M159 of 2003 v Minister for Immigration & Multicultural& Indigenous Affairs [2004] FCA 131 (6 February 2004)

Last Updated: 23 February 2004

FEDERAL COURT OF AUSTRALIA

M 159 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 131

MIGRATION – protection visa – judicial review – where country information two years old at time of Tribunal decision – whether material sufficient for finding that applicant had no objective basis for fear of persecution.



SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90, referred to
Abebe v the Commonwealth [1999] HCA 14; (1999) 197 CLR 510, referred to
Prasad v Minister for Immigration & Multicultural Affairs (1985) 6 FCR 155, referred to
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1522, referred to
Rahman v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1277, referred to






















APPLICANT M 159 of 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
V 788 of 2003

GOLDBERG J
6 FEBRUARY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 788 of 2003

BETWEEN:	APPLICANT M 159 of 2003 Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	6 FEBRUARY 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent’s costs of and incidental to the application.

























Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 788 of 2003

BETWEEN:	APPLICANT M 159 of 2003 Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent

JUDGE:	GOLDBERG J
DATE:	6 FEBRUARY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 On 26 May 2003 the applicant filed papers in the High Court of Australia seeking an order nisi for the issue of writs of mandamus, prohibition and certiorari and ancillary injunctive relief in respect of a decision of the Refugee Review Tribunal ("the Tribunal"). On 30 June 2000 the Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Indigenous Affairs ("the Minister") who had refused to grant the applicant a protection (class AZ) visa pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"). In a draft order nisi filed in the High Court by the applicant the following grounds were set out:

"(a) a breach of the rules of natural justice occurred in connection with making of the Decision

(b) the Decision involved an error of law, whether or not the error appears on the record of the Decision

(c) procedures that were required by law to be observed in connection with making of the Decision were not observed.

(d) the making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

(e) that there was no evidence or other material to justify the making of the Decision

(f) the Decision was otherwise contrary to law."

2 These grounds were not subsequently expanded or amended. In the affidavit filed in support of the application for the order nisi the applicant stated that he made the application pursuant to leave granted by the High Court on 8 August 2002 in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601. The High Court remitted the matter to the Federal Court by an order of Gaudron J on 25 November 2002.

3 The applicant is a citizen of Sri Lanka, a Sinhalese man from Nugegoda. He arrived in Australia on 12 January 1998. On 23 February 1998 he lodged an application for a protection (class AZ) visa with the Department of Immigration and Multicultural Affairs pursuant to the provisions of the Act. On 27 April 1998 a delegate of the Minister refused to grant the applicant a protection visa and on 5 May 1998 the applicant applied to the Tribunal to review that decision. At the date of the Tribunal’s decision the applicant was 29 years old.

4 The applicant’s claim to fear persecution if he is returned to Sri Lanka was based upon political grounds, having regard to his previous political involvement and harassment and attention which had occurred prior to his leaving Sri Lanka. His claim centred around his connection with the activities of the United National Party ("UNP"), Janatha Vimukthi Peramuna ("JVP") and the Liberation Tigers of Tamil Eelam ("LTTE").

5 The Tribunal found that there were a number of inconsistencies between the account given by the applicant in his application and his account given at the hearing, and that there were also inconsistencies between his accounts and the country information. The Tribunal set out in some detail the claims which the applicant had made in his application, the evidence of the applicant at the hearing before the Tribunal and the country information upon which it relied.

6 The Tribunal noted that in his application for a protection visa the applicant:

"... stated that he left the country to escape life threatening acts from those who perceived him as a political opponent and as an enemy to the unitary status of the Sri Lankan government. He claimed that his life will be in danger and he will be subjected to extrajudicial arrest and detention."

7 The applicant claimed that his parents were strong supporters of the UNP, that in 1987 he was forced to undergo indoctrination for the JVP and that in 1988 JVP members came to his house, shot his parents and destroyed their property because his parents supported the Premadasa UNP faction.

8 The applicant claimed that after 1993 he received anonymous letters from the opponents of the UNP, including the JVP, and that he had been attributed with a political opinion of support for the Tamils. He identified a number of incidents involving Tamil people and Tamil extremists with whom he claimed the Sri Lankan security forces associated him. He referred to incidents where he claimed to have been subjected to atrocities by the securities forces and other incidents where he was arrested.

