FEDERAL COURT OF AUSTRALIA

NAAA v Minister for Immigration & Multicultural Affairs [2002] FCA 362

PROCEDURE – whether Refugee Review Tribunal (“Tribunal”) properly joined as respondent to proceedings for judicial review – whether s 479 of the Migration Act 1958 (Cth) prevents the Tribunal being joined.

MIGRATION – whether jurisdictional error established – whether Tribunal failed to consider claims advanced by applicants.

Constitution s 75(v)

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

Migration Act 1958 (Cth) ss 474, 476(2), 477, 479

Judiciary Act 1903 (Cth) s 39B

Federal Court Rules O 6 r 9(a)

Tweed Shire Council v Minister Administering the Crown Lands Act (1996) 92 LGERA 80, cited.

Wickremasinghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125, cited.

The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, cited.

Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, cited.

Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1995) 133 ALR 629, cited.

Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155, followed.

Seligman v Minister for Immigration and Multicultural Affairs (1998) 54 ALD 761, followed.

Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115, cited.

Koe v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 508, followed.

Craig v South Australia (1995) 184 CLR 163, cited.

NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263, cited.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, followed.

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, followed.

Sellamuthu v Minister for Immigration and Ethnic Affairs (1999) 90 FCR 287, cited.

Revised Explanatory Memorandum to the Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth)

NAAA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1381 of 2001

SACKVILLE J

SYDNEY

28 MARCH 2002

THE COURT ORDERS THAT:

1.                  The second respondent cease to be a party to the proceedings.

2.                  The application be dismissed.

3.                  The applicants pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

the proceedings

1                     The applicants are husband and wife who arrived in Australia on 6 July 1996.  They are Sri Lankan nationals, born in Colombo and resident in that city until they travelled to Australia with their two children.  The husband is an ethnic Sinhalese; his wife is Tamil.  They were married in 1989.

2                     The applicants lodged an application for a protection visa on 20 September 1996.  A delegate of the first respondent (“the Minister”) refused the application on 28 July 1997.  The second respondent, the Refugee Review Tribunal (“RRT”), affirmed the decision of the delegate on 23 May 2000, that is three years and eight months after the applicants lodged their application for review.

3                     The applicants sought review of the RRT’s decision in this Court.  On 29 September 2000, orders were made by consent setting aside the RRT’s decision and remitting the matter to the RRT for determination according to law.

4                     The RRT, differently constituted, held a hearing on 22 February 2001 at which both applicants gave evidence.  Prior to the hearing detailed written submissions were provided to the RRT by solicitors on behalf of the wife.  On 21 February 2001, both applicants sent a letter to the RRT summarising their claims.  The solicitors made further written submissions, expressed to be on behalf of the wife, after the hearing.

5                     The RRT gave its decision on 19 September 2001, again affirming the delegate’s decision.  The current application to this Court was filed on 2 October 2002.

6                     Since the application was filed on the commencement date of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (“Amendment Act 2001”) the present proceedings are governed by Part 8 of the Migration Act 1958 (Cth) (“Migration Act”) as amended by the Amendment Act 2001.  The key provision in Part 8 is s 474, which relevantly provides as follows:

“474(1)           A privative clause decision:

(a)               is final and conclusive; and

(b)               must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2)                         In this section:

Privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).”

7                     The applicants have filed an amended application in this Court which seeks relief pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) (“Judiciary Act”).  Section 39B(1) confers jurisdiction on the Federal Court

“with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.”

This language mirrors that of s 75(v) of the Constitution, which confers a like jurisdiction on the High Court.

8                     In the amended application, the applicants seek a writ of certiorari quashing the RRT’s decision of 19 September 2001, a writ of mandamus directing the RRT to rehear and redetermine according to law the applicants’ application for a protection visa and consequential injunctive relief.  They do so on the basis of what is said to be jurisdictional error committed by the RRT.  The respondents named in the amended application are the Minister and the RRT.  The RRT filed a submitting appearance.

9                     At the conclusion of the hearing I indicated to the parties that I was not satisfied that the applicants had established jurisdictional error on the part of the RRT.  I said that I would provide reasons for reaching this conclusion.  I do so in this judgment.  However, I address first a procedural issue raised by the Minister, namely whether the RRT should be a party to the proceedings.

