FEDERAL COURT OF AUSTRALIA Serpanchy v Minister for Immigration & Multicultural Affairs [2002] FCA 289 IMMIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – whether decision of Tribunal involved a reviewable error – no question of principle Migration Act 1958 (Cth) Migration Legislation Amendment (Judicial Review) Act 2001 Minister for Immigration and Multicultural Affairs v Yusuf and Israelian (2001) 180 ALR 1, referred to EVERARD ANTHONY SERPANCHY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V732 OF 2001 MARSHALL J MELBOURNE 18 MARCH 2002 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V732 OF 2001 BETWEEN: EVERARD ANTHONY SERPANCHY APPLICANT AND: MINISTER FOR IMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 18 MARCH 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs, including reserved costs, to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V732 OF 2001 BETWEEN: EVERARD ANTHONY SERPANCHY APPLICANT AND: MINISTER FOR IMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE: 18 MARCH 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the RRT"). 2 On 22 June 2001, the applicant was advised of the RRT's decision dated 31 May 2001 in which the RRT affirmed the decision of a delegate of the respondent not to grant protection visas to the applicant and members of his family. 3 The applicant, his wife and their three children entered Australia on 4 April 1997. They are citizens of Sri Lanka of Burgher ethnicity who are Roman Catholics. On 9 May 1997, the applicant and his wife lodged applications for protection visas with the respondent's department. On 23 October 1997, a delegate of the respondent refused the applications. On 29 October 1997, the applicant and his wife applied to the RRT for a review of that decision. 4 It was not until 24 July 2000 that the RRT advised the applicant that it had reviewed the matter "on the papers" and was unable to make a favourable decision by reference to that information. The RRT invited the applicant to attend a hearing before it. The RRT hearing took place on 11 October 2000. 5 The application to review the decision of the RRT in the Court was filed on 17 July 2001 and hence falls to be determined in accordance with the Migration Act 1958 (Cth) ("the Act") as it stood prior to the amendments effected by the Migration Legislation Amendment (Judicial Review) Act 2001. 6 The application, as amended on 28 September 2001, in a document filed on 1 October 2001, raised the following grounds of review: · the decision involved an error of law, being an incorrect interpretation of the applicable law under s476(1)(e) of the Act in that the RRT failed to properly apply the test of well founded fear of persecution in the Refugees Convention, "by relying on the general principle that Burghers in general do not suffer serious discrimination in Sri Lanka rather than asking the question whether the applicant faces a well founded fear of such persecution/discrimination upon return to Sri Lanka". · under s476(1)(b), (c) and (e) of the Act the RRT: 1) did not have jurisdiction to make the decision; 2) the decision was not authorised by the Act; and 3) the decision involved an error of law by: "(relying) upon irrelevant material and (identifying) a wrong issue in that it refers to the applicants as Burghers and therefore it is implausible that they would be of interest to the authorities. Likewise, by relying on the delay in leaving the country being inconsistent with their fear." 7 The applicant and his wife claimed before the RRT that they will be persecuted on account of their imputed political opinion if they return to Sri Lanka on account of their previous association with a Tamil family to which they rented part of their house in the Colombo suburb of Dehiwela in May 1996. 8 The applicant and his wife claimed that after two large bombs exploded at the Dehiwela railway station on 24 July 1996 they found themselves under pressure to get rid of their Tamil tenants. 9 In particular the following matters were advanced: · on 2 October 1996, they received a threatening telephone call in which they were accused of working for the Liberation Tigers of Tamil Eelam ("the LTTE"). · on 24 November 1996, the tyres on the applicant's car were slashed and unknown people came to their house, threatened to harm them and accused them of being LTTE sympathisers. · on 15 December 1996, their dog was killed and death threats were painted on the exterior wall of their house; with attempts to report those matters to police being unsuccessful. · on 27 February 1997, three men came to their house to demand protection money which was paid. · on 11 March 1997, the three men returned. They were refused payment and then threatened the applicant and his wife. · on 30 March 1997, the applicant was assaulted in his home by two men in uniform and was accused of aiding an LTTE suspect to escape. The applicant's wife was sexually assaulted on the same occasion. · they have been traumatised by the above events and fear persecution by the security forces if they return to Sri Lanka. 10 The RRT accepted the following matters concerning the applicant and his wife: · they are citizens of Sri Lanka. · they are Burghers who lived in Colombo and do not wish to return to Sri Lanka. · they have a subjective fear that if they return to Sri Lanka they will be persecuted on account of imputed political opinion. · they rented part of their home to a family friend of Tamil ethnicity and his family in May 1996 and registered the fact of their stay with the police at Dehiwela. · they may have been subject to surveillance by the authorities after the railway station bombing. · they may have been questioned at their home because they had Tamil tenants. 