VAAW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 259 (21 November 2003)

Last Updated: 21 November 2003

FEDERAL COURT OF AUSTRALIA

VAAW v Minister for Immigration & Multicultural &

Indigenous Affairs [2003] FCAFC 259

MIGRATION - appeal from Federal Magistrates Court of Australia (`FMCA') - FMCA dismissed application for relief in respect of decision of Refugee Review Tribunal to affirm decision not to grant applicant a protection visa - FMCA applied law relating to effect of s 474 of Migration Act 1958 (Cth) established in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2003) 123 FCR 298 - subsequent decision of High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24 - whether Court should remit to FMCA or decide matter itself - no lengthy consideration of evidence required - clear what result must be - whether `persecution' - whether `serious harm'.

Migration Act 1958 (Cth) s 474

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24 applied

SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 cited

NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 19 cited

NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 25 cited

SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121; (2003) 199 ALR 281 cited

NALU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 31 cited

NAOB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 33 cited

SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 cited

VAAW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V 71 of 2003

RYAN, LINDGREN AND SUNDBERG JJ

21 NOVEMBER 2003

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 71 OF 2003

On appeal from the Federal Magistrates Court of Australia constituted by Bryant CFM

BETWEEN:	VAAW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	RYAN, LINDGREN AND SUNDBERG JJ
DATE OF ORDER:	21 NOVEMBER 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be 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 71 OF 2003

On appeal from the Federal Magistrates Court of Australia constituted by Bryant CFM

BETWEEN:	VAAW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	RYAN, LINDGREN AND SUNDBERG JJ
DATE:	21 NOVEMBER 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1 The appellant appeals to the Court from a judgment of the Federal Magistrates Court of Australia (`FMCA') (VAAW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 200). The Court is given jurisdiction to hear and determine such an appeal by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (`the FCA Act'). The FMCA was constituted by the Chief Federal Magistrate who gave the judgment under appeal on 17 January 2003. The judgment took the form of an order that the application brought by the appellant as applicant against the present respondent (`the Minister') as respondent be dismissed.

2 In the FMCA, the appellant sought declarations and injunctive relief and orders in the nature of certiorari, prohibition and mandamus in respect of a decision of the Refugee Review Tribunal (`the Tribunal') made on 7 January 2002. By that decision the Tribunal had affirmed a decision of a delegate of the Minister (`the Delegate') not to grant a protection visa to the appellant.

3 Bryant CFM noted the grounds of the application before her. They can be summarised as follows:

(1) That the Tribunal's decision was based on findings on credibility which were adverse to the appellant and which were `not open on the material before [the Tribunal] after consideration of matters that were logically probative of the issue of credibility' (at [18] of her Honour's reasons);

(2) That the Tribunal `misconstrued or misapplied' the notion of `persecution' referred to in the definition of `refugee' in article 1A(2) of the 1951 Convention Relating to the Status of Refugees (as `amended' by the 1967 Protocol Relating to the Status of Refugees), as limited by s 91R of the Migration Act 1958 (Cth) (`the Act') (at [21]); and

(3) That the Tribunal erred by failing to ask itself the question, `What if I am wrong?'.

4 Her Honour said that she did not need to resolve these contentions because the appellant accepted that they would only serve to establish error of law, and that s 474 of the Act operated to `increase the Tribunal's jurisdiction and to protect the decision against attack on the basis of an error of law' (at [28]).

5 In taking this view, the learned Chief Federal Magistrate, as she was bound to do, applied the law as to the effect of s 474 as it had been established by a Full Court of this Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 123 FCR 298 (`NAAV'). But on 4 February 2003, the High Court delivered judgment in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24 (`S157'). The Minister accepts that `NAAV has been effectively overruled' by S157. The Minister submits, however, that notwithstanding the approach taken below, now shown to have been erroneous, the Tribunal's decision is not affected by `jurisdictional error' - a ground of invalidity which S157 recognised survived s 474.

