VAAR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 252 (23 August 2002)

Last Updated: 29 August 2002

FEDERAL COURT OF AUSTRALIA

VAAR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 252

MIGRATION - no error demonstrated - appeal dismissed

Migration Act 1958 (Cth) s 474

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

Judiciary Act 1903 (Cth) s 39B

Australian Constitution s75(v)

Muin v Refugee Review Tribunal [2002] HCA 30, applied

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, applied

VAAR OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 195 OF 2002

MARSHALL, NORTH AND FINKELSTEIN JJ

MELBOURNE

23 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 195 OF 2002

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT VAAR OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MARSHALL, NORTH AND FINKELSTEIN JJ
DATE OF ORDER:	23 AUGUST 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the respondent's costs of the appeal.

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 195 OF 2002

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT VAAR OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	MARSHALL, NORTH AND FINKELSTEIN JJ
DATE:	23 AUGUST 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from Weinberg J dismissing an application by the appellant for review of a decision of the Refugee Review Tribunal ("the RRT"). On 17 January 2002, the RRT had affirmed a decision of a delegate of the respondent not to grant a protection visa to the appellant.

2 The relevant law on the appeal is the Migration Act 1958 (Cth) ("the Act") as it stands following the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ("the 2001 Act") which came into force on 2 October 2001. The new provisions apply to applications for judicial review of decisions made under the Act on or after 2 October 2001 and decisions made before that date if an application for judicial review of the decision had not been lodged prior to that date.

Background

3 The appellant is a citizen of Sri Lanka of Sinhalese ethnicity. He entered Australia on 5 November 2001 as the holder of a sub-class 420 (Entertainment) visa. On the day of his arrival in Australia, the appellant's sponsor withdrew her sponsorship when she discovered the appellant was not a bona fide entertainer. As a result, his visa was cancelled and he was taken into immigration detention.

4 While in detention the appellant applied for a protection visa. His application was refused by a delegate of the respondent on 6 December 2001. On 13 December 2001, the appellant applied to the RRT for a review of the delegate's decision.

5 The RRT conducted an oral hearing on 17 January 2002. It published its reasons for affirming the delegate's decision on the same day as the hearing.

The appellant's claims before the RRT

6 The case the appellant put to the RRT is as follows. The appellant was an active supporter in the 1994 elections of the Sri Lankan Freedom Party ("SLFP"). He supported the campaign of an individual who was elected as a member of parliament in the 1994 elections. He was targeted for harm following the elections because of his criticism of the then opposition party, the United National Party ("UNP"). The appellant said that he received death threats as a result of his involvement in the elections. In particular he claimed that a member of Parliament who was influential and wealthy wanted to harm him.

7 Between January 1997 and February 2001, the appellant resided and worked in Saudi Arabia. He returned to Sri Lanka in February 2001 as his mother had expressed her wishes to see him. He considered it safe to return.

8 Upon his return to Sri Lanka, the appellant resumed an active role with his party, the Peoples Alliance ("PA") (the SLFP had joined with other parties in the 1994 elections to become the PA). Subsequently the appellant had threats made against him and, as a result, he fled Colombo for Polonnaruwa. The appellant remained in Polonnaruwa for four months before going to Australia. He did not return to Sri Lanka because he had a political profile such that he would be a target for adverse treatment by the UNP.

The RRT's decision

9 The RRT accepted that the appellant may have been a critic of the UNP in 1994. The RRT found, however, that "criticising the opposition is a normal feature of an election" and that it was "implausible" that this would lead to the appellant being singled out for special post-election attention. The RRT was not satisfied on the evidence before it that the appellant was more than a "normal" active supporter of his party in 1994.

10 The RRT also stated that it could find no reason from the appellant's assertion that "he became and would remain a target for having been a supporter of the SLFP" in the 1994 elections. Again, the RRT stated that it was "not satisfied" that the appellant had developed a political profile during 1994 nor maintained such profile sufficient to establish a well-founded fear of persecution on the ground of political opinion if returned to Sri Lanka.