THE PROCEDURAL QUESTION

10                  At the outset of the hearing, Mr Gageler SC, who appeared with Mr Lloyd for the Minister, applied pursuant to Federal Court Rules (“FCR”) O 6 r 9(a), for an order that the RRT cease to be a party to the proceedings.  Rule 9 provides as follows:

“Where a party –

(a)               has been improperly or unnecessarily joined; or

(b)               …,

the Court, on application by any party or of its own motion, may order that he cease to be a party and make orders for the further conduct of the proceedings”.

Mr Gageler submitted that the effect of s 479 of the Migration Act was that the RRT was not a proper party to the proceedings.

11                  Section 479 of the Migration Act, which was introduced by the Amendment Act 2001, provides as follows:

“The parties to a review of a privative clause decision resulting from an application referred to in s 477 are the Minister and:

(a)               if the privative clause decision concerned was reviewable under Part …7… and a decision on such a review has been made – the applicant in the review by the relevant Tribunal; or

(b)               in any other case – the person who is the subject of the decision; or

(c)               in any case – a person prescribed by the regulations”.

Section 477 of the Migration Act, to which s 479 makes reference, is relevantly in these terms:

“(1)     An application to the Federal Court under s 39B of the Judiciary Act 1903 for:

(a)               a writ of mandamus, prohibition or certiori; or

(b)               an injunction or a declaration;”

            in respect of a privative clause decision…must be made to the Federal Court within 28 days of the notification of the decision”.

It is necessary also to note s 478 of the Migration Act, which states that an application referred to in s 477 may only be made by the Minister and, relevantly, the applicant in the review by the Tribunal.  It was common ground that the proceedings before the Court are for “review of a privative clause decision resulting from an application referred to in s 477” and are thus within s 479.

12                  Mr Gageler accepted that nothing of substance turned on the Minister’s application for the purposes of the present case.  He indicated, however, that the issue is not without some practical significance.  In particular, the application raises the question of whether, on its correct construction, s 479 avoids what would otherwise be the need for the RRT and other migration Tribunals to make continuous formal submitting appearances in proceedings for judicial review of privative clause decisions. 

13                  While the issue may have some practical significance, it is fair to say that the question of construction to which the application gives rise was not fully argued.  In part, this was because the applicants took the view, understandably enough, that the application was of no great moment to them, since it had no bearing on the Court’s jurisdiction or power to grant the relief sought in the amended application.  The views I express are, therefore, made without the benefit of full argument.

14                  Mr Gageler acknowledged that, but for a provision to the effect of s 479 of the Migration Act, the RRT (or other Tribunal) would be a necessary party to the proceedings.  In my opinion, Mr Gageler was correct to make this concession, since the relief sought in the amended application includes orders quashing the RRT’s decision and, in effect, remitting the matter to it for determination in accordance with law.  It is difficult to see how, in the absence of legislation, orders of this kind could be made without the RRT being a party, even if the Minister would ordinarily be regarded as the appropriate contradictor.  In general, of course, it is inappropriate for a Tribunal to become a protagonist in proceedings for judicial review: The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, at 35-36, per curiam; cf Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, at 681-682, per Brennan J; Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1995) 133 ALR 629, at 639-640, per Lockhart J.

15                  Mr Gageler also acknowledged that s 479 of the Migration Act does not specifically say that the RRT (or other Tribunal) is not a proper party to proceedings under s 39B(1) of the Judiciary Act in which the applicant challenges a privative clause decision.  He submitted, however, that the Revised Explanatory Memorandum to the Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth) suggested that the purpose of s 479 was to relieve migration Tribunals from the burden of entering formal submitting appearances in proceedings for judicial review of Tribunal decisions.  The relevant passage in the Explanatory Memorandum is as follows:

“New section 479 delimits the parties to any judicial review by the Federal Court under section 39B of the Judiciary Act in relation to a privative clause decision (by reference to new sub-section 477(1)) to:

·        the Minister; and

·        if there are merits review rights under Part 5…and a decision on such a review has been made, the applicant in the review before the Tribunal; or

…”.

Mr Gageler placed particular emphasis on the word “delimits” in the Explanatory Memorandum.

16                  The usual rules determining who are proper and necessary parties to litigation may be overridden by statute: Tweed Shire Council v Minister Administering the Crown Lands Act (1996) 92 LGERA 80, at 83, per Meagher JA (with whom Priestley JA and Simos AJA agreed).  The question is whether, as a matter of construction, s 479 of the Migration Act has the effect attributed to it by the Minister.

