FEDERAL COURT OF AUSTRALIA
V120/00A v Minister for Immigration & Multicultural Affairs [2002] FCA 264
MIGRATION – application for a protection visa – jurisdictional error – whether Refugee Review Tribunal’s reasons disclosed reviewable error – deceased made specific claim under the Convention – family members’ claim dependent on deceased’s claim – effect of deceased’s death upon application for review by the Refugee Review Tribunal
Migration Act 1958 (Cth), ss 415, 417, 430, 476
Migration Regulations 1994, Schedule 1, Item 1126, Schedule 2, cl 866.21
Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 cited
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied
Craig v State of South Australia (1995) 184 CLR 163 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
Kumar v Minister for Immigration and Multicultural Affairs [1999] FCA 156 cited
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 applied
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 followed
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 cited
Abebe v Commonwealth (1999) 197 CLR 510 cited
Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 applied
Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385 followed
Kalejs v Minister for Justice and Customs [2001] FCA 1769 referred
Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326 approved
Minister for Immigration & Multicultural Affairs v A (1999) 91 FCR 435 cited
Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495 cited
Minister for Immigration & Multicultural Affairs v Li (2000) 178 ALR 523 cited
Sevim v Minister for Immigration & Multicultural Affairs [2001] FCA 1597 cited
V120/00A & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR
V 120 of 2000
KENNY J
15 MARCH 2002
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 120 OF 2000 |
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BETWEEN: |
V120/00A First Applicant
V120/00B Second Applicant
V120/00C Third Applicant
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AND: |
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent
BRENDON F. KISSANE constituting THE REFUGEE REVIEW TRIBUNAL Second Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The application for writs of mandamus, prohibition and certiorari and an injunction in so far as it is based on the grounds in the paragraph numbered 3 of the order of Hayne J made in the High Court of Australia on 23 November 1999 be dismissed.
2. (a) The names of the applicants and any other matter reasonably capable of identifying them be kept confidential and not be disclosed other than to the parties, their legal advisers, Court staff, the Refugee Review Tribunal and officers of the Department of Immigration and Multicultural and Indigenous Affairs.
(b) This application proceed under the name of V120/00A & Ors v Minister for Immigration and Multicultural Affairs and the cover of the file be endorsed with the terms of this order 2.
(c) No person, other than a party to these proceedings or their legal advisers, Court staff, the Refugee Review Tribunal and officers of the Department of Immigration and Multicultural and Indigenous Affairs, be given access to any document filed in these proceedings without leave from a judge.
3. There be no order as to the costs of the part of the matter that was remitted to this Court.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 120 OF 2000 |
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
procedural history
1 On 23 November 1999, pursuant to s 44(2A) of the Judiciary Act 1903 (Cth), the High Court of Australia remitted to this Court that part of matter No M 59 of 1999 which was pending in the High Court:
in which the applicants seek a writ of mandamus, prohibition or certiorari or an injunction against an officer of the Commonwealth on the grounds that:
(a) the Refugee Review Tribunal (‘the Tribunal’) failed to observe the procedures that were required by the Migration Act 1958 (Cth) (‘the Act’) or the regulations under the Act to be observed by the Tribunal in connection with the making of the decision challenged in these proceedings;
(b) the Tribunal did not have jurisdiction to make the decision it did;
(c) the Tribunal’s decision was not authorised by the Act or the regulations under the Act;
(d) the Tribunal’s decision involved an error of law, being an error involving an incorrect application of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.
2 The applicants are citizens of Sri Lanka. After entering Australia lawfully, the first applicant’s husband (“the deceased”) lodged an application for protection visas for himself and his family, who included the applicants in these proceedings. A delegate of the first respondent refused the application (“the delegate’s decision”) on 22 May 1997. On 28 May 1997, the deceased applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision. The deceased died in Australia on 14 January 1998.
3 The Tribunal held a hearing on 22 January 1998. The applicants were notified, by letter dated 5 May 1998, of the Tribunal’s decision to affirm the delegate’s decision.
4 The applicants did not apply for review by this Court under s 476 of the Migration Act 1958 (Cth) (“the Act”). Instead, they applied, pursuant to s 417(1) of the Act, for the Minister to substitute for the Tribunal’s decision a decision that was more favourable to them. This power may only be exercised by the Minister personally: see s 417(3). By letter dated 14 December 1998, the applicants were advised that the Minister had “decided not to consider exercising his power in this case”.
5 On 18 May 1999, the applicants commenced proceeding M 59 of 1999 in the High Court, seeking writs of prohibition, certiorari and mandamus, and an injunction against the Minister and the second respondent. The draft order filed at the time sought relief in relation to the s 417 decision, and an extension of time in which to make application in relation to the Tribunal’s decision.