11 In relation to the appellant's claim to have been the subject of death threats subsequent to the 1994 elections, the RRT said that it did not find the appellant's evidence to be convincing. The RRT did not accept that the appellant continued to be of any interest to the UNP after the elections.

12 The RRT found it "implausible" that the appellant was immediately targeted upon his return to Sri Lanka in 2001. It did not find his evidence that he had been an active participant in the lead-up to the recent elections convincing and stated that it was "implausible" that he would be targeted for his 1994 involvement. It viewed his resumed political involvement as no more than a renewal of his past affiliation. Again it did not consider that he had a particular political profile such that he would be the subject of adverse attention from alleged persecutors. Nor did it consider that the appellant was bound to develop a political profile upon his return to Sri Lanka.

The reasoning of Weinberg J

13 The trial judge noted that the application, having been filed after 1 October 2001, involved the Court exercising jurisdiction to review the RRT's decision solely under s 39B of the Judiciary Act 1903 (Cth). Weinberg J referred to s 474 of the Migration Act and noted that the RRT's decision was a "privative clause" decision within the meaning of s 474(2).

14 Weinberg J referred to the difference in approach between some judges of the court on the proper interpretation of s 474 but at [11] said that "that debate need not be addressed in the present case". This was for the reason, according to Weinberg J, that the alleged errors which the appellant attributed to the RRT were not jurisdictional errors. One alleged error was that the RRT had wrongly suggested that the appellant appeared in a certain photograph. The other was that the RRT was wrong not to accept his evidence of threats against him. Weinberg J held that "[i]t was plainly open to the RRT to reject that evidence".

The case on the appeal

15 On the appeal counsel for the appellant put a different case from that raised by his client before the trial judge. The new ground was that the RRT's decision was tainted with jurisdictional error because the RRT failed to show certain material to the appellant which was adverse to his claim for a protection visa. That material was said to be:

* a departmental submission that the appellant had knowingly participated in a scam to enter Australia as part of a bogus Sri Lankan dance group;

* a photo, including the appellant, of the dance group with its members wearing traditional dress and holding traditional instruments.

It was contended that by failing to advise the appellant of the submission and the photo the RRT had denied him procedural fairness. Reliance was placed on the recent judgment of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30.

16 In Muin certain material adverse to the refugee claimant was received by the RRT after the delegate's decision the content of which was not communicated to Mr Muin so that he was not able to make a submission about it.

17 The High Court had jurisdiction to deal with the claim of denial of procedural fairness under s75(v) of the Constitution. That jurisdiction was not then available to this Court. In Muin the proceedings were brought within the High Court's original jurisdiction; see per Gaudron J at [44]. Relief was sought "by way of constitutional writ pursuant to s75(v) of the Constitution." (see per Gaudron J at [45]).

18 At [61] in Muin, Gaudron J referred to "the limited grounds upon which an aggrieved person may seek review of a Tribunal decision in the Federal Court." At the time s 476(2)(a) of the Act provided that an application to the Federal Court to review a decision of the RRT was not able to include a ground "that a breach of natural justice occurred in connection with the making of the decision."

19 Part 8 of the Act was substantially amended by the 2001 Act. There is no longer a prohibition on the Federal Court dealing with a claim that a breach of natural justice had occurred with respect to an RRT decision. Instead Pt 8 of the Act makes decisions of the RRT "privative clause" decisions, that is, decisions which can only be challenged on very narrow grounds. The ambit of these grounds was considered by a Full Court of five members in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, which was handed down after we heard submissions on this appeal. The majority of the Full Court held that a denial of procedural fairness is not subject to challenge by way of judicial review to this Court in respect of decisions made after the enactment of the 2001 Act, but prior to the enactment of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) ("the 2002 Act").