17                  Independently of authority, I doubt that I would have been inclined to read s 479 of the Migration Act as converting a Tribunal from a necessary party to proceedings for judicial review of a privative clause decision to a body that cannot properly be joined to such proceedings.  Section 479 merely says that the Minister and the applicant “are” parties to a review of a privative clause decision.  It does not say expressly that the relevant Tribunal must not be joined as a party.  Clearly enough, one purpose of a provision couched in the terms of s 479 is to require the Minister to be joined as a party to the proceedings notwithstanding that the applicant does not (and cannot: see s 476(2)) seek relief in respect of any decision made by the Minister or his or her delegate.  In other words, s 479 is intended to make the Minister a necessary party to the proceedings.  Another purpose is to ensure that the applicant before the Tribunal is a necessary party to the proceedings for judicial review: cf Wickremasinghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125.

18                  It might be thought that if Parliament intended to convert a Tribunal from a necessary party to judicial review proceedings to one whose joinder in the proceedings is improper, it would have used clearer words than those appearing in s 479.  Moreover, the section does not need to be construed in the manner suggested by Mr Gageler for it to have work to do.  Indeed, there may be exceptional cases in which the applicant seeks relief directly against the Tribunal (as distinct from seeking an order quashing the decision and ancillary orders).  An example might be proceedings in which an applicant alleges improper conduct by the Tribunal itself and seeks costs against it.  As I have noted, in general a Tribunal should not play an active role in proceedings challenging a decision made by it.  But this is not a universal proposition.  If an applicant did seek relief against a Tribunal in the circumstances I have mentioned, the proceedings would presumably still be properly described as a “review of a privative clause decision resulting from an application referred to in s 477”.  Yet if Mr Gageler’s submission is correct, the Tribunal, although at risk of an adverse costs order and of a finding impugning its conduct, would not be a proper party to the proceedings and would need to rely on the Minister to protect its interests (unless the Tribunal were given leave to present evidence or make submissions).

19                  Section 479 of the Migration Act appears not yet to have been the subject of judicial consideration.  However, its predecessor, s 480 of the now repealed Part 8 of the Migration Act, has received some attention.  Section 480 provided that the parties to the review of a “judicially-reviewable decision”

“are the Minister and

(a)               …the applicant in the review by the relevant Tribunal”.

Section 480 was first introduced into the Migration Act by the Migration Reform Act 1992 (Cth) (originally numbered as s 166LF).

20                  In Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155, proceedings for judicial review of a decision by the Immigration Review Tribunal (“IRT”) had been commenced in this Court within the prescribed 28 day period from the date of notification of the IRT’s decision.  The application named as respondent the “[IRT] constituted by Ms Niki Dollis”.  The applicant, pursuant to leave, subsequently filed an amended application outside the 28 day period naming the Minister as the respondent.  The questions were whether the Court was seized with jurisdiction within the 28 day period and whether the application could be amended outside that period.  The Full Court, in substance, answered both questions in the affirmative.

21                  The Full Court pointed out (at 168) that s 480 required the Minister to be a party to the proceedings for review of the IRT’s decision, notwithstanding that no part of the applicant’s claim concerned an act or omission of the Minister.  The Court continued:

“In our view, the evident purpose of s 480 is, first, to make it unnecessary for the decision-maker (the Tribunal) to appear (cf R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; 29 ALR 289); and, secondly, to avoid the need for the Minister to apply to be joined as a party to the judicial review proceedings.  But, significantly for present purposes, there is nothing that we can find in the language or evident intent of s 480 to suggest that a failure to name the Minister as respondent will have the effect of depriving the Court entirely of jurisdiction in the proceedings.  Section 480 does no more than remove any doubts as to the identity of the proper parties to the proceedings by declaring who those parties are, subject to any intervention by the Attorney-General under s 484.  Section 480 is declaratory of the position as to parties and it operates upon an existing claim before the Court.  Such a claim is under the Court’s jurisdiction if it is within s 475, 476 or 477.”