6 On 11 October 1999, a Justice of the High Court heard the matter, along with thirty-one similar applications. The Court directed that, before 12 November 1999, the applicants file and serve a summary of argument setting out the grounds on which any decision was challenged, the remedies sought, the reasons applicable for any enlargement of time, and whether the matter should be remitted to any and which court.
7 On 15 November 1999, the applicants’ solicitors filed summaries of argument in a number of matters. These documents appear on the Court file in the present case. At a further hearing on 22 November 1999, the present applicants accepted that one of these summaries would apply to their case. The summary of argument sought relief in respect of the Minister’s decision under s 417, and challenged the Tribunal’s decision to affirm the delegate’s decision.
8 On 23 November 1999, a Justice of the High Court granted an order nisi. Amongst the orders made that day was an order in the terms set out in [1] above. There were also orders that:
Further proceedings in the part of the matter that is remitted to the Federal Court of Australia be as directed by that Court.
Costs of the part of the matter that is remitted to the Federal Court of Australia (including the costs of the application to the date of this order) be reserved to that Court.
The Deputy Registrar of this Court forward to the proper officer of that Court photocopies of all documents filed in this Court.
9 The decision the subject of review in the proceeding in this Court is the Tribunal’s decision of 4 May 1998 that it is not satisfied that the applicants have a well-founded fear of being persecuted in Sri Lanka by reason of their race or imputed political opinion.
legislative framework
10 The jurisdiction and powers of this Court in this matter are controlled by s 485 of the Act. Subsection 485(3) provides:
If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903 , the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under [Part 8].
The remitted matter relates to a judicially-reviewable decision: see s 475(1) of the Act. The powers of the Court on review are set out in s 481.
11 Section 36 of the Act provides:
(1) There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The Refugees Convention is defined in s 5(1) of the Act as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the Refugees Protocol as a Protocol relating to the Status of Refugees done at New York on 31 January 1967. Protection obligations arise in relation to a person who falls within the definition of “refugee” in the Convention as amended by the Protocol (collectively, “the Convention”).
12 Schedule 2 of the Migration Regulations 1994 makes further provision for protection visas. Clause 866.221 of Schedule 2 provides that it is a criterion for a protection visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. A refugee is defined in Article 1A(2) of the Convention as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country … .
the protection visa application
13 In a written statement made in support of the protection visa application, the deceased stated that he was a Tamil and a Christian, and outlined his primary and secondary education and subsequent career. He and the first applicant married in 1967 in Jaffna. They subsequently moved to Colombo, where a third child was born. Until October 1991, the family rented a house in a suburb of Colombo and their children attended school in Colombo. In his statement, the deceased referred to harassment suffered by him after 1983, and set out in some detail the events that led him to leave Sri Lanka in 1991. The deceased stated that a female relative with LTTE connections had come to live with him and his family in 1991, and that, while living with them, she was involved in the LTTE’s movement in Colombo and was given some money belonging to the LTTE for safekeeping. The deceased stated that he had no knowledge of the girl’s LTTE connections until one day when, after a “couple of boys” visited her at his house, she confessed to holding Rs: 100,000 for the LTTE. The deceased was taken into custody with the girl following a police search of his house, police discovery of the Rs: 100,000 and police questioning. Amongst other things, the deceased was accused of being a LTTE supporter. He claimed that, upon his release from custody, he was subject to constant police surveillance and his house was often raided. Further, there were death threats from the LTTE which was angry about the loss of the Rs: 100,000. As will be seen, there is no need to elaborate upon the deceased’s claim to refugee status in further detail.
14 The deceased’s claims are reiterated and supported by an affidavit sworn on 25 July 1997 by the first applicant, and also by a letter from a migration agent to the Tribunal dated 26 August 1997. The letter was accompanied by a number of documents, including a statutory declaration by the deceased’s brother, and affidavits by the deceased’s brother-in-law and a former work colleague.
15 By letter dated 21 January 1998, the first applicant informed the Tribunal that her husband had died some seven days earlier, and that she “has now taken the responsibility of appearing at the oral hearing of the [Tribunal] with my children, in the absence of the main applicant …”. She wrote further:
[I]f we do return, there would be danger to be faced from the ‘Tigers’ and the security forces. My teenage sons and my young daughter will be in danger of being taken in and ultimately face early death. My fear for their safety is compounded by the complication that my husband faced in Sri Lanka before we left, which would now be held against myself and my children. Alone and helpless, I greatly fear that I will not be able to prevent further persecution against us.
reasons for the tribunal’s decision
16 At the hearing on 22 January 1998, the first applicant, her daughter, her eldest son (the second applicant) and her brother-in-law gave evidence.
