Weldt v Minister for Immigration and Multicultural Affairs

1 The prosecutors, Mr Weldt and his wife, Ms Mapue, claim to be Convention refugees. They arrived in Australia from Sri Lanka in on 25 May 1997 and applied for a protection visa under the Migration Act 1958 (Cth). A delegate of the Minister refused those applications. The prosecutors sought review of the delegate's decisions by the Refugee Review Tribunal which affirmed the decisions. The prosecutors then made application to the Federal Court for review of the decisions of the tribunal. Those applications were dismissed because they were out of time: see Weldt v Minister for Immigration and Multicultural Affairs [2000] FCA 545. Finally the prosecutors applied to the High Court for the issue of "constitutional writs", directed to the tribunal, to remove their decisions into the High Court to be quashed for "jurisdictional error". Those applications have been remitted to the Federal Court pursuant to s 44 of the Judiciary Act 1903 (Cth). 2 Mr Weldt is an ethnic Burgher and a national of Sri Lanka. Ms Mapue is a national of the Philippines. Each of them say they are unwilling to return to their respective countries of nationality because each has a well-based fear of persecution for a Convention reason. The case put forward by the prosecutors to support their respective claims is as follows. Mr Weldt was born in Colombo. Since the late 1970s Mr Weldt has lived in Bahrain where he met and married Ms Mapue. They have one child, Eddison, who also is a national of the Philippines. The prosecutors were employed in the hotel industry in Bahrain. They travelled to Sri Lanka for their annual holidays. Until 1996 those visits were without incident. However, things changed during their trip in January 1997. To understand what occurred a little background information is essential. Many Tamils live and work in Bahrain. Mr Weldt developed a friendship with some of them. A few of his Tamil friends asked Mr Weldt to take money to their families in Sri Lanka. Mr Weldt agreed and was given travellers cheques worth US$15,000 to deliver to those families. When Mr Weldt arrived at Colombo airport in January 1997, he did not declare the funds. However, during a routine search, the customs authorities discovered the travellers cheques. They questioned Mr Weldt to ascertain both the origin and destination of the funds. Perhaps they thought Mr Weldt intended to give the travellers cheques to the Liberation of Tamil Tigers Eelam (Tamil Tigers), who have been waging a bloody civil war against the Sri Lankan government since 1983. It is widely believed that the Tamil Tigers are financed by Tamils who live overseas. After being questioned, Mr Weldt was released and no charges were laid. However, a few days later government authorities came to the home where Mr Weldt and his family were staying, questioned him further and searched his belongings. Mr Weldt said of this incident: "[I]t was not very nice. I mean, they were not very professional, being Sri Lankan - whatever their authority. I mean, they took the law into their own hands where they - I mean, it's a bit hard the way that they put me in a very tight corner in front of my wife and kid, that was unbelievable. Rip everything apart…" 3 The prosecutors returned to Bahrain after their holiday. However, Mr Weldt was forced to resign from his employment after concerns were raised as to his possible links with the Tamil Tigers. Ms Mapue also resigned her employment. As both of their visas to reside in Bahrain were dependent upon sponsorship from their employer, which was withdrawn, they were required to leave the country. They did not feel that it was possible for them to move to the Philippines. Ms Mapue explained that it was a long time since she had been home and that this was: "because during the Marcos regime I've got a brother who was in the army … and I was instrumental in taking him out of the army, absent without leave. I've been sending him money and I've written him a lot of times, encouraging to leave the army, and because of that he wasn't very popular. And my parents felt threatened, the whole family got threatened and my father advised me then not to go home because I wasn't - he thought that it wasn't safe for me to go home." 4 The prosecutors decided to return to Sri Lanka. They arrived in May 1997. This time Mr Weldt was carrying travellers cheques for US$20,000, which he did not declare to customs. Mr Weldt said that the money was intended as a dowry for the sister of a Tamil work colleague. The prosecutors were detained at the airport and searched. Both prosecutors were required to undress as part of the search. They were questioned about the money but were released and allowed to leave with the money. A week later the prosecutors left Colombo to take the money to the intended recipients. On their way they were stopped at a checkpoint where they were held for six days in unsanitary conditions. During their period of detention the prosecutors were again questioned about the travellers cheques and Ms Mapue was questioned about a Filipino radio station, Veritas, that broadcasts programs that are critical of the Sri Lankan authorities. At one point Ms Mapue was subjected to a body search. Mr Weldt said he protested and as a result "one guy came and held a bayonet and said - put an arm lock on me and said … 'one more from you, you shut up'." On payment of US$1,000 the prosecutors were allowed to leave. 