22                  The observations of the Full Court tend to support Mr Gageler’s submission, although they do not determine the issue.  The Full Court was not concerned with a case such as the present, where both the Minister and the Tribunal are joined as respondents.  Nor was the Court asked to consider whether, in such circumstances, the Tribunal had been improperly joined and had to be removed from the proceedings.  Nonetheless, the Court appears to have accepted the fundamental contention made by Mr Gageler, namely that one purpose of a provision such as the current s 479 is to make it unnecessary for the relevant Tribunal to appear in the proceedings.

23                  In another case involving the repealed s 480 of the Migration Act, Seligman v Minister for Immigration and Multicultural Affairs (1998) 54 ALD 761, Foster J expressed the view (at 769) that:

“the legislative intention underlying s 480 is that only the minister is to be made a party in…review proceedings.  This does not mean that only the minister’s decision can be subject to review.  A judicially-reviewable decision which underpins the ultimate decision of the minister, as does the opinion of the Commonwealth Medical Officer in this case, can be reviewed in proceedings brought against the minister for that purpose.  Indeed, by force of s 480, no proceedings can be brought directly against the other decision-maker.”

On appeal, the Full Court did not address these observations, although it cast no doubt upon them: Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115.  In Koe v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 508, another Full Court noted (at 523) that the member constituting the RRT had been joined as a party “but in fact neither he nor it is a party to [the] review proceedings: Migration Act, s 480”.  The Court appears to have construed s 480 as having the effect of removing the RRT as a party to review proceedings notwithstanding that the application named it as such.

24                  The authorities to which I have referred, although not resolving the precise issue before me, seem to have construed the repealed s 480 as a direction that the relevant Tribunal was not a proper party to proceedings for judicial review instituted pursuant to s 476 of the Migration Act.  I think that the appropriate course is for me to follow the views expressed in those authorities.  There is no cogent reason for adopting a different interpretation of the current s 479 than the interpretation accorded to the repealed s 480. On the contrary, if anything, the fact that Parliament in effect re-enacted s 480 of the old Part 8 suggests that it intended to endorse the judicial construction of s 480.  This is an area in which Parliament is not slow to respond to decisions perceived to be inconsistent with legislative intent or otherwise inconsistent with policy.

25                  There are two other factors lending some support to this view.  The first is the language used in the Explanatory Memorandumreferred to by Mr Gageler.  Its terms are hardly definitive but they are, at the least, consistent with s 479 being intended to preclude the Tribunal being a proper party to the proceedings.  The second is that the statutory direction that the Minister is to be a party to the proceedings ensures that there is contradictor who can be expected, at least in most cases, to defend the actions of the relevant Tribunal.  To the extent that the Minister is not an appropriate party to fulfil this role (for example, where the Minister is an applicant and alleges that the Tribunal has not performed its statutory responsibilities), the respondent to the proceedings can usually be expected to defend the Tribunal’s conduct.  The truly exceptional cases, where the Tribunal can properly expect to play an active role in the proceedings, might be catered for by special orders, for example by giving the Tribunal leave to appear in the proceedings as amicus curiae for a limited and defined purpose.

26                  For these reasons I conclude that the RRT was not properly joined as a party to these proceedings and that an order should be made for it to cease to be a party.  As I have said, the removal of the RRT as a party has no practical significance for the proceedings.

27                  I should add that a possible alternative reading of s 480 of the Migration Act is that it is intended to make the relevant Tribunal an unnecessary party in judicial review proceedings of the kind identified in the section, unless perhaps the Tribunal has a direct interest in the outcome in respect of which it cannot be adequately represented by any of the other parties.  This possible reading, which would lead to the same result in the present case (FCR, O 6 r 9(a) refers both to improper and unnecessary joinder) was not canvassed in argument.  I say no more about it.

the applicants’ claimS

28                  The applicants provided a lengthy statement in support of their application for a protection visa.  The RRT described this statement as “vague, confused and in some respects at odds with the applicants’ later evidence”.  For this reason and because of the lapse of time the RRT decided to focus on the applicants’ most recent evidence including a written summary of their claims.

29                  The applicants claimed that the wife had been persecuted in Sri Lanka because she was a Tamil and that the husband had been persecuted because he was perceived as a Tamil sympathiser, in part because he had helped one of his wife’s relatives with the latter’s videography work.  Both applicants said that they feared persecution because the wife’s mother’s house at Wattala, where they lived from 1994 to 1996, had been used as a safe haven for Tamil refugees from the Jaffna area.  Moreover, the wife’s mother had travelled to Tamil Nadu in India and, for that reason, was suspected as having links with the Liberation Tigers of Tamil Eelam (“LTTE”).  The whole family was therefore at risk of persecution.