17 Under the heading “Findings and Reasons”, the Tribunal stated:
The Tribunal accepts that there was a relative that visited the applicants in Colombo, and this led to this relative and the father being detained by the police. It is also possible that this would have lead to increased surveillance of the applicants. However the husband did not experience any further serious difficulties from the police before his departure in October 1991. As a result the Tribunal accepts that the Applicants have a subjective fear of persecution. The question for the Tribunal however is whether if they now returned to Sri Lanka there is a real chance that they will face persecution.
18 After referring to a number of publications (namely, Research Directorate of the Canadian Immigration and Refugee Board, “Sri Lanka: Internal Flight Alternatives”, December 1992; and UNHCR “Information Note on UNHCR Position concerning Sri Lankan Asylum Seekers in Europe and North America”, Geneva, 16 June 1993), the Tribunal concluded from the latter publication that “the presence of relatives and residence in Colombo are relevant factors that affect the Applicant’s safety”.
19 After setting out some views expressed in other reports (namely, Asia Watch, “Asia Watch: Halt Repatriation of Sri Lankan Tamils”, 11 August 1993; UNHR, LA/HER/1175, October 1993; Department of Foreign Affairs and Trade (“DFAT”), Cable CL 38234, 15 December 1995; UNHCR, “Current Guidelines on Sri Lankan Asylum Seekers”, 4 January 1996; Amnesty International, “Sri Lanka Wavering Commitment to Human Rights”, 14 August 1996 (AI Index: ASA 37/08/96); DFAT, Cable O.CL 345, 11 October 1996; and DFAT, Cable CL 821, 23 March 1998) the Tribunal stated:
This information sets out a number of risk factors in Colombo. If a person is young Tamil and recently arrived from the north or east one is particularly at risk. Other risk factors include not possessing an identity card, not having someone to vouch for you and establish your bona fides, and not speaking Sinhalese. No doubt any link to the LTTE increases the risk of mistreatment.
20 The Tribunal continued:
In this case the assessment is particularly difficult because the Applicants have not lived in Colombo for some years. It is therefore not possible to look at their recent history to gauge the risk.
The Applicant mother does not fit the profile of those at risk. She was not arrested when her now deceased husband was arrested, she returned to Sri Lanka for one month in 1993 without being detained by the authorities and the Tribunal is satisfied that any chance she would face persecution is remote.
The three children also need to be considered as they are all within the age group of those most at risk. They will have to obtain identity cards, register with the police and no doubt settling in will take some time. However none of them have lived in the north since 1979 and the youngest was born in Colombo. The information above indicates that having recently arrived from the north or east is a significant risk factor. All the children’s ties are with Colombo where they lived in Sri Lanka before their departure. They do not have any profile of association with the LTTE and the Tribunal does not accept that there is any real chance they will be imputed with support of the LTTE. They were not detained by the authorities when their father experienced his difficulties. If they are detained by the police they have each other or their mother to vouch for them and can explain where they have been in the recent past. Even accepting that the human rights situation in Colombo has taken a turn for the worse recently the Tribunal is not satisfied that there is any real chance they will suffer persecution on account of their Tamil ethnicity or imputed political profile should they now return.
21 Finally, the Tribunal referred to the first applicant’s letter of 21 January 1998, observing:
Whilst it may be the case that the Applicants have more support here than in Sri Lanka, the Tribunal has to assess whether they face a real chance of persecution for a Convention reason. If they remained in Colombo there is no real chance in the Tribunal’s view that the Applicant’s sons will be recruited by the LTTE. As stated above their lack of contact with the north satisfies the Tribunal that there is also no real chance that they will face persecution in Colombo. This does not mean that returning to Colombo will be easy for the Applicants. They have not lived there for some time and the country information above does not indicate that life has become any easier for Tamils in Colombo. However difficulties in settling in on returning do not mean that the Applicants face a real chance of persecution for a Convention reason.
The Tribunal was not satisfied that the applicants were persons to whom Australia had protection obligations under the Convention.
grounds for review in this court
22 The applicants gave particulars of their grounds for seeking review in a document dated 8 March 2001. These particulars formed the basis of their written submissions in which they contended:
4.7 The RRT found that there were a number of risk factors facing Tamils in Colombo. It identified six risk factors where the person was:
(i) a young Tamil;
(ii) who had recently arrived;
(iii) particularly one who had recently arrived from the north or east;
(iv) who did not possess a national identity card;
(v) who did not have someone to vouch for them; and
(vi) who did not speak Sinalese.