6 The questions which arise on the appeal are:

* whether the Court should allow the appeal on the ground mentioned, set aside Bryant CFM's order of dismissal, and remit the proceeding to the FMCA for hearing and determination of the matter in accordance with S157 (cf s 28(1)(c) of the FCA Act), or, in the alternative, itself hear the determine the question whether the Tribunal's decision was infected by jurisdictional error; and

* if the latter, whether the Tribunal's decision was infected by jurisdictional error.

7 Counsel for the Minister has helpfully identified the cases revealed by his researches in which Full Courts or single judges exercising appellate jurisdiction have been called upon since S157 to decide the first kind of question in relation to appeals from judgments of the FMCA in which a Federal Magistrate `erroneously' followed NAAV. Since a discretionary judgment is involved and the facts of no two cases are identical, precedents are of limited value. In particular, the relevance of the single judge decisions is questionable. The reason is that the Chief Justice's direction under subs 25(1A) of the FCA Act that the appellate jurisdiction be exercised by a single judge may be taken to have been made on the basis of the law as established in NAAV, and it is arguably unfair in these circumstances that an appellant should be deprived of the benefit of a decision at first instance as to whether jurisdictional error has occurred with a right of appeal from that decision: cf SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74, per Mansfield J at [23]-[25].

8 Full Courts have sometimes remitted (as in NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 19; NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 25; SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121; (2003) 199 ALR 281) and have sometimes decided for themselves (as in NALU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 31; NAOB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 33; SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90) the question whether there was jurisdictional error. The appropriate course to take depends on the circumstances of the particular appeal, including the nature and extent of the evidence to be considered and whether there is an arguable prospect of success.

9 Accordingly, we must consider the relevant background circumstances before deciding the first, as well as the second, question mentioned in [6] above.

PROCEDURAL BACKGROUND

10 The appellant, a citizen of Sri Lanka of Sinhalese ethnicity, arrived in Australia on 5 May 2001. He held a business visa which was endorsed on a false passport in the name of another person bearing a photograph of the appellant. (the appellant claimed that a man named Bandula obtained the false passport for him and arranged his departure from Sri Lanka.)

11 On 29 June 2001 the appellant's business visa was cancelled and he was placed in immigration detention.

12 Later, in an interview with an officer of the Department of Immigration and Multicultural Affairs (`the Department'), the appellant revealed his true name.

13 On 10 July the appellant lodged with the Department an application for a protection visa.

14 On 26 September 2001 the Delegate refused to grant a protection visa.

15 On 28 September 2001 the appellant lodged with the Tribunal an application for review of the Delegate's decision.

16 On 9 October 2001 the appellant was released from detention.

17 On 30 November 2001 the Tribunal conducted a hearing at which the appellant gave oral evidence.

18 As noted earlier, on 7 January 2002 the Tribunal affirmed the Delegate's decision.

19 On 4 February 2002 the appellant commenced proceeding V 63 of 2002 in this Court applying for review of the Tribunal's decision.

20 On 4 April 2002 a judge of the Court ordered that the proceeding be transferred to the FMCA, where it was numbered MZ 334 of 2002.

21 The hearing before the Chief Federal Magistrate proceeded on the basis of an amended application filed in the FMCA on 3 May 2002.

THE APPELLANT'S CLAIMS

22 The appellant was born on 27 March 1955 and is an unmarried man. He lived at Kandy in Sri Lanka, and worked on a casual basis as a jewellery designer and driving cars from the Colombo harbour area to car dealers in Kandy.

23 The appellant claimed that he and his family have long supported the United National Party (`UNP'), a democratic, socialist, and mainly Sinhalese party formed in 1946, not long before Sri Lanka became independent.

24 The UNP is regarded as the largest and best organised political party in Sri Lanka and its members include some of the most prominent individuals in the country. The UNP formed the national government of Sri Lanka for 17 years until it was defeated at the national election of 1994 by the People's Alliance (`PA'), a coalition of left-wing parties.

25 The appellant's claim was that he was persecuted for reason of his political opinion by members of the PA, and, in particular, by Lohan Ratwatte (`Lohan'), the apparently thuggish son of Anuruddha Ratwatte, the Deputy Defence Minister in the then PA government.

26 The Tribunal analysed the appellant's claims and independent country information.

27 The appellant claimed to have joined the UNP in 1985 because his father and grandfather had been active in it and because some of his friends were.