20 It follows that the appellant's claim that he had been denied procedural fairness is not a basis upon which the RRT's decision could be set aside. In any event, it is clear that the RRT has not erred in the manner alleged.

21 At pp 4-5 of its reasons for decision the RRT said that:

"The Applicant arrived in Australia on 5 November 2002 on a sub-class 420 (entertainment) visa. He was one of 15 others who were granted the same class of visa to perform in Australia. The group included three people who were known to have musical credentials. However, the Department concluded that this had been merely a pretext to enter Australia and that the Applicant was not, in fact, a performer. He admitted that his visa was obtained through an agent in Sri Lanka but the Department concluded that he had knowingly participated in the scam. He appeared in group photos, some of whom were wearing traditional dress and holding traditional instruments. The director of the group, Mr Sunil Padmasiri, was interviewed at the Australian High Commission in Colombo on 31 October 2001. He provided photographs of dancers as evidence of the reality of his dance centre and the troupe. The interviewing officer was satisfied that Mr Padmasiri was a dancing master and that he had personally selected the 13 dancers and drummers who sought to come to Australia. Evidence emerged that he already had applied to take the troupe to the United States but had been rejected as the US embassy staff found the performance of the group `unconvincing'. The Applicant, as other members of the group, was interviewed by the Embassy officer. He told the officer that he had no fears of returning to Sri Lanka and that he was not at risk of persecution there. The group was granted visas to enter Australia."

22 At p 8 of its reasons for decision the RRT said that:

"The fact that the Applicant entered Australia after having falsely claimed to be a dancer does not in and of itself mean that he cannot be a refugee. Even the fact that he told an Australian Embassy officer in Colombo that he had no fear of persecution in Sri Lanka also does not rule out the possibility that he was fearful and that he told lies in order to find safety elsewhere. The matter of his need for protection is to be assessed on the claims he has made that he has a well-founded fear of persecution for reasons of his political opinion."

23 At p 11 of its reasons for decision the RRT said:

"The Tribunal concurs with the opinion of the Department, and the Minister's delegate, that the Applicant participated in a scheme to enter Australia for purposes which were not related to the Refugees Convention. It is satisfied that he came to Australia for the reason he went to Saudi Arabia, to find a better life for himself. This is understandable but it does not make him a refugee under the Refugees Convention. The Tribunal is satisfied he can return to live with his family free from the fear of persecution for reasons of his political opinion."

24 It is clear that the RRT did not take into account in any adverse way, the appellant's appearance in a group photograph of the supposed dance troupe. It made clear at p 8 of its reasons that it assessed his claims only by reference to the assertion that he had a well founded fear of persecution by reason of his political opinion. In a real sense the reference to the appellant having participated in a "scam" to enter Australia for purposes unrelated to the Refugees Convention was not a necessary one for the RRT to make. The appellant admitted to falsely representing to be an entertainer to enter Australia. Whether his activities could be described as being part of a "scam" was not an important issue so far as the RRT was concerned.

25 In any event if, contrary to our view, the appellant's role in the so called scam was taken into account, it is unlikely that the RRT erred by failing to give the appellant advance notice of that fact. It should have been obvious to the appellant that the RRT might have regard to his previous visa application in assessing his current application.

26 Finally, the appellant contended that the RRT relied on irrelevant material, that is, the appellant's alleged appearance in the photograph, in a way that affected the exercise of the RRT's power. Such reliance, it was contended, amounted to jurisdictional error.

27 As we have already explained the appearance of the appellant in the photograph was not part of the reasoning of the RRT. The appellant has not, therefore, established any error made by the RRT in this regard. It is not necessary in these circumstances for the Court to determine whether such an error would amount to a jurisdictional error.

Disposition

28 It follows that the appeal must be dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 23 August 2002

Counsel for the Appellant:	Mr N Moshinsky QC (directly briefed)
Counsel for the Respondent:	Ms H Riley
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	12 August 2002
Date of Judgment:	23 August 2002