30                  The applicants relied on a number of incidents dating from 1989 to 1991, when they lived in an almost exclusively Sinhalese area of Colombo known as Ragama.  The four major incidents, the first three of which were reported to the police, were the following:

·        In 1989 the wife, who was pregnant, was pushed from a bus by an unknown man who said “there is no room for Tamils here”.  She was injured.

·        In February 1990, the applicants’ home was vandalised and anti-Tamil messages left by the perpetrators.

·        Later that year the applicants received threatening racist letters.

·        In January 1991, the wife found three masked men in the home, one of whom dashed her face against the windowpane, causing her quite serious injuries.  The perpetrators made insulting remarks about the fact that she was a Tamil.  The incident was not reported to the police because the perpetrators left a note threatening reprisals against the applicants’ child.

31                  In 1991 the applicants left Ragama and rented a small annex at Hunupitiya.  From 1994 to 1996, the applicants lived at the wife’s mother’s house in Wattala, although the mother left in November 1995 to join relatives in Australia.  According to the applicants, the mother left Sri Lanka after she had been kept in custody for a short time because of her alleged links with the LTTE.

32                  The applicants said that while living in Wattala they had been abused by Sinhalese extremists who had thrown stones at their home.  The wife also suffered injuries in January 1996 when LTTE suicide bombers blew up the Central Bank in Colombo.  The husband claimed that he was detained two days after the bombing for videotaping Colombo’s city district and kept in detention for a week, during which time he was mistreated.

33                  Following these events, the applicants decided to leave Sri Lanka.  They succeeded in obtaining an Australian visa and arrived by air on 6 July 1996.

the rrt’s decision

34                  The RRT accepted that the wife had been pushed from a local bus in 1989; that the applicants’ Ragama home had been broken into; and that they had received threatening racist letters.  These events had been reported to the police, but there was little the police could do.  The RRT also accepted the wife’s account of the encounter in 1991 with masked men at her home.

35                  The RRT continued as follows:

“As distressing as these incidents in Ragama were, they were isolated incidents perpetrated by unknown people, they occurred over a decade ago and the Applicants avoided similar future incidents by moving to another Colombo area.  They lived at Hunupitiya for some considerable time and without serious incident.”

36                  The RRT found that the applicants had assisted the mother to distribute leaflets during the 1994 election campaign on behalf of the United National Party (“UNP”), which had been in government until 1994.  It also found that the mother’s home had been stoned on isolated occasions and that the applicants had been verbally abused by Sinhalese extremists on several occasions after bombing incidents in Colombo.  The RRT said of these incidents that it was

“not satisfied that such incidents, even taken together, are so serious as to amount to persecution within the meaning of the Convention.  The Applicants were not harmed by these isolated incidents over a 2 year period and the Applicants remained living at this house despite these incidents, until they came to Australia.”

37                  Next, the RRT rejected the wife’s claim that she feared persecution in the form of political violence directed at her.  The RRT pointed out that she had been politically active only once, in 1994, and she had not suggested that she would become politically active on her return to Sri Lanka.

38                  The RRT accepted that the wife had been injured in a terrorist bombing, but found (as the wife had acknowledged) that the attack had not been aimed at her.  It expressed “some doubts” about the husband’s claim to have been detained and mistreated.  It accepted “as plausible” that the husband may have been detained for questioning about his association with the Tamil videographer (a Tamil from the north) in filming a sensitive site but found that he had not been mistreated during this detention for a Convention reason nor that he had been seriously suspected of LTTE links.  The RRT also found that there was no real chance of persecution of the applicants arising from the husband’s detention.

39                  The RRT noted that there had been “vague” references in the evidence to people searching for or asking about the applicants at their Wattala residence.  Even if the inquiries or interest were from local thugs or extremists, the RRT was not satisfied that the interest, in the year or so after they left, was “serious or sustained”.

40                  The RRT referred to a number of general claims by the applicants to the effect that all Tamils are persecuted or at risk of being regarded as LTTE supporters.  It considered that these claims were without foundation.  On the wife’s own evidence, she had never been detained by the security forces or had serious problems with the authorities.  The RRT was not satisfied that the wife had a well-founded fear of persecution by reason of her Tamil race or because of any political opinion imputed to her.

