FEDERAL COURT OF AUSTRALIA

WAJF v Minister for Immigration & Multicultural & Indigenous Affairs

 [2003] FCA 1102

MIGRATION –  judicial review – protection visa – Sri Lankan national – alleged involvement with political party – claimed fear of harm from opposition elements – fear of harm not accepted by Refugee Review Tribunal – application to Federal Magistrates Court for judicial review unsuccessful – no reviewable error disclosed – no appealable error disclosed – appeal dismissed – no point of principle.

Migration Act 1958 (Cth)

WAJF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W146 OF 2003

FRENCH J

26 SEPTEMBER 2003

PERTH

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

Factual History

1                     The appellant is a national of Sri Lanka who arrived in Australia without lawful authority in September 2001.  After having been assessed administratively, in accordance with procedures applying to arrivals in areas excised from the migration zone, he was found not to be a refugee.  That determination was upheld on an internal departmental review in August 2002. 

2                     On 17 September 2002, the appellant applied for a protection visa.  That application was refused on 13 November 2002.  He then applied to the Refugee Review Tribunal (‘the Tribunal’) which, on 31 December 2002, affirmed the delegate’s decision not to grant him a protection visa. 

3                     The appellant then sought judicial review in the Federal Court on 6 January 2003 and that application was transferred to the Federal Magistrates Court on 14 February 2003.  On 13 June 2003, his Honour Walters FM dismissed the application for review.  The appellant filed a notice of appeal against that decision on 1 July 2003. 

4                     The appellant’s claims were comprehensively considered by the Tribunal.  He said he is a Christian of Tamil ethnicity.  He was self-employed in Sri Lanka and had been until the time he departed for Australia.  His parents and siblings remain in that country.  The appellant says his father is a prominent supporter of the United National Party with which he had been actively involved for a long time.  He would greet visiting politicians and organise local meetings for the local Member of Parliament.  The appellant said his father would have met the local member seven or eight times in the early 1990s.  He helped his father put political posters up, put up banners and distribute pamphlets and do other odd jobs.  He was not drawn to politics himself but regarded it as his duty to help his father after his father had been injured.  At election time he and others would tell people how they should vote.  He recalled doing so during the 2000 Presidential election campaign. 

5                     After the 1996 election his father was attacked by opposition supporters with swords and batons and he was injured in that incident.  Because the family was afraid they moved to another village.  The appellant then became responsible for his father’s small business.

6                     The appellant claimed that in early 2001 there had been a fight between PA and UNP supporters in his village.  Three PA supporters had been badly injured.  The next month the appellant saw about ten to fifteen armed people making their way towards his house.  He ran home and told his father who locked the family inside.  The people tried to break into the house and set it alight.  Somebody helped the family to escape but the house was destroyed.  The following day the appellant’s mother, who was going to make a complaint to the police, was allegedly warned not to do so and told that the family would be killed if she did.  His mother went to the police but told them the fire had been an accident.

7                     Asked at the hearing whether anything had occurred between the attack on his father in 1996 and the incident in 2001, the appellant said there had been nothing major and although there had been frequent arguments he had come to no harm.

8                     The appellant said that following the 2001 incident a person visited his father and suggested that he and the appellant should leave the country.  Even though his father was the main victim of the violence the appellant feared harm as his father’s son.  The appellant said at the hearing  that he went to stay with their friend in another town for three or four months before departing on a boat for Australia.  He had had a Sri Lankan passport in his own name but claimed it was burned when his house was burned.  Subsequently he arrived at Cocos Island by boat and without a passport. 

9                     The appellant told the Tribunal that he feared that if he were returned to Sri Lanka he would be harmed by political opponents.  Even though the election is over and the UNP is in power the problems of enmity and political rivalry continue.  He said his father had trouble and that he could also face trouble for the same reason.

10                  The Tribunal also referred to country information provided by the appellant’s adviser.  The Tribunal also looked at the implications of the appellant’s Tamil ethnicity.  He told the Tribunal that he had no trouble with the police but said his father had been taken by police once and beaten.  However he did not know anything about the circumstances in which that occurred.  His father had been released after a day following the intervention of a minister.  His fear of returning to Sri Lanka related entirely to the issue of his involvement with the UNP and not to his Tamil ethnicity.