4.8 The RRT found the firstnamed applicant (mother) did not fit the risk profile because her age excluded from the first risk factor. The RRT found the children (being the second and third applicants and the daughter …) did not possess an identity card (factor four). It also found that because they would not be arriving ‘from the north or east’ they would not attract attention for this risk factor. However, the RRT failed in its reasons to consider why, given that all the other risk factors were established in connection with all of the applicants, and in light of the accepted history of the experiences of [the deceased], the fear held by the applicants, which the RRT accepted, was not ‘well-founded’. The RRT reasoned that the applicants would satisfy factor five because they could ‘vouch’ for each other. The applicants contend this reasoning is circular and the factor which the RRT identified as removing the ‘risk factor’ was having someone to ‘vouch’ who was themselves established in Colombo.
4.9 The RRT accepted that [the deceased] had been detained by Sri Lankan security forces in July 1991 and that the applicants would have to register for National Identity Certificates with the Sri Lankan security forces. The RRT failed to address the consequences of this fact which was the likelihood that the very fact of applying for National Identity Cards would draw the applicants to the attention of the Sri Lankan authorities which was the circumstance they feared.
They submitted that, for these reasons, the Court ought to conclude that there had been a failure on the Tribunal’s part to observe the requirements of s 430(1) of the Act.
23 The applicants also submitted that “the conclusion of the RRT that the accepted fear of persecution was not ‘well-founded’ involves a departure from the terms of the Refugees Convention” since the Tribunal had found:
· that [the deceased] had been detained with the cousin … in July 1991;
· the applicants were described by most, if not all, of the ‘risk factors’ applicable to Tamils; and
· the applicants would be required to approach the Sri Lankan security forces for National Identity Cards.
Counsel for the applicants reiterated these submissions at the hearing.
24 As may be seen, the applicants’ case relied very heavily on the decision of the Full Court of this Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 (“Singh”). The decision in Singh was, however, overruled by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 (“Yusuf”), delivered after the hearing in this case. The High Court held, contrary to Singh, that s 430(1)(c) of the Act merely obliged the Tribunal to set out its findings on those questions of fact which it considered to be material to the decision that it made, and the reasons it had for reaching that decision: see 180 ALR 1 at [34] per Gaudron J, [68] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) and [217] per Callinan J. On this account, the Court subsequently afforded the parties an opportunity to make supplementary submissions in light of the reasoning in Yusuf.
25 In written submissions dated 23 August 2001, concerning the application of Yusuf, the applicants relied on the proposition, advanced in the joint judgment and by Gaudron J that s 476(1) permitted an applicant for review under Part 8 of the Act to invoke the common law concept of jurisdictional error. Referring to Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 179, counsel for applicants pointed out that the concept of jurisdictional error covers a number of kinds of error, including asking the wrong question or ignoring relevant material.
26 After noting that the limitation in s 476(3) of the Act applies to only one ground of review in s 476(1) (namely, s 476(1)(d)), the joint judgment in Yusuf stated at [83]-[84]:
[T]here is no reason to give either para (b) or para (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it ‘exceeds its authority or powers’. If that is so, the person who purported to make the decision ‘did not have jurisdiction’ to make the decision he or she made, and the decision ‘was not authorised’ by the Act.
Moreover, in such a case, the decision may well, within the meaning of para (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. … No doubt it must be recognised that the ground stated in para (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para (e) deals. That having been said, the addition of the qualification to para (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out.
See also [4] of the concurring judgment of Gleeson CJ and [38]-[44] in the judgment of Gaudron J.
27 The applicants also referred in their supplementary submissions to Gaudron J’s observation at [37]:
[I]f in its written statement setting out its decision, the tribunal fails to refer to or fails to make findings with respect to a relevant matter, it is to be assumed, consistently with the clear directive in s 430 of the Act, that the tribunal has not regarded that question as material. And depending on the matter in issue and the context in which it arises, that may or may not disclose reviewable error. For example, the failure to make a finding on a particular matter raised by the applicant may, in some cases, reveal an error of law for the purposes of s 476(1)(e) of the Act.
28 In their supplementary submissions, the applicants said:
3.5 The Applicants refer to and repeat the submission put in … earlier submissions. However the Applicants put the submission on the basis that the RRT approached the question of whether the subjective fear was ‘well-founded’ by identifying the wrong issue or asking the wrong question. The question for the RRT was whether the Applicants had demonstrated that they had a well founded fear of persecution for a Convention reason. However the RRT analysed the question by considering whether some or all of the Applicants possessed (or suffered) from various risk factors. The two questions are not synonymous. A person may have a well-founded fear of persecution and not have any risk factors; a person may suffer from all of the risk factors and not fear persecution. The RRT erred on this basis.
3.6 In the alternative, and on the assumption that considering whether the subjective fear of persecution was well-founded was a question to be determined by considering the risk factors, the RRT erred by failing to consider the circumstances of the Applicants cumulatively. The RRT appears to have accepted that some of the risk factors were established in relation to all of the Applicants, the Applicants were members of a family which feared persecution and the RRT failed to consider the circumstances of the Applicants separately.
