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WZANO v Minister for Immigration & Anor [2009] FMCA 1209 (18 December 2009)

Last Updated: 21 December 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZANO v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Refugee Review Tribunal – protection visa application – judicial review – particulars of information Tribunal considers the reason, or part of the reason, for affirming the decision under review – whether proper particulars provided – whether jurisdictional error.


Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Ors [2004] 140 FCR 572; [2004] FCAFC 264
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
MZXBQ v Minister for Immigration and Citizenship & Anor (2008) 166 FCR 483; [2008] FCA 319
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
SZIHY v Minister for Immigration and Anor [2006] FMCA 1599
SZIHY v Minister for Immigration and Citizenship [2007] FCA 281
SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706
SZJXC v Minister for Immigration and Citizenship [2007] FCA 1117
SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264
SZMTP v Minister for Immigration and Citizenship [2009] FMCA 121
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; [2004] FCAFC 82
VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178
Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212; [2001] FCA 56

Applicant:
WZANO

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
PEG 40 of 2009

Judgment of:
Lucev FM

Hearing date:
23 July 2009

Date of Last Submission:
23 July 2009

Delivered at:
Perth

Delivered on:
18 December 2009

REPRESENTATION

Counsel for the Applicant:
Mr G H Solomon

Solicitors for the Applicant:
Terry H Solomon Lawyers

Counsel for the Respondents:
Mr D Estrin

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) The application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 40 of 2009

WZANO

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. This is an application seeking review under s.476 of the Migration Act 1958 (Cth)[1] of a decision[2] of the Refugee Review Tribunal[3] affirming a decision of a delegate[4] of the first respondent[5] to refuse to grant the applicant a Class XA (Protection) Visa.[6]

Background

  1. The applicant is a citizen of Sri Lanka who claims Sinhalese ethnicity.[7]
  2. The applicant arrived in Australia on 27 July 2006 on a student visa. On 3 April 2008 the applicant’s student visa was cancelled under s.116 of the Migration Act because of poor academic progress.[8]

Application for Protection Visa

  1. On 10 July 2008 the applicant applied for a Protection Visa.[9]
  2. In his Protection Visa application the applicant claimed that:
    1. he was a Sri Lankan Sinhalese who fled Sri Lanka “in fear of persecution”;[10]
    2. he was born and grew up in Weeraketiya, the hometown of current Sri Lankan President Rajapakse of the United People Freedom Alliance,[11] but is himself a supporter of the United National Party;[12]
    1. he came from a family of prominent UNP supporters and his father had engaged in high-level talks with various UNP leaders in the past;[13]
    1. his family were branded supporters of Liberation Tigers of Tamil Eelan[14] by the current President, and his brother the current Defense Secretary, and they “became unpopular in the area due to the ever growing power and authority of the present President and his brother”;[15]
    2. his involvement in the UNP was for the purpose of achieving a political solution with the LTTE;[16]
    3. he had been assaulted by UPFA thugs recruited by the President and his brother, the Defense Secretary, for canvassing for a negotiated settlement with the LTTE, and was branded as an LTTE collaborator;[17]
    4. he had been targeted and assaulted by UPFA “hooligans and thugs”, and consequently hospitalised, during the 2003 election campaign, and his father had been threatened with death for attempting to convince people to vote for the UNP;[18]
    5. he was ordered to stay away from approaching villages to canvass against the UPFA in the 2003 election campaign;[19]
    6. after the election he was assaulted (together with his sister);[20]
    7. he moved to Colombo (where he felt safe) after the 2003 general election and began activities to form a UNP Youth group which arranged meetings with Tamil party members;[21]
    8. he was advised by a Member of Parliament not to travel alone to various areas (presumably outside Colombo), and he feared to travel alone and always travelled with friends;[22]
    1. he was:
      1. abducted in 2005 by unknown men and kept captive for nearly 4 months, during which time he was questioned concerning Tamil LTTE members who had been present at meetings, and what was being planned at those meetings; and
      2. eventually taken by Sri Lankan army officers to Kalutara prison, where he was told he would be killed if he was found again in Colombo, or any part of Sri Lanka, and following which he was released, all ostensibly under the orders of the President’s brother, the Defense Secretary;[23]
    1. he subsequently arrived in Australia, and was not able to concentrate on his studies, because he wanted to enter into politics (in Sri Lanka), and because his parents became “very weak” and had to be hospitalised;[24]
    2. he visited Sri Lanka in 2007 because his parents were ill, but he was advised to leave the country as soon as possible because criminals were planning to abduct him and his father;[25]
    3. after he arrived back in Australia he was told that unknown men had made enquiries of his aunt as to his whereabouts, and that his aunt told these men he had left the country, but that they said to her that he should be produced at the Kalutara prison on his return;[26]
    4. his father was abducted in June 2008, after the applicant’s return to Australia, and released only upon payment of a ransom;[27] and
    5. he would be forcibly recruited to serve in the army if he returned to Sri Lanka.[28]