41                  Nor was the RRT satisfied that the applicants’ “mixed marriage” gave rise to a well-founded fear of persecution.  Such marriages were not uncommon in Sri Lanka and did not result in the partners being imputed with pro-LTTE beliefs.

42                  The RRT found that the applicants could return to Sri Lanka without being of interest to the authorities and without being detained at the airport.  They held genuine passports and other documentation to prove their identities.  The RRT observed that, while they might experience difficulties in resettling in Colombo, they had lived there all their lives, had friends and relatives in the city and business contacts.  Any difficulties would not amount to persecution and, in any event, would not arise for a Convention reason.  The RRT also found that

“If the Applicants feared a repeat of the harassment from local thugs and extremists experienced at the Wattala house in 1995, they could live in another Colombo neighbourhood or suburb where their history and the Applicant wife’s family’s past activities are not known.”

43                  The RRT, at the end of its lengthy reasons, summarised the applicants’ case and its findings as follows:

“The Applicants originally claimed to fear harm from a huge range of disparate sources, including home guards not mentioned again, due to race, their mixed marriage, actual, perceived and imputed political opinion, religion and membership of an unspecified social group.  As is apparent from the Applicants’ evidence at this Tribunal hearing, they were unaware of some of those claims, in particular about religion and membership of an unspecified social group, and as already stated, the Tribunal has not addressed these matters as it does not accept these claims represent their more recent experiences or current fears.  The Applicants very clearly told the Tribunal about their current fears and they submitted a written summary as well.  In summary, they fear harm if they return to Sri Lanka now, many years after they left, because of the Applicant wife’s Tamil race and because of a political opinion (support for the LTTE) imputed to them both by the authorities; they claim the latter arises because of their mixed marriage, because of help given years ago to Tamil refugees coming to Colombo and the Applicant wife’s mother’s brief visit to Tamil Nadu in 1994, and from more recent assistance given by the Applicant husband to Raju in filming the Colombo fort.  They also claimed to fear harassment and mistreatment from unspecified people (thugs and extremists) who regard them as LTTE sympathisers.  Also, before this Tribunal they said their main fear now is of detention and mistreatment on arrival at Colombo airport because they are failed asylum seekers returning to Sri Lanka.  However, for the reasons outlined at some length above, the Tribunal is not satisfied that the Applicants have a well-founded fear of persecution within the meaning of the Convention if they return to Sri Lanka now.”

the applicants’ submissions

44                  The applicants’ written submissions outlined their argument as follows:

1.                  The RRT’s decision was “infected” by “jurisdictional error of law”.  By this, Mr Karp, who appeared for the applicants, apparently meant a jurisdictional error in the sense used by the High Court in Craig v South Australia (1995) 184 CLR 163.

2.                  Excess of jurisdiction is a ground for judicial review in this Court pursuant to s 39B(1) of the Judiciary Act. 

3.                  On its proper construction, s 474(1) of the Migration Act does not prevent this Court from granting relief in the form of constitutional writs in respect of the errors complained of.

4.                  Alternatively, s 474 of the Migration Act is invalid because it confers part of the judicial power of the Commonwealth on members of the RRT.

5.                  In the further alternative, s 474 of the Migration Act is invalid because it is inconsistent with s 75(iii) and s 75(v) of the Constitution.

45                  Mr Karp recognised that unless the first step in the argument was made out, there was no occasion to address the other issues.  Since I have concluded that the applicants have not shown that the RRT’s decision was not affected by a jurisdictional error, it is not necessary to consider the other arguments raised by them.  I note, however, that precisely the same constitutional arguments put by Mr Karp in this case were rejected by Gyles J in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263.

46                  Mr Karp accepted that the RRT gave two independent reasons for rejecting the applicants’ claims.  The first was the RRT’s finding that the applicants’ experiences, having regard to the circumstances in Sri Lanka, were not such as to give rise to a well-founded fear that they would be persecuted for a Convention reason if they were returned to that country.  The second was that, even if they did have such a fear, they could relocate to another area of Colombo and live there without being at risk of persecution for a Convention reason.  Mr Karp acknowledged that the applicants could not succeed unless each of the findings made by the RRT gave rise to a jurisdictional error.