3.7 The RRT erred by reasoning that the Applicants would satisfy risk factor 5 because they could ‘vouch for each other’. … [T]his reasoning is circular and starts from the assumption that the Sri Lankan authorities would accept that any one of the Applicants could ‘vouch’ for one or all of the others to remove the risk factor.
3.8 The Applicants contend that by proceeding in this way the RRT identified a wrong issue and asked itself a wrong question and that this reasoning affected its decision.
They also submitted that matters that they had earlier characterised as errors of law might also be jurisdictional errors either at common law or under s 476(1)(b) of the Act.
29 The respondent replied, in its written submissions of 14 September 2001, that, for reasons that appear below, the Tribunal had not made any of the errors imputed to it.
consideration of the issues raised
30 At the hearing the applicants’ first submission was in effect that the Tribunal’s reasons did not adequately explain its decision that it was not satisfied that their fear of persecution for a Convention reason was well-founded. This submission fails for two reasons. First, in so far as it relied on Singh, Singh not longer states the law, having been overruled by Yusuf. Secondly, I accept that, as the respondent submitted, these reasons, when read as a whole, sufficiently explain the Tribunal’s decision.
31 In reaching its decision, the Tribunal referred to the following matters.
· After his detention and before his departure from Sri Lanka in 1991, the deceased “did not experience any further serious difficulties”.
· At the time of the deceased’s detention in 1991, none of the applicants were themselves detained.
· Taking account of the above matters, the country information, and the fact that the first applicant had returned to Sri Lanka for a month in 1993 without being detained by the authorities, the first applicant did not fit the profile of those at risk.
· Although the second and third applicants were within the age group of those most at risk in Sri Lanka, and although they would need to obtain identity cards, they did not face a real chance of persecution for a Convention reason upon their return to Sri Lanka because:
· they had not recently arrived from the north or east of Sri Lanka (and this was a particularly significant risk factor);
· before their departure, all their ties were with Colombo;
· they did not have a profile of association with the LTTE;
· they had their mother and each other to vouch for them and explain where they had been in recent past; and
· they would not be recruited by the LTTE as they had had no contact with the north of Sri Lanka during their formative years and one of them was born in Colombo.
32 The Tribunal turned its mind to the possible significance, so far as the applicants were concerned, of the deceased’s detention and the associated events. It also took into account the risk factors that it had identified by reference to the country information. The applicants’ submission that the Tribunal did not deal adequately with the deceased’s detention and the risk factors amounted to a submission that the Tribunal should have given a different weight than it did to the evidence about these matters. The Tribunal is entitled, however, to make its own evaluation of the importance of items of evidence and the matters to which they relate. It was for the Tribunal to determine the comparative weight to be given one consideration over another: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281 and Kumar v Minister for Immigration and Multicultural Affairs [1999] FCA 156 at [38].
33 In their submissions concerning the alleged circularity of the Tribunal’s observation that each applicant could vouch for the other in Colombo, the applicants challenged the Tribunal’s reasoning process. Poor reasoning does not, however, constitute reviewable error: see Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257 and the cases there cited. Even if the Tribunal’s reasoning was flawed, no relevant error is shown.
34 In the course of the hearing, the applicants’ counsel noted the Tribunal’s finding that “the presence of relatives and residence in Colombo” would lessen the applicants’ risk of harm. Counsel pointed out that there was evidence before the Tribunal that the first applicant owned property in Jaffna (although there was other evidence that a house on the property had been destroyed). Counsel noted (and I accept) that there was no reference to this property in the Tribunal’s reasons and, on the contrary, the Tribunal had relied on the “Colombo factor” as supporting its decision. That is, as already noted, the Tribunal relied on the family’s ties with Colombo (including their residence, in a rented property, in Colombo prior to their departure in 1991; the fact the children were educated in Colombo; and that the youngest child was born in Colombo) to reach a decision adverse to the applicants. I do not consider, however, that any relevant error is shown in this aspect of the Tribunal’s reasons.
35 It is to be borne in mind that the Tribunal is not bound to refer to every matter relied on by an applicant: see Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at 422-23. The Tribunal plainly adverted to the Colombo factor, and the matters that had in the past linked the applicants to Colombo. One cannot infer that it did not consider relevant matters from the fact that it did not expressly mention the property in Jaffna (or the destruction of the house on it). In any event, the matter was not one which the Tribunal was bound to take into account in the sense referred to by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40.
36 Counsel for the applicants submitted that the Tribunal did not take into account, or did not give adequate weight to the facts that:
· the second and third applicants would be obliged to apply for identity cards; and
· none of the applicants were Singhalese speakers.