Delegate’s Decision

  1. A delegate of the Minister interviewed the applicant on 11 August 2008. During that interview the applicant expanded on his claims.
  2. The Delegate’s Decision on 25 August 2008 refused to grant the applicant a Protection Visa,[29] finding that:
    1. the applicant’s family may have been well known in their locality for their support of the UNP, but the activities of the applicant essentially were canvassing, distributing posters and assisting with the organisation of meetings and election campaigns and were at a low level;[30]
    2. the applicant’s statements were generalised and lacking in a level of detail which would support his claims to an alleged political profile as an active member of the UNP and a youth group leader;[31]
    1. in relation to the applicant’s alleged detention in 2005 there were significant discrepancies in his written and oral accounts as to dates, length of alleged detention and the number of people apprehended and detained;[32]
    1. the incidents in which he had been involved appeared to be more directed at harm to him as an individual than politically motivated attacks;[33]
    2. the applicant’s profile as an ethnic Sinhalese, supporter of the UNP from a low risk area of Southern Province in Sri Lanka did not fit the category of persons identified by the UNHCR to be at risk of abduction, extra judicial killing, arrest, detention and torture, either by non-State or State authorities, and the applicant’s profile and activities were such that it was highly improbable that they would attract adverse attention by the current Sri Lankan Government, particularly in view of the fact that the applicant returned to Sri Lanka in January 2007 and departed in February 2007 without incident;[34]
    3. there was no apparent reason why in any event, the applicant could not relocate to another part of Sri Lanka;[35]
    4. the applicant would not be specifically targeted by other State or non-State agencies in his native Southern Province, where ethnic Sinhalese are in a majority;[36]
    5. the applicant arrived in Australia in July 2006 but did not apply for a Protection Visain Australia until July 2008, and then not until his student visa was cancelled in April 2008;[37]
    6. the applicant’s delay in applying for a Protection Visa and his travel to and from Sri Lanka were inconsistent with his claim to have a fear of returning to Sri Lanka and were further evidence that the applicant did not genuinely fear persecution in Sri Lanka;[38]
    7. country information indicates that military service in Sri Lanka is voluntary and conscription does not exist;[39] and
    8. there was no credible evidence to suggest that the applicant would be subjected to persecution for a Convention reason in Sri Lanka and he did not satisfy the delegate his overall claims were credible.[40]
  3. On 19 September 2008, the applicant applied to the Tribunal for review of the Delegate’s Decision.[41]

Tribunal Hearing

  1. The applicant attended a Tribunal hearing on 11 November 2008.[42] The applicant provided to the Tribunal various newspaper and online blog materials in relation to the political situation in Sri Lanka.[43]

