FEDERAL COURT OF AUSTRALIA

VABQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 166

MIGRATION – no error disclosed – appeal dismissed.

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs 193 ALR 449, referred to

Plaintiff S157 v Commonwealth of Australia [2003] HCA 2, referred to

Applicant NALU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 31, applied

VABQ -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V751 OF 2002

MARSHALL J

MELBOURNE

7 MARCH 2003

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs of the appeal, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of a Federal Magistrate. The appellant appeared in person, assisted by a friend and an interpreter. The judgment under appeal was delivered ex-tempore on 5 September 2002. The proceeding before the Federal Magistrate was an application for review of a decision of the Refugee Review Tribunal (“the RRT”).

2                     The appellant entered Australia on 5 November 2001 as the holder of an entertainment visa which was due to expire on 30 November 2001. He previously resided in the town of Panadura in the Western Province of Sri Lanka. His entertainment visa was cancelled on the day of his arrival when the sponsor of the dance group, with which the appellant travelled to Australia, subsequently withdrew sponsorship of him. The appellant admitted to officers of the respondent’s department that he was not a genuine entertainer. The appellant was then placed in immigration detention. On 9 November 2001 the appellant applied for a protection visa.

3                     In his application for a protection visa the appellant claimed to fear persecution if returned to Sri Lanka on account of imputed political opinion. He claimed to be a member of the Janatha Vimukthi Peramuna (“the JVP”), a political party in Sri Lanka. He said that he was enrolled in the JVP by his family without his knowledge. The appellant claimed that he tried to withdraw as a member of JVP when he found out he was a member, but that the JVP would not permit him to do so, because of a fear that he would reveal “all their secrets”. He said that he had been hit by party members and had had to go into hiding. The appellant alleged that the police would not assist him so he paid a man to organise to bring him to Australia. He claimed that he would be physically harmed or killed if returned to Sri Lanka “because the JVP do not want me to leave the party”. He said that they were “desperate that the party secrets not be revealed to anyone else”. He further claimed that when the JVP learned that he had complained to the police, the JVP became angrier and threatened him with death.

4                     The day before applying for a protection visa, the appellant was interviewed by a departmental officer. In that interview he claimed that he had gone into hiding from the JVP and had also joined the Sri Lankan Freedom Party, of which his uncle is an official. He said he regularly received anonymous death threats.

5                     The appellant was further interviewed on 19 November 2001. In that interview he claimed that a friend of his involved him in JVP activities. He said that he was “involved in rallies, seminars and flag days”; but that after some time he came to be harassed by JVP members who forced him “to bring money, clothes or other items from my house.” He said that they did not allow him to do his job but tried to get work out of him. He claimed that he then decided to leave the JVP, but that he was not allowed to resign and was threatened with death. The appellant remarked that the JVP was afraid that he would divulge political secrets to other parties, especially given that his uncle was in the Sri Lankan Freedom Party. He said that unidentified people had come to his house and had damaged furniture. The appellant claimed that he could not continue with his education because of threats to his life.

6                     In a decision dated 6 December 2001, a delegate of the respondent rejected the appellant’s application for a protection visa. On 13 December 2001 the appellant applied to the RRT for a review of the decision of the delegate. On 13 February 2002 the RRT affirmed the decision of the delegate not to grant the appellant a protection visa. Earlier on 8 February 2002 the RRT had afforded the appellant an oral hearing.

7                     At the oral hearing the RRT recounted the claims which the appellant had made to departmental officials in November 2001 and also referred to its discussion with the appellant. It noted that the appellant had provided documents obtained by his father in Sri Lanka. Those documents included an extract from the information book of Panadura Police Station of 16 April 2001, dealing with a complaint made by the appellant’s father about several unidentified persons coming to his house looking for the appellant to engage him in political activities. There were further extracts to similar effect from the CIB book in November and December 2001. The appellant also provided a copy of a complaint made on 10 October 2001 recorded in the official diary of the local village head about threats from a leftist political party, which resulted in the appellant having to stay with his paternal uncle.

8                     The RRT noted that the JVP was formerly a proscribed political party but is now a legal political party, having contested the 1994 elections and more recently having entered into an accommodation with the ruling party, the People’s Alliance.

9                     The RRT made the following findings of fact:

·        the appellant’s claim that the JVP want the appellant because it is afraid he will reveal its secrets is “far fetched”;

·        the appellant does not have secrets which the JVP would be afraid that he would reveal;

·        the JVP is a mainstream political party in Sri Lanka and is no longer an illegitimate party;

·        the appellant’s father did not complain to police in the manner alleged;

·        the claim that the appellant or his father would complain to the police about the appellant being forced to join the JVP is far fetched;

·        the purported extracts from the police record books and the village head’s diary were contrived in support of the appellant’s claim for a protection visa;

·        given the foregoing findings, the appellant’s claims that he had to live with relations to avoid harassment are far fetched;

·        the appellant lived at his parent’s house where he completed his exams for his A levels, shortly before leaving Sri Lanka for Australia;

·        the appellant was duped by a person who made him believe that he was able to enter Australia to work upon the payment of money to that person;

·        the appellant was part of the Sinhalese majority and was not fleeing from anything when he left Sri Lanka;

·        the appellant does not have a well founded fear of persecution for a Convention reason.

10                  The learned Federal Magistrate held that the RRT had not erred in law. He considered at [23] that:

“… there is no error of law in this matter which would indicate that there has been a failure to address an issue before the tribunal or a failure to make a correct finding.”

11                  At [24] his Honour noted that irrespective of the judgment of the Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449, there was no legal error made by the RRT. His Honour then applied NAAV in dismissing the application.

12                  Having considered that there was no jurisdictional error made by the RRT, his Honour did not have to apply NAAV but did so out of an abundance of caution. His judgment did not depend on NAAV. The recent judgment of the High Court in Plaintiff S157 v Commonwealth of Australia [2003] HCA 2, (2003) 195 ALR 24, which effectively overruled NAAV, does not assist the appellant in the absence of identification of a jurisdictional error by the RRT.

13                  The effect of Plaintiff S157 was described recently by a Full Court in Applicant NALU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 31 in the following way at [13]:

“The effect of the decision of the High Court is that s 474 of the Act does not exclude consideration by the court of decisions which involve a failure to exercise jurisdiction or which involve an excess of jurisdiction conferred by the Act, as such decisions are not “ decisions made under [the] Act” for the purposes of s 474. Put shortly, s 474 does not apply to decisions which involve jurisdictional error: see, for example, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351…”

14                  The notice of appeal did not specify any grounds of appeal. The matters raised orally by the appellant in support of his appeal did not identify any jurisdictional error in the reasons of the RRT, but dealt with matters going to the merit of his application before the RRT.

15                  I carefully considered the reasons for decision of the RRT but was unable to find any jurisdictional errors in those reasons. More importantly I was also unable to discern any error in the reasons of the learned Federal Magistrate. As in Applicant NALU of 2002 at [13] with respect to the primary judge in that matter, the learned Federal Magistrate “did not identify any ground establishing any such jurisdictional error and we are satisfied that the Tribunal did not fall into any jurisdictional error.” Accordingly the appeal will be dismissed, with costs.

Associate:

Dated:              7 March 2003