FEDERAL COURT OF AUSTRALIA

NAAL/2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 431

MIGRATION – application for review of a decision of Refugee Review Tribunal affirming decision of Minister’s delegate not to grant a protection visa – where applicant Sri Lankan citizen – whether Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction – no error of law demonstrated – application dismissed.

Migration Act 1958 (Cth) s 64, s 474

Judiciary Act 1903 (Cth) s 39B

NABM of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 335 applied

NAAL OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. N 1435 OF 2001

BEAUMONT J

5 APRIL 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the costs of the respondent.

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

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1                     This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 August 2001, whereby the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The application for an order of review was filed on 18 October 2001. The application therefore falls within the “privative clause” regime.

Grounds of the application

2                     The application for an order of review under s 39B of the Judiciary Act 1903 (Cth) seeks the following:

1.                  A declaration that the decision of the Tribunal is void.

2.                  An order that the Tribunal hear and determine the review that was the subject of that decision according to law.

3                     There are two grounds of the application:

1.                  That the Tribunal exceeded its jurisdiction by purporting to be satisfied that the applicant is a person who is not a refugee under the Convention Relating to the Status of Refugees (“the Convention”) in that it –

(a)                misconstrued or misapplied the meaning of the phrase “well-founded” by disregarding claims about the persecution of Sri Lankan Muslims by stating that such claims “while unlikely, may not be completely implausible”;  and

(b)               failed to have regard to all the information before it in accordance with its statutory duties; and

2.                  Constructively failed to exercise its jurisdiction by failing properly to construe and apply the Convention in that it –

(a)                misconstrued or misapplied the meaning of the phrase “well-founded” by disregarding claims about the persecution of Sri Lankan Muslims by stating that such claims “while unlikely, may not be completely implausible”, and

(b)               failed to have regard to all the information before it in accordance with its statutory duties.

Background

4                     The applicant in this matter is a citizen of Sri Lanka, born in 1977, who arrived in Australia on 27 July 1996.  On 24 July 1997 he lodged an application for a protection visa and on 4 June 1998 a delegate of the Minister refused that application.  On 29 December 2000 the applicant applied for review of that decision.  On 8 May 2001, the Tribunal affirmed the decision of the Minister’s delegate.  However, on 6 October 2001, by consent, this Court ordered that the Tribunal’s decision be set aside and the matter be remitted for reconsideration.

5                     In reconsidering the matter, the Tribunal had before it the Departmental file.  The applicant also gave oral evidence before the Tribunal.

6                     In his original application for refugee status, the applicant claimed that he was a Muslim from the Eastern Province of Sri Lanka and that he feared that he would be killed by either the Liberation Tigers of Tamil Eelam (“the LTTE”) or the Sri Lankan Army if he returned to Sri Lanka.  The applicant claimed that, in October 1992, his village was attacked by the LTTE and that his mother and sister were killed.  He claimed that he was a member of the home guard at the time of the attack and that his role was to protect the village.  Following the attack, the applicant claimed, he had spent a month in a refugee camp, during which time he gave information to the Sri Lankan Army about the members of the LTTE who had attacked the village.  He also claimed that the LTTE had ordered that the member of the home guard who identified those who attacked his village be killed.

7                     After leaving the refugee camp, the applicant claimed, he had gone to work in a rice mill.  During this time, in 1996, he claimed that he was falsely accused, by certain Tamil employees of the mill, of smuggling arms to the LTTE through the mill.  As a result, the applicant claimed that he was arrested, detained and tortured by the Sri Lankan Army and accused of being a “Tiger”.  He claimed that he was only released, five days after his arrest, because the mill owner paid a bribe.

8                     The applicant claimed that he left Sri Lanka for fear of persecution at the hands of the LTTE or the Army.