28 The appellant claimed that in 1996 he became an `organiser' for the UNP in the Senkagadala Electorate in the Central Province, and, in fact, that he was second in line after the Chief Organiser, Chanaka Ailapperuma, although he did not become active in that role until 1999. Until then, nothing untoward happened to him.

29 Indeed the appellant claimed that he did not start experiencing serious trouble until about five months prior to the national election which was held on 10 October 2000 at the end of the six year term of the members of the national Parliament who had been elected in 1994.

30 The appellant claimed that until then he had only been abused (verbally) and had stones thrown at him (apparently in 1999 in connection with the Central Province Provincial Council Election in April of that year). But, according to the appellant, at a gathering in about October 2000, Lohan and his supporters targeted the appellant and assaulted him and others, including candidates for the national election. The police intervened and the appellant, who was injured, was taken into police custody for a day. the appellant claimed to believe that this happened at the instigation of Lohan. (Apparently, a UNP rally had been interrupted by Lohan and his supporters, and some UNP supporters, including the appellant, gathered outside the local police station to protest over this, and it was then that the assault on the appellant took place.)

31 The appellant claimed that Lohan wanted him to give up his work for UNP, came to his home and wrecked it, and beat his brother when the appellant was not there.

32 The PA won government as a result of the October 2000 election. (Interestingly, it did not retain power and, at a further election held on 5 December 2001, a coalition which included the UNP came to power, although the PA President remained in office.) It will be recalled that the appellant came to Australia in May 2001, some six months after the October 2000 election.

33 Another complaint made by the appellant was that in the period between the October 2000 election and his departure from Australia in May 2001, his house was vandalised; he was told by his brother and friends that people in two jeeps had come looking for him to kill him unless he left the UNP; and that he had, in consequence, been in hiding during that period.

REASONING OF THE TRIBUNAL

34 Essential to the Tribunal's reasoning was its non-acceptance of the appellant's evidence that he was an `organiser for the [UNP] in the Senkadagala electorate' and `in a position of responsibility as an organiser in the UNP' (at page 13 of its Reasons). The reason was that the appellant was confused as to three matters:

* the appellant was `emphatic' that the election in 2000 was for the Provincial Council, whereas in fact it was for the national Parliament;

* the appellant appeared to think that members of the Provincial Council were somehow also members of the national Parliament;

* the appellant said that the UNP had `long won in Senkadagala', but this was `not supported by independent information...that the UNP won the seat from the PA at the April 1999 election'.

35 The Tribunal therefore regarded the appellant as nothing more than a `foot soldier' in the UNP. It did not accept that he had been `targeted' by Lohan or `warned to give up his involvement with the UNP'. The Tribunal did not accept that his house was wrecked or vandalised, or that he was warned to leave the UNP, or, if he went into hiding for the period of some six months from October 2000 until he came to Australia in May 2001, that he did so because of his political involvement with the UNP.

36 The Tribunal proceeded to note that according to independent country information before it:

* violence was common between supporters of rival political parties in Sri Lanka, particularly just before an election, and especially in the Kandy region (according to the information the violence was meted out by UNP supporters against PA supporters as well as by PA supporters against UNP supporters);

* Lohan and a `gang' which he apparently led, was involved in political thuggery and intimidation in the lead up to the October 2000 election;

* although, according to some independent country information, it is arguable that the police show an inclination to favour the political party in power:

- political leaders have campaigned against political violence;

- the police response to political violence may have been uneven;

- the police in fact arrested Lohan, although he may have `rampaged' for some time before his arrest.

37 The Tribunal concluded that, although the appellant may have been abused, had stones thrown at him, and, in October 2000, been assaulted in the mêlée outside the police station, there was no more than a remote chance that he would, if he returned to Sri Lanka, face harm sufficiently serious to amount to persecution. In essence the Tribunal's reason was that it did not accept that the appellant was in a position different from that occupied by the general body of UNP or PA supporters who participated actively in the political process in Sri Lanka.