5 Upon their return to Colombo, Mr Weldt said that their house was stoned and neighbours were abusive towards Ms Mapue, seemingly because of her nationality. Mr Weldt told the tribunal: "Yes, they are facing horrendous sort of - because the neighbourhood - because each time a jeep pulls up, so they come and ask what's going on, and say no. So my wife - I mean, my - we've lived in the neighbourhood, I mean, the neighbours - but then after that it turned out to be like we were part of a target. So, I mean, on so many occasion my house was stoned; I mean, they have stoned the house literally every night. We can't have a party, we can't have a drink as normal human beings. … just try to get things going, we can hear a barrage of tyres gone, the kitchen sink, they throw bottles, I mean, stones. I mean, they block our land which I given some money sort of free to the municipality, they block everything. I mean, they build - they have their own law. They want to have a few … on the main street and there is no lights, we have to go and spend … okay, we'll see you tomorrow. I mean, you can live in darkness for months as long as you know how the money talks down there, it's all that money talks." 6 As a result of all of their troubles, the prosecutors left Sri Lanka and came to Australia to seek protection. 7 The tribunal was not satisfied that the prosecutors were Convention refugees. It gave the following reasons, in relation to Mr Weldt: "It finds that the state, and its agents, had a right to search the Applicant's baggage at the airport. It is the right, indeed the obligation, of governments to control the entry of goods and other material through their borders. While the Applicant believed he should not have been subjected to this treatment, the Tribunal is satisfied that it was not persecutory. His baggage was checked; he was asked questions about the large sums of money he carried and he and his goods were released. … The Tribunal is satisfied that it was not persecutory for the Applicant to be paid a further visit by security officers some days after the airport incident … It is implausible that the authorities would so readily permit him to leave the country if they seriously thought he was an LTTE money courier. … It is plausible that word had spread that he had returned from abroad carrying a great deal of money and that some people sought to extort money from him. It is possible that rumour grew that he had brought money for the Tamil cause. It is plausible that neighbours were racist and intolerant of his marriage to a non-Sri Lankan. The Tribunal is satisfied that this was uncomfortable and occasionally frightening. It does not find that the intimidation was for reasons of his own nationality, ethnicity, or religion. It accepts that the Convention ground of particular social group could be brought in at this time in that part of the motivation for local harassment was for reasons of his mixed marriage and that could be considered to be such a group. It accepts that the locals could have been anxious if anyone in their neighbourhood had any link with the LTTE and so there might have been a political element in that sense. However, the Tribunal does not find that the level of intimidation at that time was that of persecution. … If the detention happened, and the Tribunal has doubts that it did, then he and his family had the right to decent treatment. However, the result was not a serious one for him or for them. They were released. They were able to travel back to Colombo. They were able to make plans and to leave Sri Lanka from an official airport. That is, there was no behaviour on the part of the authorities to indicate that they wished to hinder him. If the authorities seriously suspected him of being an LTTE courier, then it would be odd of them to let him leave for overseas again. … The fact that he was able to leave Sri Lanka on the first occasion, re-enter and then leave again is strong ground for the Tribunal's finding that he was not and is not a person who faces a real chance of persecution for the reasons he has given." In relation to Ms Mapue's fear of persecution in the Philippines the Tribunal said: "It has considered her claim that the desertion of her brother from the Marcos army in 1983 had consequences for her and her family. While at the time it could have seemed a major matter, it is implausible that fifteen years and three governments later there would be any consequences for her. The Tribunal is satisfied that the Applicant has not suffered persecution in the Philippines in the past. It is satisfied that there are no grounds for assuming that she would in the future." 8 In the result, the tribunal found that Mr Weldt "has the ability as a Sri Lankan citizen to live with his wife and child in his own country" and Ms Mapue "has the option of returning to her own country of the Philippines. Her son has rights in that country and there is no evidence that her husband would be prevented from joining her there." 