47                  The applicant submitted that the RRT had made three jurisdictional errors.  The first two errors were said to affect the finding by the RRT that the applicants did not have a well-founded fear of persecution for a Convention reason; the third was said to apply to the RRT’s finding that the applicants could safely locate to another area of Colombo.  The jurisdictional errors were said to be these:

·        First, the RRT had wrongly assumed that persecution requires the infliction of physical harm, and that emotional harm is not enough to establish that an applicant has been persecuted.  In making this incorrect assumption the RRT had failed to appreciate the question it had to address and therefore committed jurisdictional error.

·        Secondly, the RRT had considered the applicants’ claims to have suffered harm in consequence of the wife’s ethnicity and her political opinions in isolation, rather than cumulatively.  The RRT was bound to consider the totality of the applicants’ circumstances in Sri Lanka in order to assess whether they had a well-founded fear of persecution in Sri Lanka.  By not considering the whole of the harm suffered by the applicants, the RRT had constructively failed to exercise its jurisdiction.

·        Thirdly, the applicants attacked the RRT’s finding that the applicants, if they feared a repeat of harassment by “local thugs and extremists” could live in another Colombo neighbourhood or suburb where their history and the wife’s family’s past activities were not known.  Mr Karp submitted that this finding was flawed because it failed to take account of two matters, namely whether the applicants would feel obliged to assist Tamils in the future and whether the wife would suffer harm by virtue of being a Tamil or, alternatively, being a Tamil married to a Sinhalese.

reasoning

48                  It is of some importance, in addressing the applicants’ submissions, to bear in mind that they claimed to fear harm from (in the RRT’s words) a “huge range of disparate sources”.  Moreover, they relied on a variety of submissions and statements, some of which were, as the RRT found, vague and confused.  Certain claims were modified or abandoned; the later claims, in some respects, were inconsistent with earlier claims.  Further, the unfortunate delays between the original application and the second hearing (for which the second RRT was not responsible) meant that the RRT had to consider a series claims made by the applicants over a period of four and a half years.

49                  The task facing the RRT was therefore not easy.  It approached its task by analysing the evidence and claims in considerable detail: the RRT’s reasons run to 24 single spaced pages.  The length of reasons does not of itself, of course, demonstrate that the RRT’s reasons are free from error.  In this instance, however, it is indicative of a careful consideration of the various claims advanced by or on behalf of the applicants.

The Relocation Finding

50                  In my opinion, the short answer to the applicants’ submissions is that no basis has been shown for attacking the RRT’s finding that if the applicants feared a repeat of harassment from thugs as experienced, they could live in another Colombo neighbourhood where they were not known.  Mr Karp expressly accepted that this finding, unless successfully challenged, independently supported the RRT’s ultimate conclusion that it was not satisfied that the applicants had a well-founded fear of persecution for a Convention reason if they were to return to Sri Lanka.

51                  Mr Gageler said he had some difficulty in following the attack on the finding.  I must confess that I shared the difficulty.  I have set out earlier the submission as I followed it ([47]).

52                  It cannot be said that the RRT failed to take into account the wife’s claim that she  would suffer harm because she is a Tamil or because she is married to a Sinhalese.  The RRT considered and specifically rejected each of these claims.  In this context, it examined the wife’s evidence and considered relevant country information.  It was not satisfied that people of the Tamil race had serious problems in Sri Lanka because of their race or because they were automatically imputed to have a pro-LTTE opinion.  The RRT also found that mixed marriages were not uncommon in Colombo and that the evidence did not suggest that the parties to such a marriage would have pro-LTTE opinions attributed to them.

53                  Mr Karp did not point to any claim made by the applicants to the effect that they would feel obliged to assist Tamils if they were to return to Sri Lanka.  In these circumstances, it is hard to see how the RRT could have been obliged to take such a possibility into account.  Indeed, as Mr Gageler pointed out, any such claim would have been inconsistent with evidence given by the wife to the first RRT, to the effect that she herself had never supported a Tamil cause (although her mother had).  On the contrary, the wife’s evidence was that both she and her husband were supporters of the UNP.

54                  At most, the applicants’ attack on the RRT’s relocation finding amounted to an invitation to review the merits of a factual finding.  This cannot establish jurisdictional error on the part of the RRT.

