, it disbelieved the core elements of the appellant's claims. In my view, his Honour was correct in finding no jurisdictional error or error of law which would prevent the Tribunal's decision from being made under the Act. Nothing in the materials before the Court indicates that the Tribunal fell into any reviewable error. 31 Accordingly the appeal must be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.
Solicitors for the Respondent: Australian Government Solicitor
WAJG
Minister for Immigration & Multicultural & Indigenous Affairs