9 The first matter that must be resolved concerns the grounds of review that are available to the prosecutors. When an application to review a decision of the tribunal is brought to the Federal Court in its original jurisdiction, the grounds of review are confined to those set out in s 476 of the Migration Act. That is the effect of s 485(1). Here a proceeding has come to the Federal Court because of remittal under s 44 of the Judiciary Act. The prosecutors say they may challenge the decision of the tribunal on the grounds that would be available to them if the proceeding were still before the High Court. The jurisdiction of the High Court cannot be affected by restrictions such as those imposed on the Federal Court by s 476. 10 Whether or not the prosecutors' submission is correct depends upon the effect of s 485(3) of the Migration Act. That subsection provides: "If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part." 11 In Thambythurai v Minister for Immigration and Multicultural Affairs [1997] FCA 997, I pointed out that there was uncertainty as to the effect of s 485(3). Of particular concern was the meaning of the term "powers". Did it refer to the orders the Federal Court may make, or was it a reference to grounds upon which the court could grant relief, being the grounds specified in s 476? It was not necessary for me to resolve the issue, but I expressed preference for the view that a remitted proceeding did not give the Federal Court greater jurisdiction over the remitted matter than it would have had if the application for review had been instituted in the Federal Court. A contrary view was expressed by Weinberg J in A v Pelekanakis (1999) 91 FCR 70. 12 Recent decisions of the High Court suggest that the jurisdiction of the Federal Court, in a remitted matter, is confined by s 476. In Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 522 Gleeson CJ and McHugh J said: "Finally, s 485(1) of the Act provides that the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions under the Act other than the jurisdiction provided by Pt 8 of the Act or by s 44 of the Judiciary Act. Thus, the important jurisdiction conferred on the Federal Court by ss 39B(1) and 39B(1A) of the Judiciary Act is withdrawn in respect of decisions made under the Act. The combined effect of ss 476 and 485 of the Act, therefore, is that the jurisdiction of the Federal Court to review decisions under the Act is narrower in some respects than the jurisdiction conferred on this Court by s 75(v) of the Constitution, is narrower in some respects than the scope for review of administrative decisions at common law and is narrower than the scope for review of administrative decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the Judiciary Act. In other respects, however, the jurisdiction is arguably wider than the jurisdiction of this Court under s 75(v) and the jurisdiction at common law (cf s 476(1)(a), (e) and (g)). Nevertheless, it is clear that in important respects the jurisdiction of the Federal Court to review decisions under the Act has been severely truncated." Gaudron J said (at 550): "But for s 485, which, too, is in Pt 8 of the Act, the practical difficulties which arise in a case of the present kind could be eliminated by this Court exercising its power under s 44 of the Judiciary Act to remit matters arising under s 75(v) by s 39B of that Act. However, so far as decisions of the Tribunal are concerned, s 485 of the Act effectively renders the power of remitter useless." Gummow and Hayne JJ (who were in dissent on other grounds) said (at 572): "What Pt 8 of the Act seeks to do is to say that some, but not all, allegations of breach of that duty may be raised in and decided by the Federal Court. The inevitable consequence of limiting the kinds of allegation that may be made is that the Federal Court can never conclude that the decision challenged was made according to law. It may decide only that the particular grounds of challenge that were raised in the proceeding were not made out. The statute forbids it from embarking on some aspects of the more general inquiry whether the decision was made according to law." Kirby J said (at 582-583): "For reasons explained by the other members of the Court, as the Parliament has limited the grounds upon which the Federal Court may review a decision of the Tribunal (and has applied those limitations to any matter or part of a matter remitted to that Court by this Court), the jurisdiction of the Federal Court, however engaged, would be narrower than that of this Court as provided by the Constitution. To avoid the risk of injustice to Ms Abebe, were she to be able to make out an entitlement to a constitutional writ, it was therefore necessary for this Court to hear and determine her application. This is a consequence of the legislation. It must have been understood by the Parliament and appreciated by the Executive Government. It has certainly been called to notice. The prospect of this Court's having to hear and determine, in its original jurisdiction, applications of this kind, in default of the availability of equivalent redress in the Federal Court (or of effective remitter to the Federal Court), is extremely inconvenient. It is also expensive and time-consuming. These considerations suggest the need for further attention to legislation which has such an outcome." In Al-Miahi, in the matter of an application for Writs of Certiorari, Prohibition and Mandamus and an Injunction against Ruddock[2001] FCA 128, Branson J said that the result of Abebe was that the Federal Court could not exercise the same jurisdiction as the High Court in a remitted application. 