The finding that the Applicants did not have a well-founded fear of persecution for a Convention reason

55                  In view of the conclusion I have reached in relation to the relocation finding, it is not strictly necessary to address the applicants’ other submissions on the question of jurisdictional error.  In my opinion, however, those submissions also lack substance.

56                  The submission that the RRT misconceived the concept of “persecution” for the purposes of the Convention was principally directed at the RRT’s finding that the applicants were not harmed by the “isolated incidents” that occurred during the two year period during which they lived at Wattala.  Mr Karp contended that the RRT simply ignored the possibility that the incidents caused psychological harm to the applicants.  In other words, the RRT had assumed that harm, in order to constitute “persecution” for Convention purposes, had to be physical harm.

57                  Mr Gageler fairly conceded that if the RRT had defined “persecution” to exclude conduct that inflicted only psychological harm on the victims it would have committed a jurisdictional error of law in the sense discussed in Craig v South Australia.  He submitted, however, that the applicants, although saying that they had been distressed by the various incidents, never claimed, whether in their summary document or otherwise, that the rock throwing at their house or the threats made against them had inflicted lasting psychological harm on them.  According to Mr Gageler, the RRT had not made the error attributed to it; it had merely made findings dealing with the claims made by the applicants.

58                  I accept the Minister’s submission.  The RRT, which recounted the applicants’ claims at some length, clearly understood and, indeed, found that the applicants had been distressed by these incidents at the time they occurred.  It could hardly be otherwise.  A fair reading of the reasons suggests, however, that when the RRT found that the incidents had not caused harm to the applicants, it meant they had sustained neither physical harm nor emotional harm over and above short-term distress and the subjective fear of persecution to which the applicants had referred in their various statements and submissions.  The RRT did not err in its interpretation of the concept of persecution.

59                  The applicants’ remaining argument rested on the proposition that the RRT commits jurisdictional error if it fails to consider all of the claims advanced by the applicants.  Included in this proposition, so Mr Karp argued, is the requirement that the RRT consider all of the substantial claims and information put forward by the applicants and that the RRT do so by considering the material as a whole.  I am prepared to assume that the authorities go this far, although it is unnecessary to decide whether or not they do: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 294-295, per Kirby J (concurring); Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, at 577-578 (joint judgment); Sellamuthu v Minister for Immigration and Ethnic Affairs (1999) 90 FCR 287, at 292-293, per Wilcox and Madgwick JJ (cases decided under the now-repealed Part 8 of the Migration Act).

60                  In my opinion, the RRT complied with the requirement identified by Mr Karp.  The RRT was faced with a long list of confusing and, in some respects, inconsistent claims.  It addressed those claims by analysing them in chronological order.  The claims referable to the period during which the applicants lived at Ragama mainly concerned the wife’s fear of persecution simply by reason of the fact that she is a Tamil.  The claims arising out of the events at Wattala mainly concerned the applicants’ contention that they feared persecution by reason of imputed political opinion.  The RRT addressed each set of claims and made findings about them.

61                  In the last substantial paragraph of its reasons (reproduced at [43] above) the RRT fairly summarised the entirety of the applicants’ claim.  The RRT concluded that, for the reasons it had already outlined at length, it was not satisfied that they had a well-founded fear of persecution.  This paragraph shows, in my view, that the RRT did consider the “totality of the circumstances” (Minister v Guo, at 578) in reaching its conclusion.  In the words of Kirby J in Minister v Wu, at 295, the RRT “appears to have stood back from the particular grounds and considered the case in its entirety”.  The applicants’ contention must fail.

conclusion

62                  The application must be dismissed, with costs.

63                  I add one comment.  It is now five and a half years since the applicants lodged their application for a protection visa.  It took three years and eight months for the application to be determined by the delegate and the first RRT.  The reasons for this delay were not canvassed before this Court.  I therefore do not know why it took so long to process the application.  It is also true that additional delays have been occasioned by the need for the matter to be reconsidered by the RRT, following orders to that effect made by consent in this Court in September 2000.  But the additional delays pale in comparison with the time taken by the delegate and the RRT to determine the initial application.  It would seem unfortunate, assuming that the applicants themselves were not responsible for the delays in processing their application, that they and their two children (now aged eleven and nine, respectively), having lived in Australia for five and a half years, face removal to Sri Lanka.  All this Court can do, however, is rule on the case presented to it.

Associate:

Dated:              28 March 2002