9 The Tribunal noted that at the hearing the applicant provided the Tribunal with a number of letters. One was from his sister which had arrived about six months prior to the Tribunal hearing in which she said "they are searching for you. Specially people who worked for the old party." The applicant told the Tribunal that his sister was referring to the JVP.

10 Another letter was from the applicant’s mother’s elder sister, which he said he received one month before the Tribunal hearing and in which it was stated that recently the special police had come to her house to search for a number of persons, including the applicant. The Tribunal referred to a body of country information in relation to the LTTE, sympathisers of the LTTE and persons in respect of whom the authorities might impute an opinion of support for the LTTE. The Tribunal also referred to country information in relation to the JVP. The Tribunal set out a very brief history of the JVP which had been formed in 1964 and then stated:

"The evidence is overwhelming that there has been a complete change in the situation vis-a-vis the JVP from the situation which prevailed in the late 1980s when the applicant was in Sri Lanka; and there is general agreement among informed opinion that the JVP was effectively subjugated by March 1990, following two insurrections in early 1988 and late 1989 and a massive and brutal response by the government during which JVP leader Rohan Wijeweera and his deputy Upatissa Gamanayake were killed. Since then, as can be seen from the reports below, the evidence points conclusively to the demise of the JVP as a force capable of conducting a campaign of violence and terror."

11 The Tribunal then set out extracts from a number of reports from various sources, including the Department of Foreign Affairs and Trade. The Tribunal noted that Amnesty International reported on Sri Lanka from 1989 to 1990 that there were killings by the JVP. However the Tribunal noted that by the end of 1990 Amnesty International reported that the government said that it had destroyed the armed opposition of the JVP and subsequent reports make no reference to any acts by the JVP.

12 The Tribunal also noted the following:

"It also needs to be pointed out that the JVP is no longer a proscribed organisation but a legal political party with parliamentary representation, having contested the August 1994 election under the umbrella of the Sri Lankan Progressive Front (SLPF) and won one seat. However, despite this modest re-emergence of the JVP, it is not even a shadow of the organisation which for years challenged and believed it could defeat the Sri Lankan Government by force. It has split into a number of factions and attempts to re-organise it have also been hampered by the fact that its leadership was almost entirely eliminated in 1989 and the communist ideology it espouses has been largely discredited since 1989."

The Tribunal found that to the extent that the applicant claimed to fear persecution, either by the JVP or because of some association with the JVP, it did not accept that such fears were consistent with the country information to which it had referred. The Tribunal noted:

"The country information indicates that the JVP was crushed as a militant force by 1991 and has only returned as a minor political party."

13 The Tribunal found that on the basis of the country information there was no real chance that anyone from the JVP was "after him [the applicant]", or that the security forces were interested in him because of any previous JVP association. In particular the Tribunal said:

"Whilst it may be the case that his parents were killed in 1988 by the JVP this was before the authorities brutal campaign against the JVP."

14 To the extent that the applicant claims that the references in the various letters he produced relate to the JVP, the Tribunal did not find such reference plausible. The Tribunal found that:

"... the applicant does not have a well-founded fear of persecution in relation to any political opinion either for or against the JVP."

15 The Tribunal found that the applicant’s claim that the JVP made threats against him after 1993 was "far fetched and implausible". The Tribunal then made findings on other claims made by the applicant in relation to his support for the UNP and his political views in favour of the LTTE. The Tribunal found that to the extent that the letters provided by the applicant related to the JVP, the Tribunal considered the information in them to be unreliable and inconsistent with the country information.

16 The Tribunal’s final conclusion was that there was no real chance that the applicant would face persecution because of his political opinion, imputed political opinion or for any other Convention reason should he now return to Sri Lanka. The Tribunal was not satisfied that he was a person to whom Australia had protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 ("the Convention").

17 The applicant’s submission that the Tribunal fell into error and that there was a ground for the issue of writs of prohibition, mandamus and certiorari can be shortly stated. I should point out at this stage that the submission made by the applicant before the Court was not a submission based on the Muin case at all and this was acknowledged by the applicant’s counsel. I should also note that little time was spent on the issue of leave being obtained to extend the time for making an application for an order nisi for the issue of a writ of certiorari and mandamus, or the substantive issues of jurisdictional error and breach of the rules of natural justice. However, I consider that putting these matters aside, the application can be resolved on the basis that the principal claim made by the applicant cannot be made out on the facts and the reasoning of the Tribunal.