11                  In its findings and reasons the Tribunal said it accepted the appellant’s account of where he has lived and worked and accepted that he is of Tamil ethnicity.  It also accepted that he had some association with the UNP because of his father’s long support for the party.  However the Tribunal concluded that the appellant undertook practical support tasks for the party such as putting up posters but did not have any leadership role in his area in relation to the UNP.  While he might have had other people assist him in some of the tasks he undertook, this did not increase the profile or significance of what he did.  The Tribunal had regard to his apparently limited understanding of political structures in Sri Lanka evidenced in part by a confusion between ministers and members of parliament.  His evidence about the nature of the things he did for the party indicated low-level practical tasks performed in his local area.  The Tribunal also found that the evidence indicated that his father had a limited profile and that his work for the UNP was also focussed on a local area. 

12                  The Tribunal accepted that the appellant’s father was injured in the mid 1990s and that this had occurred in the context of fighting over political matters.  It was, however, some years before the appellant departed for Australia and, on his own evidence, was followed by nothing further apart from arguments until the episode in 2001.  The Tribunal did not accept that the injury sustained by the appellant’s father was material to what might happen if the appellant were to return to Sri Lanka.

13                  The Tribunal found the appellant’s evidence about what had occurred in April 2001 after the election to be unconvincing.  It was not satisfied that the destruction of his family home was other than an accident as in fact the police were told, and he did not accept that PA supporters were intent on finding the appellant to harm him by reason of his involvement with the UNP. 

14                  The Tribunal did not accept that there was more than a remote chance of the appellant facing serious harm if he were again to support the UNP upon his return to Sri Lanka.  In so saying, the Tribunal accepted that there is a high level of politically motivated violence in Sri Lanka and that the capacity and willingness of the police to address incidence of such violence is often questioned.  The Tribunal observed, however, that political leaders have campaigned against such violence and the police have said that they will act to contain it.  The police response to politically motivated violence might be uneven but the Tribunal considered that because there was a measure of police action this further limited the chance that the appellant would face serious harm arising out of any political involvement with the UNP.

15                  The Tribunal also concluded that there was no prospect of any harm to the appellant by reason of his ethnicity.  In the event it was not satisfied that there was a real chance that the appellant would face harm amounting to persecution for a Convention reason if he were to return to Sri Lanka.

16                  The learned magistrate, after summarising the Tribunal’s findings, concluded that it had given careful consideration to the appellant’s assertions and concerns and could not identify any basis upon which the Tribunal’s decision could be interfered.  There was no identifiable jurisdictional error or want of good faith on the part of the Tribunal.  The appellant had filed a notice of review which identified some pro forma grounds of judicial review without particularisation.  In the event the application for review was dismissed.

The Notice of Appeal

17                  The notice of appeal, which was hand printed, set out the following grounds:

‘2)       On 31-12-2002 the RRT handed down the decision affirming the decision of delegate of the Minister for Immigration and Multicultural Affires (sic) not to grant me a protection visa under Migrant (sic) Act 1958 (Cth)

3)         The RRT decision involved an error of law, being an error involving an incorrect interpretation of the term of “well founded fear”.

4)         The RRT failed to apply the correct test and prinsiples (sic) of relevant law arriving at its decision and that it fell into error in taking into consideration irrelevant matters and in failing to take into matter account the matters that were relevant to [illegible] to its decision, and therefore committed a jurisdictional error.

5)         The RRT wrongly understood most of my claims and the reasons for rejection of the material claims are unreasonable, irrational and illogical.  The RRT also not complied with statutory rules.

6)         The RRT failed to follow procedural fairness according the Muin and Lie cases of High Court of Australia.

7)         These errors/ jurisdictional errors by the RRT affected its decision.

8)         The Federal Court did not consider these errors which  had been made by RRT, by not considering all of my submissions to RRT.’

The Merits of the Appeal

18                  The appellant was unrepresented on the hearing of the appeal.  His oral submissions to the Court were, in substance, complaints that the Tribunal had not accepted his claims that he faced a real risk of harm if returned to Sri Lanka.

19                  Nothing was said that had any bearing on any of the grounds in the notice of appeal.  The notice of appeal itself does not particularise the grounds in any helpful way.  There is nothing in the decision of the Tribunal or of the learned magistrate which, in my opinion, would indicate appealable error.

20                  I so informed the appellant at the close of his submissions and dismissed the appeal.  For the preceding reasons the appeal is dismissed with costs.

Associate:

Dated:              10 October 2003