Section 424A Notice Letter

  1. On 24 November 2008, the Tribunal sent the applicant a letter pursuant to s.424A of the Migration Act,[44] inviting the applicant to comment on information the Tribunal considered relevant, because it put into doubt the applicant’s credibility. The Tribunal raised various concerns about certain inconsistencies in the applicant’s evidence at the Departmental interview and the Tribunal Hearing, including the following:
    1. that the Tribunal may find discrepancies between evidence given by the applicant at the Departmental interview and to the Tribunal concerning when he became actively involved in working for the UNP, and that the Tribunal may find it highly implausible that he would not have raised his activities during 2000-2001 at the Departmental interview given that he was asked when he became actively involved in the UNP;[45]
    2. that the applicant’s evidence given at the Departmental interview of his activities in the youth organisation of the UNP in Colombo was “very vague” and “often confused”, and “not consistent” with claims to have been a person with a significant role in the youth organisation of the UNP and who was consequently targeted adversely by supporters of the UPFA;[46]
    1. that the Tribunal may find that the applicant had not given a consistent account of activities related to the UNP or its youth arm in Colombo, and that the applicant did not have any role in the development of the youth organisation of the UNP in Colombo, or in organising and attending conferences or meetings relating to the activities of the UNP and/or its youth arm, including issues associated with the LTTE at a level that would have resulted in his being adversely targeted by political opponents;[47]
    1. that the Tribunal might find that there were discrepancies in the applicant’s evidence regarding the number of conferences that the applicant claimed he was involved in in Colombo, and that this was a further indication that he was not involved in organising those conferences, and not involved at any level likely to have seen him adversely targeted by the supporters of the UPFA;[48]
    2. that the Tribunal might find it highly implausible that he did not recollect when he was beaten during the 2004 election campaign given that he said he had to spend three to four days in hospital as a result, and that the Tribunal might conclude that he did not experience the harm claimed;[49]
    3. that there were discrepancies in the applicant’s evidence concerning his alleged abduction in late 2005, and that it was implausible that he would not have given a more consistent account of the circumstances of such a significant event, including the circumstances of when and where and for how long the relevant events took place or occurred, and that as a consequence the Tribunal might conclude that he was not abducted as alleged;[50] and
    4. that the Tribunal might conclude when considering information about his political involvement in Sri Lanka as a supporter of the UNP that he was not involved at a level that gave him such a profile as to attract adverse attention of political opponents including supporters of the UPFA or people acting on their behalf, and that he was not adversely targeted by political opponents on an ongoing basis.[51]
  2. In the s.424A Notice Letter sent to the applicant the Tribunal wrote as follows, concerning information relating to the cancellation of the applicant’s student visa:
  3. The applicant’s solicitor responded to the s.424A Notice Letter on 17 December 2008.[56] Essentially, the response was a shortened reiteration of various of the claims already made by the applicant, but with respect to the cancelation of his student visa the solicitor said as follows:

The Tribunal Decision

Tribunal Decision - overview

  1. The Tribunal Decision:
    1. identified the background to the application for merits review, and set out the relevant statutory framework for the consideration of applications for protection visas;[58]
    2. provided a detailed summary of the claims made by the applicant in:
      1. the Protection Visa application;[59]
      2. the Departmental interview;[60]
      3. the review application;[61] and
      4. the oral evidence given by the applicant at the Tribunal Hearing;[62]
    1. referred to submissions made by the applicant’s solicitor prior to and after the Tribunal Hearing;[63]
    1. referred to independent country evidence available to the Tribunal in relation to the political situation and election-related violence in Sri Lanka in the last few years;[64]
    2. discussed the Tribunal’s examination of the Departmental interview record and found that the applicant had a reasonable opportunity to give oral evidence at the Departmental interview;[65]
    3. held that it could take into account the evidence which the applicant gave at the Departmental interview on 11 August 2008;[66] and
    4. set out its findings and reasons, central to which was an assessment of the applicant’s credibility.[67]
  2. In particular, in relation to independent country evidence, the Tribunal noted the following:

Tribunal’s findings and reasons

  1. The critical considerations by the Tribunal concerning the applicant’s credibility were:
    1. that there were discrepancies between the evidence the applicant gave at the Departmental interview and to the Tribunal regarding when he became actively involved in working for the UNP;[70]
    2. his failure to raise his alleged earlier active involvement with the UNP during 2000/2001 at the Departmental interview concerning his Protection Visa application;[71]
    1. his inability to recall when, and in particular in which of the months between September and December 2003 (inclusive) alleged beatings which resulted in the applicant’s hospitalisation during the 2004 election campaign took place;[72]
    1. that his responses at the Departmental interview concerning his Protection Visa application were too vague for someone who was actively involved in the youth wing of the UNP, and that his confused account was a further indication that he was not involved with the UNP at the level claimed;[73]
    2. his lack of awareness of the formal membership provisions of the UNP, and his evasive and illogical responses when questioned about the formal membership rules of the UNP;[74]
    3. his internally inconsistent evidence about:
      1. the nature and magnitude of the conferences he claimed to have organised in the Colombo area;[75] and
      2. the circumstances of his abduction, including where it took place, how long he was detained for, and where certain questioning took place;[76]
    4. that he did not mention the problems he faced in Sri Lanka at the time he was presented with an opportunity to make comments in response to the Department’s intention to cancel his student visa, which the Tribunal found was “highly adverse”[77] to his claims of having suffered, or been threatened with, harm in Sri Lanka as a result of his activities for the UNP;[78]
    5. the significant delay of two years in lodging a Protection Visa application;[79] and
    6. that “because he had not experienced any problems or harm in Sri Lanka”, he had returned to Sri Lanka in 2007 to visit his parents.[80]
  2. The Tribunal found that, cumulatively, a number of striking inconsistencies in the applicant’s account led to a finding that he was not a witness of truth:
  3. Based on the above considerations, the Tribunal was not positively satisfied that the applicant had experienced serious harm amounting to persecution in the past in Sri Lanka, on account of his political opinion.[82]
  4. The Tribunal accepted that the applicant may continue to support the UNP if he returned to Sri Lanka, and may continue to provide low level support to the party during future election campaigns. The Tribunal did not accept, however, that there was a real chance that such general involvement with the UNP would result in the applicant being adversely targeted and that he would experience serious harm.[83]
  5. It followed, in the Tribunal’s opinion, that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention. The Tribunal therefore refused the grant of a Protection Visa under s.65 of the Migration Act.[84]
  6. On 27 February 2009 the Tribunal affirmed the Delegate’s Decision.[85]

Grounds of amended application

  1. On 3 April 2009 the Applicant filed an application for judicial review of the Tribunal Decision. At the hearing of this application leave to amend the grounds of the application was granted. Ground one of the application was amended to allege that the Tribunal committed jurisdictional error by:
    1. failing to notify and invite the applicant pursuant to s.424A of the Migration Act to comment on information which would be the reason or a part of the reason, for affirming the decision that was under review;[86] and
    2. the mistaken reliance on information provided by the applicant to the Department orally in 2006 for the purpose of obtaining a student visa contrary to section 424A(3)(ba) of the Migration Act.[87]
  2. Grounds 2 and 3 of the grounds of application were abandoned at hearing.

Legislation

  1. Section 424A of the Migration Act provides as follows:

Information and invitation given in writing by Tribunal

(1) Subject to subsections (2A) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c) that is non-disclosable information.

Jurisdictional error

  1. A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[88]
  2. An error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
    1. identifies a wrong issue;
    2. asks the wrong question;
    1. ignores relevant material; or
    1. relies on irrelevant material,

in such a way that the Tribunal's exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[89]

Ground 1(a)

Applicant’s submissions

  1. The applicant submits that:
    1. when the Tribunal sent the s.424A Notice Letter it failed to invite the applicant to comment on information which would be the reason, or a part of the reason, for affirming the decision under review, being information from a named source[90] that there was “negligible” political violence in Sri Lanka at the times the applicant submits that he suffered party political violence from late 2003, leading up to the 2004 election campaign;
    2. the information contained in the Dayan Jayatilleka seminar[91] relied on in the Tribunal Decision engaged s.424A because it tended to suggest that:
      1. the applicant could not possibly have had a convention fear of “serious harm”; or
      2. there were so few instances of party political violence against the Sinhalese in Sri Lanka following the 2004 elections that one may infer that the odds of the applicant experiencing such were “negligible”;
    1. he was not notified in the s.424A Notice Letter of the Seminar Information and therefore did not adduce any further evidence to counter it;
    1. the Seminar Information is dispositive, and goes to the heart of the Protection Visa claim, and as such is of the type of information identified in MZXBQ v Minister for Immigration and Citizenship & Anor;[92]
    2. the Seminar Information is outside of the statutory exceptions to s.424A provided in ss.424A(1) and (3)(a) of the Migration Act, primarily due to the fact that this evidence was from an individual, whom the applicant alleges is partisan, unobjective and incorrect, as well as being in conflict with other recognised country information sources;
    3. the Seminar Information was not before the delegate; and
    4. the Seminar Information was not referenced during the Tribunal Hearing, and nor were questions asked of it, it being first referred to in the Tribunal Decision, and as such is distinguishable from the facts of SZMTP v Minister for Immigration and Citizenship.[93]