13 If there was any doubt about the matter, that doubt was put to rest by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte PT [2001] HCA 20. His Honour noted that the High Court "is the only place in which judicial relief of the kind sought by the applicant can now be obtained … because, at least in respect of the complaint of the breach of the rules of natural justice, this Court cannot remit the matter elsewhere." (emphasis added). 14 Having established that the jurisdiction of the court is confined by s 476, I can now turn to the grounds of review which the prosecutors assert fall within the section. Here again, the prosecutors face an immediate difficulty. Their principal submission was that the tribunal had failed to comply with s 430 of the Migration Act, and that such a failure invoked s 476(1)(a). Section 430 imposes an obligation upon the tribunal to prepare a written statement setting out its decision, the reasons for its decision and the findings of any material questions of fact made, and referring to the evidence or other material on which those findings were based. One of the grounds of review provided by s 476(1) is that the procedures that are required by the Migration Act to be observed in connection with the making of a decision were not observed: s 476(1)(a). 15 Until the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, it was the accepted view that s 430 imposed an obligation on the tribunal to make findings on material questions of fact and, if it failed to do so, then the tribunal's decision could be set aside under s 476(1)(a) for want of procedural compliance. However, in Yusuf the High Court held otherwise. The High Court found that s 430 could not be read so as to imply an obligation to make findings: Yusuf at 20. The High Court also said that a failure to comply with s 430 was unlikely to result in a failure to comply with "a procedure which is to be observed in connection with the making of the decision in question". Accordingly, if there is a breach of s 430, that would not produce a reviewable error of the type contemplated by s 476(1)(a): see Yusuf at 20. 16 The prosecutors were also dealt a blow in relation to another submission. They sought to contend that the tribunal had fallen into error because it had failed to give "proper, genuine and realistic consideration" to the application, especially in relation to the "rough and frightening treatment by the authorities, racist treatment by neighbours, [and their alleged] persecution by detention…". In support of this ground they relied upon a decision of Merkel J in Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368. However, the Full Court (Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274), decided the so-called "proper, genuine and realistic consideration" ground of review formulated by Merkel J does not amount to an available ground of review under s 476. 17 This is not to say, however, that a failure to consider some aspect of a claim, or the failure to give some allegation proper consideration, could not amount to a reviewable error of law. In Yusuf at 19-20, McHugh, Gummow and Hayne JJ said: "If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past)." They went on to say that when a tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material in a way that effects the exercise of its power, the tribunal will be in error of law. "[D]oing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.": Yusuf at 22. 18 It is convenient to consider the prosecutors' complaints in the light of these principles. The first complaint is that the finding that "it was not persecutory for [Mr Weldt] to be paid a further visit by security officers some days after the airport incident" was erroneous because the tribunal did not go on to explain, and therefore failed to consider, whether the evidence of the prosecutors as to their rough treatment and the frightening conduct by the security officers, was persecutory. It should be noted that in dealing with this issue, the tribunal observed that no charges were laid against the prosecutors and they were not prevented from returning to work. The tribunal went on to say "It is implausible that the authorities would so readily permit [Mr Weldt] to leave the country if they seriously thought he was an LTTE money courier." 19 It may be inferred that the tribunal did not consider this incident to be persecutory. It was of opinion that the authorities did not seriously consider that Mr Weldt was working for the Tamil Tigers. The fact that the tribunal did not specifically spell this out does not amount to jurisdictional error. It is not necessary for the tribunal to give a line-by-line explanation for all of its findings when they are clear from its decision when read in its entirety. Indeed, the tribunal appears not to have considered the conduct to be persecutory because it did not reach a sufficient level of seriousness. This decision was open to it. Whether conduct amounts to persecution involves a consideration of the level and degree of mistreatment suffered by an applicant: Arumugam v Minister for Immigration and Multicultural Affairs [1999] FCA 251. Unless there is a clear error in principle, the court cannot "second guess" the tribunal. 