38 In support of its conclusion, the Tribunal noted these matters:

(1) Its view that the appellant's involvement in the UNP was very limited and there was no suggestion that he would, upon returning to Sri Lanka, have a more prominent role than he had had in the past;

(2) The abuse, stone throwing and assault outside the police station appeared to be conduct of a kind which commonly occurred between active supporters of rival political parties in Sri Lanka, at least in the lead up to elections; and

(3) The measure of protection available from the police.

GROUNDS OF APPEAL AND OUR REASONING ON THE APPEAL

39 The appellant relies on two grounds as establishing jurisdictional error by the Tribunal:

(1) that the Tribunal made findings adverse to the appellant's credit which it was not at liberty to make on the logically probative material before it; and

(2) that the Tribunal misconstrued and misapplied the terms of s 91R of the Act in relation to the Convention concept of `persecution'.

40 The appellant's grounds of appeal are that the learned Chief Federal Magistrate erred by failing to accept that the Tribunal had erred in these two respects.

41 We are prepared to assume that the two grounds of appeal, if established, would constitute jurisdictional error: cf SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121; (2003) 199 ALR 281 at [20].

42 The two grounds of appeal call for no more than a consideration of the Tribunal's reasons for decision. In particular, they do not call for a consideration of such evidence as the transcript of the hearing before the Tribunal or affidavit evidence of what transpired before the Tribunal.

43 We have come to a clear view that the appeal fails and that we can dispose of both grounds briefly.

44 In these circumstances, we think no useful purpose would be served by remitting the matter to the FMCA.

45 As to the first ground of appeal, we think it was open to the Tribunal to make findings adverse to the appellant's credit. Indeed, counsel for the appellant did not make submissions at to why the three matters to which the Tribunal referred (see [34] above) should not, logically, have told against his credit. Whether they would have persuaded us to take the same adverse view of the appellant's claims is not the question. There is no substance in the first ground.

46 As to the second ground, the Tribunal referred to s 91R of the Act in the following terms very early in its reasons (at 3):

`Under s 91R(1) of the Act persecution must involve "serious harm" to the applicant, and systematic and discriminatory conduct. The expression "serious harm" includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant's capacity to subsist: s 91R(2) of the Act.'

47 Later, under the heading `Findings and Reasons', the Tribunal used the expression `serious harm' three times and `serious' once, within the one paragraph in which it addressed the question whether the experience the appellant would be likely to have if he were to return to Sri Lanka would amount to `persecution'. Clearly, the Tribunal had s 91R in mind.

48 Of course a ritual incantation of the statutory formula will not save a decision, but there is no reason to think that this was the process in which the Tribunal was engaged.

49 We think that the Tribunal was entitled:

* to take the view that the abuse (apparently verbal), stone throwing and assault in a mêlée at or following a political rally, in the Kandy region in Sri Lanka, did not amount to `serious harm' for the purposes of the Convention notion of `persecution'; and

* not to be satisfied that the appellant would suffer more serious harm than that if he were to return to Sri Lanka.

50 Mr Hamilton put a particular submission on the hearing with which we now deal. Accepting the Tribunal's finding that the appellant was not prominent in the UNP, and that Lohan and his gang did not single out the appellant, Mr Hamilton submitted that nonetheless the appellant might now be recognised by them as a UNP supporter whom they in fact assaulted in 2000. Mr Hamilton submitted that, remembering the appellant, they may wish to `teach him a lesson' if he should dare to resume participating in political rallies.

51 This submission was not made in the `Applicant's Statement of Fact and Law' that was before the Chief Federal Magistrate. Nor is it raised in the present notice of appeal or in the appellant's written submissions on the appeal. In any event, in our view the Tribunal did not commit jurisdictional error by failing to address what amounts to a purely speculative possibility raised by counsel.

CONCLUSION

52 For the above reasons, the appeal should be dismissed with costs.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 18 November 2003

Counsel for the appellant:	Mr J R Hamilton
Solicitor for the appellant:	Di Mauro Solicitors
Counsel for the respondent:	Mr G Gilbert
Solicitor for the respondent:	Blake Dawson Waldron
Date of hearing:	6 November 2003
Date of judgment:	21 November 2003