THE Tribunal hearing

9                     At the hearing before the Tribunal, it was put to the applicant that, although he had stated in his application that he feared persecution by the LTTE following his identification of the LTTE activists who destroyed his village in 1992, he had not been harmed by the LTTE in the four years between that time and 1997, when he left Sri Lanka.  The applicant was asked why he claimed he was at risk now.  He responded that during those four years he had only left the mill to go to the mosque and that he was not known by his proper name at the mill.  In this way, he said, he had avoided harm from the LTTE.  The applicant claimed that the LTTE now suspected him of informing on their arms smuggling operation and had come looking for him in Columbo.

the Tribunal’S DECISION

10                  The Tribunal prefaced its process of fact-finding with an unexceptional statement of the legal principles in this area as settled by the course of High Court authority.

11                  In its decision, the Tribunal referred to a considerable amount of independent evidence and “country information”.  On the basis of this “country information”, the Tribunal found that in Sri Lanka, Tamils and Muslims are quite distinct groups.  As the applicant is a Muslim, the Tribunal found that it was not satisfied that the applicant would be identified as a Tamil in Sri Lanka.

12                  The Tribunal also found that it was “unlikely, though not completely implausible” (emphasis added), that the authorities would suspect a Muslim of supporting or smuggling arms for the LTTE. In this regard, the Tribunal noted that the applicant had given evidence that, although the manager and other employees of the mill were Tamil and that the manager of the mill was an LTTE activist, it was the applicant who was the suspect.  (I interpolate here that, in my view, the Tribunal was clearly using the adjective “implausible” in its ordinary dictionary meaning of “not having the appearance of truth of credibility” (emphasis added) (Macquarie Dictionary, 2^nd ed.).)

13                 The Tribunal found that it did not believe the applicant’s version of events in this regard.  The Tribunal member found that he was not satisfied that the applicant was suspected of smuggling arms for the LTTE, nor that he was detained and mistreated because of any such suspicion, nor that the Army was seeking him in Columbo (as the applicant had claimed).  As a result, the Tribunal was not satisfied that the applicant was under any risk of persecution at the hands of the Sri Lankan authorities.

14                  In relation to the applicant’s claims regarding his fear of persecution at the hands of the LTTE, the Tribunal was prepared to accept that the applicant’s village may have been attacked in 1992.  However, the Tribunal noted that the LTTE had not harmed the applicant in four years following that event.  Further, in relation to the applicant’s later claim, that now the LTTE also suspected him of informing on their arms smuggling operation, the Tribunal reiterated that it did not find credible the applicant’s version of events in relation to this issue.

15                  The Tribunal also found that, while there have been some outbreaks of communal violence in Sri Lanka, there was no evidence to suggest that the Sri Lankan authorities would deny Muslims adequate protection.

16                  As a result, the Tribunal was not satisfied that the applicant faced a well-founded fear of persecution for a Convention reason were he to return to Sri Lanka.

CONCLUSIONS ON THE APPLICATION FOR JUDICIAL REVIEW

17                  In a full written submission, elaborated orally, counsel for the applicant sought to demonstrate that the Tribunal had misunderstood the test for its “satisfaction” for the purposes of s 65(1) of the Migration Act 1958 (Cth) (“the Act”), as a platform for a submission that there had been here a constructive failure to exercise its jurisdiction.

18                  As indicated in the course of argument, in my opinion, the argument breaks down at the threshold.  In my view, the phrase “not completely implausible” should be understood, as mentioned, to have its ordinary dictionary meaning.  It should not, I think, be taken to mean, as the applicant contended, that in expressing its overall conclusion, the Tribunal had any real doubt.

19                  Again, as also indicated in argument, the factual context in Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594, much relied on by the applicant, is clearly distinguishable.

20                  In my view, the applicant now seeks, in substance, to re-agitate the facts and the merits, impermissibly.  There was no failure, constructive or otherwise, to exercise jurisdiction.  It must follow for the reasons I gave in matter NABM of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 335 that, in any event, s 474(1) of the Act validated the Tribunal’s decision.

ORDERS

21                  The application is dismissed, with costs.

Associate:

Dated:                April 2002