18 The applicant limited his submissions to issues relating to the JVP. The applicant submitted that the Tribunal’s acceptance of the claim that the applicant’s parents were killed in 1988 by the JVP demonstrated that there was a reason for the applicant’s well-founded fear of persecution. He submitted that there was no attempt by the Tribunal to access recent information in relation to the JVP. The applicant submitted that the Tribunal had to determine whether the applicant had a well-founded fear of persecution as at the date of the decision, however the Tribunal did not rely upon or refer to any information about the JVP dated within the two years prior to the decision being given. In short, it was submitted that the Tribunal had an obligation to inquire as to what the situation was in relation to the JVP as at the time of its decision.

19 I reject the submission that in the circumstances of the case before it the Tribunal had an obligation to make any further inquiries in relation to the situation of the JVP as at, or shortly prior to, the date of handing down its decision. It was not for the Tribunal to make the applicant’s case for him, but rather it was for the Tribunal to decide the matter on the basis of the submissions and claims made by the applicant in the material available to it: see generally SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90, at [80]; Abebe v the Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576; Prasad v Minister for Immigration & Multicultural Affairs (1985) 6 FCR 155 at 169-170; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1522 at par  [25] and Rahman v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1277 at par  [29].

20 In fact, the Tribunal made a comprehensive analysis of a considerable body of JVP material and took into account the submissions and claims made by the applicant in relation to the JVP and such evidence as he produced in relation to it. The Tribunal did not accept as plausible the letters relating to the JVP and it was open to the Tribunal to so find. Any attempt by the applicant to suggest that the Tribunal’s findings in relation to the letters was not open to it must be seen as an attempt merely to seek to re-agitate the merits of the matter.

21 I am prepared to accept for the purposes of the argument that the Tribunal was required to make a finding as to whether the applicant had a well-founded fear of persecution as at the date of the decision. Properly analysed, the Tribunal’s findings were that at some point in time prior to the date of its decision, and well before the period of two years prior to the decision, the JVP had ceased to be a forceful entity which might be the cause of persecution of the applicant. As can be seen from the extracts in the Tribunal’s reasons, to which I have referred above in pars [10]-[12], the Tribunal made findings that the JVP had ceased during the 1990s to be the force for terror and persecution that it had been in the past. It was clearly open to the Tribunal, on the material before it, to make such a finding.

22 When the Tribunal found that it did not accept the applicant’s fears of persecution either by or because of some association with the JVP, and that the applicant’s claimed fears were not consistent with the country information, it was not making a finding that the applicant did not have a fear of persecution, but rather that any such fear was not well founded on an objective basis. That said, there is no inconsistency between the Tribunal’s finding that it accepted that the applicant’s parents were killed in 1988 by the JVP and that the applicant did not have a well-founded fear of persecution on the basis of actual or implied political opinion either for or against the JVP.

23 The applicant’s submission confuses and elides the two matters which need to be determined in relation to whether there is a well-founded fear of persecution, namely whether there is a subjective fear on the one hand and, on the other hand, whether that subjective fear is objectively well founded. I am satisfied that the Tribunal made a finding that well before the date of the decision there was no objective basis for a fear of persecution either by or because of the JVP, and that its finding continued to be relevant up to the date of the decision. By the time of the decision there was no material upon which the Tribunal relied that would alter its earlier finding that the applicant did not have an objectively well-founded fear of persecution by the JVP.

24 Accordingly, there is no obligation on the Tribunal to make any further findings as at the date or approaching the date of its decision. The material relied upon by the Tribunal was not out of date, nor was it inadequate. I am satisfied that on a careful reading of the decision and reasoning of the Tribunal there is no reviewable error disclosed. The application will be dismissed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated: 23 February 2004

Counsel for the Applicant:	Mr R Hamilton
Solicitor for the Applicant:	Di Mauro Solicitors
Counsel for the Respondent:	Mr G Carroll
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 February 2004
Date of Judgment:	6 February 2004