Minister’s submissions

  1. The Minister submitted that:
    1. the Seminar Information was not specifically about the applicant himself, but like the other 14 sources of information referred to and relied upon by the Tribunal,[94] it was independent evidence;
    2. regardless of whether the Tribunal considered the Seminar Information to be “the reason, or a part of the reason for affirming the decision under review”, s.424A of the Migration Act has no application, because this information is within the exception in s.424A(3)(a), being information not specifically about the applicant or another person, but about a class of persons of which the applicant or another person is a member;[95]
    1. in any event, the Tribunal referred to independent evidence about the political situation in Sri Lanka and discussed this with the applicant at the hearing on 11 November 2008;[96] and
    1. the applicant’s ground 1(a) cannot therefore be made out.

Consideration

  1. For the applicant to be successful on this ground of review, the Court must be satisfied of the following:
    1. that the Seminar Information was at least a part of the reason for the Tribunal affirming the Delegate’s decision; and
    2. that the Seminar Information did not fall under an exclusion category in s.424A(3) of the Migration Act.
  2. Section 424A(3)(a) imposes one test and does not contain two disjunctive elements.[97] The exclusion provision refers to information that is not specifically about an applicant or another person; rather, it is about a class of persons of which an applicant or the other person is a member.
  3. In SZIHY it was held that:
    1. the information in question concerning the ease with which false documentation could be obtained in China, which was from an internal seminar, was information from an external source, albeit not information in the public domain; and
    2. there is no difficulty with the Tribunal taking such information into account, as the Tribunal has the power to get any information that it considers relevant under s.424 of the Migration Act.[98]
  4. SZIHY was affirmed in SZIHY v Minister for Immigration and Citizenship[99] where the Federal Court observed as follows:
  5. Against the above line of authority, MZXBQ, which was relied on by the applicant, does not assist. MZXBQ was concerned with whether s.424A was enlivened, and whether the exclusion in s.424A(3)(b) applied. Section 424A(3)(a) did not arise for consideration in MZXBQ, and MZXBQ is therefore distinguishable.
  6. The applicant’s contention that the Seminar Information was dispositive is not, in any event, made out. By the time the Tribunal came to consider the effect of the Seminar Information in its “Findings and Reasons”, it did not refer to the Seminar Information expressly but to the contents of that information, as part of taking into account the independent evidence overall, and in relation to the rejection of a claim that the applicant would be adversely targeted at the behest of the President or his brother, the Defense Secretary.[101] Importantly, by the time the Tribunal came to make that finding, it had already found, on the basis of the applicant’s credibility, that the applicant’s family support for the UNP had not created enmities with the President or the Defense Secretary.[102]
  7. Because the Seminar Information was not dispositive of the review application it is strictly unnecessary to address the applicant’s assertions that the Seminar Information is:
    1. “partisan, unobjective and incorrect”; and
    2. “in conflict with other recognised country information sources”.[103]
  8. The assertions can however be disposed of briefly:
    1. the former assertions are bare assertions, made in the applicant’s written submissions, unsupported by any evidence, in circumstances where this Court’s Orders of 24 April 2009 allowed for the applicant to file affidavits to be relied upon at hearing;
    2. furthermore, there is nothing on the face of the record which is capable of sustaining the former assertions; and
    1. the latter assertions might or might not be true, but it is for the Tribunal to consider and weigh conflicting country information, as it did in this case. There is nothing that the Tribunal did in relation to its assessment of conflicting country information which warrants interference by this Court on an application for judicial review.
  9. SZMTP, a case relied on by the applicant, does not assist. Section 424A of the Migration Act was neither at issue, nor even mentioned in SZMTP.
  10. The Court considers that the Seminar Information falls within the exclusion in s.424A(3)(a) of the Migration Act. The Seminar Information was not information specifically about the applicant or another person. Rather, it was information about the occurrence and nature of violence generally in Sri Lanka in both a political and criminal context, and how that violence may affect the lives of a particular class of persons of which the applicant claims membership, namely ethnic Sinhalese in Sri Lanka.
  11. The Court is therefore satisfied that the s.424A(3)(a) exclusion applies, and, therefore ground 1(a) of the application has not been made out.