37 I reject the submission that the Tribunal did not consider these matters. In its reasons, the Tribunal specifically referred to the identity card issue. Under the heading “Claims and Evidence”, it referred to the fact that the eldest child of the family “only spoke a little Singhalese as she had studied in English and Tamil was spoken at home”. Given that the second and third applicants were some years younger than she was, and that they had left Sri Lanka in 1991, the Tribunal must be taken to have been aware that they had no, or little, facility with the Singhalese language. Further, having acknowledged that Tamil was spoken within the family’s home, the Tribunal can be taken to have been aware that the first applicant’s principal language was Tamil. In reality, these submissions too are in the nature of challenges to the weight accorded by the Tribunal to matters before it. As already noted, a challenge of this kind does not disclose reviewable error.
38 At the hearing, the applicants’ counsel also submitted that the Tribunal’s decision disclosed an error of law for the purposes of s 476(1)(e) of the Act. According to this submission, having found the facts as it did, the Tribunal was bound to be satisfied that the applicants had a well-founded fear of persecution. This, so it seems to me, amounted to a contention that the Court review the merits of the Tribunal’s decision, rather than the process by which it arrived at its decision: cf Abebe v Commonwealth (1999) 197 CLR 510 at 579. Save for one issue referred to below, there is nothing in the Tribunal’s statement of law to indicate that it misunderstood its task, or that it misapplied the law to the facts it found. As I have said, questions of weight are essentially for the Tribunal to determine. It was open to the Tribunal to attach more significance to one risk factor than another, as it apparently did. That is, whilst the Tribunal noted that the younger applicants satisfied some risk factors, it attached particular significance to the fact that neither of them would be recent arrivals from the north or east of the country, if they were to return to Colombo. It was open to the Tribunal to adopt this approach, and no reviewable error is shown in this connection.
39 For the same reasons, I reject the applicants’ submission that the error of law propounded by them might also constitute jurisdictional error: see supplementary contentions, par 3.9.
40 Also in these supplementary submissions, the applicants contended that the Tribunal had erred in considering how they “rated” by reference to the risk factors faced by Tamils in Colombo. They submitted that the Tribunal was required to decide whether it was satisfied that they had a well-founded fear of persecution for a Convention reason, and that this was not necessarily answered by considering whether they matched the risk factors to which the Tribunal referred. As already noted, they submitted that the Tribunal had failed to consider their circumstances cumulatively or separately. They renewed their attack on the Tribunal’s finding that they could “vouch for each other”. They contended that, by reason of all these matters, the Court should conclude that the Tribunal had identified the wrong issue or asked itself the wrong question and, as a result, there was jurisdictional error in the sense used in Yusuf (and Craig).
41 I discussed and rejected the applicants’ contention regarding the circularity of the Tribunal’s reasoning above, and it is unnecessary to say more about it.
42 As already stated, the Tribunal was obliged to consider the evidentiary material before it, including the country information. It was open to it to find (as it did) that this information established the “risk factors” to which it referred, and to give such significance as it thought appropriate to these factors. It was also open to it to conclude that the information established that one risk factor (e.g., recent arrival from the north or east of Sri Lanka) created a more significant danger than the other factors. There is, therefore, no reviewable error shown in the way in which the Tribunal analysed the evidence, and made its findings of fact.
43 In any event, I accept, as the respondent submitted that the Tribunal did not limit its consideration, as the applicants maintained, to the so-called risk factors. The Tribunal also considered the significance for their case of the deceased’s detention in 1991. Moreover, I reject the submission that the Tribunal did not consider the applicants’ cases cumulatively and separately. On the one hand, the Tribunal directed its attention to their common situation, including that none of them had been detained with the deceased in 1991 or could be described as recent arrivals from the north or east if they returned to Colombo, and that they could “vouch” for one another. The Tribunal also considered their positions separately, considering, first, the first applicant’s situation and, then, the situation of the second and third applicants, noting too the differences between them.
44 Accordingly, I reject the applicants’ submission that jurisdictional error is established.
what was the effect of the deceased’s death on the application for tribunal review?
45 As already noted, the deceased, who was the principal claimant for a protection visa, died on 14 January 1998. This was after he had lodged an application for review by the Tribunal under s 412 of the Act, but before the application was heard and the decision in question in this proceeding delivered. In this circumstance, a question arises concerning the Tribunal’s power to hear and determine the application. In particular, what was the effect of the deceased’s death on the application for review lodged with the Tribunal on 28 May 1997?
Statutory framework
46 The Act provides the context in which this question must be considered. Sections 45 to 51 of the Act, which are within Subdiv AA of Div 3, deal with applications for visas. By virtue of ss 40 and 41, regulations may provide that visas or visas of a specified class may only be granted in specified circumstances or subject to specified conditions. Section 45 provides:
(1) Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.