20 Next, the prosecutors contend that the tribunal decision that it was "not satisfied that the response of the authorities to their discovery of the money was persecutory", demonstrates error of law. The prosecutors argue that the strip search and detention at the airport was "a further event in a continuing history of increasingly severe treatment" by the authorities, and the failure to consider this conduct as persecutory, or likely to lead to persecution, shows that the tribunal misunderstood what constitutes persecution. 21 The tribunal, in considering this issue, said: "[Mr Weldt] was not long detained at the airport. It was not persecutory of customs or security officers to ask him the source of the money and its destination. As indicated above, in the context of violent civil strife in Sri Lanka, it was not persecutory of them to raise with him suspicions that he was working with and for the LTTE. He was permitted to take the money with him from the airport. He was not detained at that time nor were any charges laid against him." In other words, the tribunal considered that the authorities had a legitimate right to search the prosecutors after they were found with, in Mr Weldt's own words, "exorbitant amount[s] of travellers cheques". As was pointed out by McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258, "[c]onduct will not constitute persecution … if it is appropriate and adapted to achieving some legitimate object of the country of the refugee." The tribunal noted that it "is the right, indeed the obligation, of governments to control the entry of goods and other material through their borders." Putting to one side whether a government is obliged to control the entry of goods, it is plainly correct that a government may legitimately search and question those who do not declare cash or other goods. The tribunal made it clear that it did not regard the second incident at the airport to be persecutory as the authorities were well within their rights in taking the action they took, and the tribunal was clearly entitled to make that finding. 22 Next, the prosecutors argue that the Tribunal did not consider whether the prosecutors' racist treatment by their neighbours could escalate to a level of persecution. They submit that the Tribunal erred in finding, in relation to Mr Weldt, that the intimidation was not "for reasons of [Mr Weldt's] nationality, ethnicity, or religion", and therefore the race ground under the Convention could not be satisfied. The alleged error is the failure to recognise that if the motivation for the persecution is racial, then it would satisfy one of the Convention grounds. In reality this point does not arise for consideration because the tribunal made a specific finding that it did not consider the level of intimidation could amount to persecution. This finding is not reviewable: Arumugam at par 37. As to the allegation that the tribunal failed to consider the possibility of the escalation of treatment, I note the tribunal found that Mr Weldt was able to live with his wife and child in his own country. It seems to be tolerably clear that the tribunal did not consider the level of harassment would escalate. 23 The prosecutors then say that the tribunal failed to consider whether the six day detention suffered by the prosecutors was persecutory, and failed to consider whether there was a real chance of such treatment occurring again. It is true that in the two paragraphs dealing with the six day detention the tribunal did not specifically say "this was not persecution". However, it is clear what the tribunal's decision and reasons were in relation to this incident. The tribunal said that it had doubts whether the detention actually happened, noting that it did not find Mr Weldt's account of his arrest and detention entirely satisfying. The Tribunal went on to say that if the detention did happen, the result was not serious for the prosecutors as they were released and were able to travel back to Colombo and leave Sri Lanka from an official airport. The conclusion that it reached was: "[T]here was no behaviour on the part of the authorities to indicate that they wished to hinder him. If the authorities seriously suspected him of being an LTTE courier, then it would be odd of them to let him leave for overseas again." It is apparent that the tribunal did not consider the level of maltreatment was sufficiently serious to constitute persecution and, if it did, it was not carried out for a Convention reason. These views were open on the evidence. 24 In relation to Ms Mapue's alleged concerns about returning to the Philippines, the tribunal said that she had not established facts that "would support a claim that her fear of returning there is well-founded". This view was open to the tribunal. Indeed, on the facts as presented to it by Ms Mapue, any other finding would have been unreasonable. 25 For the above reasons the application should be dismissed with costs. I certify that the preceding twenty five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.