Ground 1(b)

Applicant’s submissions

  1. The applicant submits that there was no s.424A Notice Letter regarding the mistaken reliance by the Tribunal and delegate on information provided by the applicant to the Department orally in 2006 for the purpose of obtaining a student visa (relating to the time period of 2000-2001), which the applicant submits is contrary to s.424A(3)(ba) of the Migration Act.

Minister’s submissions

  1. The Minister submitted that:
    1. it is correct that the information which the applicant gave to the delegate regarding his visa cancellation does not fall within one of the exceptions in sub-s.424A(3), because it is not information “that the applicant gave during the process that led to the decision that is under review”;
    2. section 424A of the Migration Act was thus engaged, because none of the exceptions in sub-s.424A(3) applied;
    1. the Tribunal duly complied and sent the applicant the s.424A Notice Letter, inviting the applicant to comment on issues the Tribunal considered would, subject to any comments or responses, be the reason, or part of the reason for affirming the decision under review;
    1. the Tribunal specifically drew the applicant’s attention to its concerns in relation to his failure to raise his problems in Sri Lanka at the time of his student visa cancellation;[104] and
    2. the Tribunal therefore complied with s.424A of the Migration Act and, having done so, was entitled to rely on the information and make its findings accordingly.
  2. The Minister therefore submits that ground 1(b) cannot be made out.

Consideration

  1. It is not apparent to the Court that there was “mistaken reliance” by the Tribunal “on information provided by the applicant to the Department orally in 2006 for the purpose of obtaining a student visa (relating to the time period 2000-2001)”. What the Tribunal took into account was evidence given by the applicant at the Departmental interview in relation to his Protection Visa application on 11 August 2008,[105] and his direct evidence to the Tribunal. Ground 1(b) therefore fails at the outset in the Court’s view, as it is based on a false factual premise.
  2. The Court nevertheless deals with this ground on the basis of the information that the Minister understood it to be referring to. On that basis, the applicant’s contention that there was no s.424A Notice Letter concerning the subject matter of this ground is wrong. As the Minister correctly submits, the applicant was on notice that the Tribunal was considering information relating to the cancellation of the applicant’s student visa in 2008, including:
    1. matters raised at the Departmental interview on 11 August 2008 concerning his studies, UNP activities and travel to and from Australia and Sri Lanka in 2006 and 2007; and
    2. evidence given at the Tribunal hearing concerning being bothered, when he commenced his studies, “because of the problems experienced in the past on account of your political activities” and that these were matters relevant to whether the events alleged by the applicant occurred at all, and to the applicant’s credibility.[106]
  3. As indicated above, the applicant responded to the s.424A Notice Letter, and in particular to the issues concerning the cancellation of his student visa.[107] The applicant’s response that:
    1. he did not claim that he had a fear of persecution because:
      1. he considered it “personal”; and
      2. he had a fear that the Department would not deal with it properly; and
    2. if the Department had questioned him and asked him to explain in detail, he could have given the detail at that time,

was found by the Tribunal to lack credibility.

  1. Credibility is a matter for the Tribunal, and the Tribunal alone,[108] but it is easy to see why the Tribunal might have considered credibility to be in issue, when the applicant:
    1. failed to raise what he now says was a then existing well founded fear of persecution; and
    2. gave answers about the non-provision and possible provision of detailed information by him which were contradictory.
  2. Ground 1(b) therefore fails.