(2) Without limiting subsection (1), the regulations may prescribe the way for making:
(a) an application in specified circumstances; or
(b) an application for a visa of a specified class; or
(c) an application in specified circumstances for a visa of a specified class.
…
47 Section 46(1) relevantly provides:
Subject to subsection (2), an application for a visa is valid if, and only if:
(a) it is for a visa of a class specified in the application; and
(b) it is made in the way required by subsection 45(2) … .
Section 48A prevents a non-citizen who has unsuccessfully applied for a protection visa from making a further application.
48 Section 415 sets out the powers of the Tribunal when reviewing a “RRT-reviewable decision”. Section 415(1) provides as follows:
The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
An application for review may only be made by a non-citizen who is the subject of the primary decision and physically present in the migration zone when the application for review is made: see s 412(2) and (3).
49 The Regulations further define the context within which to consider whether it was open to the Tribunal to entertain the review application, notwithstanding the deceased’s death. Section 498(1) of the Act provides that:
The powers conferred by or under this Act shall be exercised in accordance with any applicable regulations under this Act.
50 Regulation 1.18 of the Regulations provides that the Minister may approve forms for use in making an application for a visa. It may be assumed that the Minister had approved the forms originally completed by the applicants. Regulation 2.07 states:
(1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a) the approved form (if any) to be completed by an applicant;
(b) the visa application charge (if any) payable in relation to an application;
(c) other matters relating to the application.
(3) An applicant must complete an approved form in accordance with any directions on it.
51 Item 1126, headed “Protection (Class AZ)” visas, states:
(1) Form 866.
(2) Visa application charge:
(a) First instalment (payable at the time application is made):
(i) In the case of each applicant who is in immigration detention and has not been immigration cleared: Nil
(ii) In any other case: $30
(b) Second instalment (payable before grant of visa): Nil
(3) Other:
(a) Application must be made in Australia.
(b) Applicant must be in Australia
(c) Application by a person claiming to be a member of the family unit of a person who is an applicant for a Protection (Class AZ) visa may be made at the same time and place as, and combined with, the application by that person.
(4) Subclasses:
866 (Protection)
52 Schedule 2 of the Regulations makes further provision with respect to the grant of subclasses of visas. In connection with subclass 866 (Protection) visas, under item 866.2, “Primary criteria”, there is a note saying that “All applicants must satisfy the primary criteria”. These include the following:
866.21 Criteria to be satisfied at time of application
866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:
(a) makes specific claims under the Refugees Convention; or
(b) claims to be a member of the same family unit as a person who:
(i) has made specific claims under the Refugees Convention; and
(ii) is an applicant for a Protection (Class AZ) visa.
866.22 Criteria to be satisfied at time of decision
866.221 The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.
866.222 In the case of an applicant referred to in paragraph 866.211(b):
(a) the Minister is satisfied that the applicant is a member of the same family unit as a person who has made specific claims under the Refugees Convention (a claimant); and
(b) that claimant has been granted a Protection visa.
Effect of the deceased’s death
53 What was the effect of the deceased’s death on the deceased’s entitlement to review by the Tribunal? Whether a statutory entitlement (including an entitlement to merits review of an administrative decision) lapses or devolves on another upon the death of the claimant under the statute depends on the language of the statute under which the entitlement arises: see Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326 at 327. Where the statutory entitlement does not devolve upon another upon the claimant’s death, then death extinguishes the entitlement and also the power of a relevant decision-maker with respect to it, including the power of a Tribunal upon review: cf Re Andreatta at 327.
54 In a number of provisions, the Act emphasises that the right of review conferred by it is personal to the non-citizen who is the subject of the RRT-reviewable decision: see, e.g., ss 412(2) & (3), 425(1) and 430A(2). If, in this case, the deceased had been the sole applicant for review of a decision by the respondent refusing him a protection visa, then, as a matter of statutory construction, his death would have extinguished his review entitlement.
55 This conclusion is supported by the nature of the right of review and the relevant RRT-reviewable decision. The decision under review was one refusing the deceased a protection visa, and with his death the decision had no further purpose to serve. Put simply, on his death, the deceased could no longer be affected by the decision he sought to have reviewed, nor any review right he had previously invoked. The statutory injunction, in s 414(1) of the Act, that the Tribunal review the decision the subject of a valid application, does not result in a contrary conclusion. There will be no valid application for review if the application has lapsed by reason of an applicant’s death.
Consequences for the present applicants
56 In the present case, it was the deceased who, at the time of application, sought a Protection (Class AZ) visa and who made the specific claims under the Refugees Convention. His wife and children made application for protection visas solely as members of his family.
57 This is made clear from the different versions of Form 866 completed by the deceased and his family. The deceased completed a Form 866 entitled “Application for an applicant who wishes to submit their own claims to be a refugee”. His wife and children completed applications entitled “Application for a member of the family unit”, which carried the following notation:
This part is for a member of the family unit who does NOT have their own claims to be a refugee, but is included in this application.
The deceased and his family completed their 866 Forms substantially in accordance with the instructions on them, and no question arises about the validity of their applications: contrast Minister for Immigration & Multicultural Affairs v A (1999) 91 FCR 435; Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495 (“Yilmaz”); Minister for Immigration & Multicultural Affairs v Li (2000) 178 ALR 523 (“Li”); and Sevim v Minister for Immigration & Multicultural Affairs [2001] FCA 1597 (“Sevim”).
58 As the respondent’s delegate held that the deceased was “not a person to whom Australia has protection obligations under the Refugees Convention”, it followed that the delegate found that none of the deceased’s family met the criterion in cl 866.222(b) of Schedule 2 of the Regulations. It was this decision that the deceased and his family challenged on review. Was it open to the Tribunal to decide the review application as if each living applicant had made an application for a Protection (Class AZ) visa?
59 As the Full Court of this Court noted in Li at 535, the Act “places great emphasis on the need for a visa applicant to complete a prescribed application form”. The Regulations do not, so it seems to me, permit the Tribunal to treat the applicants as if they had each sought a Protection (Class AZ) visa in her or his own right. As we have seen, the Regulations prescribed the application to be made by a family member of an applicant for a Protection (Class AZ) visa. This is the form that the applicants completed.
60 In any event, even if it was open to the Tribunal to have considered their applications in this way, a result adverse to the applicants was inevitable. Having completed an application in December 1996 as a family member of an applicant for a Protection (Class AZ) visa (in reliance on criterion 866.221(b)), none of the present applicants would have been able to satisfy the Tribunal that she or he met criterion 866.222(b), since the principal claimant had died without being granted a Protection (Class AZ) visa. Equally, none of them would have been able to satisfy criterion 866.221(a) and avoid the need to satisfy criterion 866.222(b), since none of them had made specific claims under the Refugees Convention at the time of application for a visa. Upon the death of the deceased, his application for a Protection (Class AZ) visa lapsed; and it became impossible for his wife and children to satisfy the primary criterion set down in the Regulations for a visa of the class sought by them.
61 What ought the Tribunal have done in this case? As already noted, by virtue of s 415(1) of the Act, the Tribunal was entitled to exercise the powers and discretions that are conferred by the Act on the person who made the primary decision: cf Yilmaz 511-515 per Gyles J and the authorities cited. At the same time the Tribunal was bound to act in accordance with the Act and the Regulations made under it. If the applicants’ review entitlement did not lapse with the deceased’s death, then the Tribunal was bound to consider their visa application and determine it adversely to them. (I interpolate here that, had the Tribunal recognised this, then a number of the applicants’ objections to the Tribunal’s reasons would have had less force. I refer, for example, to the Tribunal’s reliance on the fact that the deceased’s then relatively young children were not arrested with him. The applicants objected, with some force, to the Tribunal’s reliance on this fact.) Given, however, that each family member’s entitlement was entirely dependent on the deceased’s entitlement and that, upon his death, his entitlement for review lapsed, the preferable view may be to regard all entitlement to review as lapsing on the deceased’s death, with the consequence that the Tribunal had no power to determine the review application. It is, however, unnecessary to decide which of these alternatives is to be accepted and, bearing in mind that the matter was not argued by the parties, I do not do so.
appropriate orders
62 The Tribunal affirmed the delegate’s decision, although upon a mistaken basis. For the reasons set out immediately above, it may be that the Tribunal did not have the jurisdiction to make the decision it did, although not for the reasons advanced by the applicants in this proceeding. I do not consider, however, that anything is to be gained by setting aside the decision and remitting the matter to the Tribunal with further directions that it act in conformity with these reasons. Rather, for the reasons stated, it is preferable to dismiss the application in so far as it was based on the grounds in the paragraph numbered 3 in the order of Hayne J made in the High Court on 23 November 1999. In the particular circumstances of the case referred to above, it seems to me appropriate that there be no order as to the costs of the part of the matter that was remitted to this Court. I would also make an order directed to the non-disclosure of the identity of the applicants, in conformity with the applicants’ counsel’s request.
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I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. |
Associate:
Dated: 15 March 2002
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Counsel for the Applicants: |
Mr P N Rose SC |
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Solicitor for the Applicants: |
Ravi James & Associates |
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Counsel for the Respondents: |
Mr C G Fairfield |
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Solicitor for the Respondents: |
Australian Government Solicitor |
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Date of Hearing: |
22 March 2001 |
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Date of Judgment: |
15 March 2002 |