Conclusions and Orders

  1. Grounds 1(a) and 1(b) of the application have not been made out.
  2. All of the Tribunal's findings were open to it on the information before it. The Tribunal approached its task correctly, asked itself the right questions, had regard to all relevant material and did not have regard to irrelevant material. This very thorough Tribunal Decision is not tainted by jurisdictional error. The Tribunal Decision is therefore a privative clause decision pursuant to s.474 of the Migration Act and is not susceptible to judicial review under s.476 of the Migration Act.
  3. The application must be dismissed. There will be an order accordingly.
  4. The Court will hear the parties as to costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Lucev FM


Associate: S. Gough


Date: 18 December 2009

[1] “Migration Act”.
[2] “Tribunal Decision”.
[3] “Tribunal”.
[4] “Delegate’s Decision”.
[5] “Minister”.
[6] “Protection Visa”.
[7] CB 1.
[8] CB 82.
[9] CB 1.
[10] CB 28.
[11] “UPFA”.
[12] “UNP”; CB 28.
[13] CB 28.
[14] “LTTE”.
[15] CB 28.
[16] CB 29.
[17] CB 29.
[18] CB 29.
[19] CB 29.
[20] CB 29.
[21] CB 29.
[22] CB 29-30.
[23] CB 30.
[24] CB 30.
[25] CB 30-31.
[26] CB 31.
[27] CB 31.
[28] CB 31.
[29] CB 78-95.
[30] CB 91.
[31] CB 91.
[32] CB 91.
[33] CB 91.
[34] CB 92.
[35] CB 92.
[36] CB 92.
[37] CB 92.
[38] CB 93.
[39] CB 93.
[40] CB 93.
[41] CB 97-100.
[42] “Tribunal Hearing”.
[43] CB 45-61.
[44] CB 135-143; “s.424A Notice Letter”.
[45] CB 139.
[46] CB 139.
[47] CB 139-140.
[48] CB 140.
[49] CB 140.
[50] CB 140-141.
[51] CB 140-141.
[52] CB 141.
[53] Above emphasis added.
[54] This emphasis is in the original.
[55] CB 142.
[56] Letter from applicant’s solicitor to Tribunal, CB 144-145.
[57] CB 145. Transcribed without amendment.
[58] CB 149-151.
[59] CB 151-152.
[60] CB 153-156.
[61] CB 156-157.
[62] CB 157-163.
[63] CB156 and 164.
[64] CB 164-172.
[65] CB 172-173.
[66] CB 173.
[67] CB 172-181.
[68] CB 161.
[69] CB 166-167.
[70] CB 173-174.
[71] CB 173.
[72] CB 174.
[73] CB 174-175.
[74] CB 175.
[75] CB 176.
[76] CB 176-177.
[77] CB 178.
[78] CB 177-178.
[79] CB 178.
[80] CB 179.
[81] CB 179.
[82] CB 181.
[83] CB 181.
[84] CB 181.
[85] CB 148-181.
[86] “Ground 1(a)”.
[87] “Ground 1(b)”.
[88] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[89] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
[90] Mr Dayan Jayatilleka, CB 166.
[91] “Seminar Information”.
[92] (2008) 166 FCR 483; [2008] FCA 319 (“MZXBQ”).
[93] [2009] FMCA 121 (“SZMTP”).
[94] CB 164-172 (at paras.60-75 of the Tribunal Decision).
[95] SZJXC v Minister for Immigration and Citizenship [2007] FCA 1117 at para.13 per Heerey J.
[96] CB 161.
[97] VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82; (2004) 80 ALD 559 at 563 per Gyles and Conti JJ; [2004] FCAFC 82 at para.14 per Gyles and Conti JJ; SZIHY v Minister for Immigration and Anor [2006] FMCA 1599 at para.29 per Scarlett FM (“SZIHY”). See also Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others [2004] FCAFC 264; (2004) 140 FCR 572 at 586 per Beaumont J and at 599-600 per Merkel and Hely JJ; [2004] FCAFC 264 at paras.64-67 per Beaumont J and para.138 per Merkel and Hely JJ, and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at para.15 per Black CJ, Sundberg and Bennett JJ.
[98] SZIHY at para.30 per Scarlett FM; Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at 217 per Whitlam, Tamberlin and Sackville JJ; [2001] FCA 56 at para.16 per Whitlam, Tamberlin and Sackville JJ.
[99] [2007] FCA 281 (“SZIHY Appeal”).
[100] SZIHY Appeal at paras.5-7 per Emmett J.
[101] CB 180.
[102] CB 179.
[103] See para.26(e) above.
[104] CB 141.
[105] CB 173.
[106] CB 141-142.
[107] CB 145.
[108] SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706 at para.17 per Jacobson J; SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 at para.56 per Emmett FM, citing Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J.

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