11 Every other allegation raised by the applicant and his wife was not accepted. Amongst the allegations not accepted were the following ones which were material to the applicant's case before the Court: · the applicant and his wife were tortured for information about their Tamil boarders. · the applicant and his wife were harassed because they were suspected of helping the LTTE. · the police refused to assist the applicant and his wife to the extent that the applicant was prevented from entering the Dehiwela police station. 12 The RRT observed that the applicant and his wife "held visas to come to Australia from February 1997 however they did not leave until April 1997". It found that "their delay in leaving the country is inconsistent with their fear of persecution". 13 At p 9 of its reasons for decision the RRT dealt with the position of Burghers in Sri Lanka. It said as follows: "Sri Lanka's Burghers trace their descent to the golden age of European exploration and until the mid twentieth century they were a colonial upper class. Independence in 1958 and the post-colonial policies robbed the Burghers of their status, and the distinction bestowed through speaking the queen's English. Most have since sought to leave Sri Lanka. Many of those who left since the mid 1950s have come to Australia. The National Language Policy of post-independent Sri Lanka made Singhalese the only official language, and this removed the status of English as an official language. This decision further adversely affected the Burghers. By 1993, there were reckoned to be only ten thousand Burghers in Sri Lanka, many of them elderly (see Suzanne Goldenberg 1993), 'Island Burghers Rest Cocooned in history' The Guardian, 18 September 1993, p 14). There is no evidence that the Tribunal has seen to suggest that Burghers have played a part in the struggles for power and self-assertion in contemporary Sri Lanka. They have formed a Dutch Burgher Union, with a social and historical function, but no political party; are "not caught up in the JVP insurrection; and, being located largely in Colombo, have been left out of regional disputes" (supra)." 14 The Burgher ethnicity of the applicant and his wife was referred to by the RRT materially in the following contexts: · Burghers were unlikely to be of interest to the authorities. · Burghers would be unlikely to be imputed with an LTTE profile, even less so than Sinhalese. · according to "the country information", "the prospect of a Burgher assisting the LTTE is generally considered to be amusing". · Tamils may encounter difficulties with police refusing to assist them but "there is no evidence that this applies to Singhalese (sic) or Burghers", according to advice from the Department of Foreign Affairs and Trade ("DFAT"). · DFAT cables were relied upon by the RRT to find that "it is inherently unlikely that Burghers would be accused of assisting the LTTE". · Burghers in general do not suffer serious discrimination in Sri Lanka. · Burghers "are a diminishing minority and are rarely involved in the struggles between Tamils and Singhelese (sic) or between political parties in Sri Lanka". · The applicant and his wife "do not face a real chance of persecution for reasons of their Burgher ethnicity". 15 It was submitted on behalf of the applicant that the RRT relied upon irrelevant material and identified a wrong issue in the sense referred to by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf and Israelian (2001) 180 ALR 1 at [82] where their Honours said: "The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law." 16 The applicant's counsel submitted that the Burgher ethnicity of the applicant and his wife was an irrelevant consideration for the RRT to take into account. It was also put that it was irrelevant that Burghers have not been of interest to the police. It was contended that the primary consideration of the RRT should have been the presence of the Tamil boarders. 17 Those submissions are rejected. There was no reason for the RRT not to take into account the ethnicity of the applicant and his wife. The submission falls at the first hurdle because the allegedly irrelevant consideration relied upon was relevant. The RRT's decision records at p 4 that the applicant and his wife "claimed they were discriminated against because they belonged to the minority Burgher group, life became difficult because of the conflict between Sinhalese and Tamils". Further the RRT did take into account the presence of the Tamil boarders. Some criticism was made of the RRT for not investigating the status of the Tamil tenants or their profile. This aspect of the claim was first focussed upon by counsel for the applicant in oral submissions today. It is yet another example of an impermissible attempt to re-canvass the merits of the RRT's decision. 18 The applicant's counsel also submitted that it was not relevant to the claim for a protection visa that the applicant and his wife delayed coming to Australia until April 1997. I see no reason to support that view given that a delayed departure which is unexplained may relate to the genuineness of the alleged fear of persecution in a country of origin. 19 The issues raised in the three preceding paragraphs essentially cavil with the RRT's fact finding and amount to a disguised attempt to seek merits review in the Court. An additional issue raised by counsel for the applicant, orally today, cavilled with the RRT's failure to accept an allegation that the applicant and his wife were visited fortnightly by authorities. The RRT was not bound to accept that evidence and its failure to accept it does not mean that it failed to take into account a relevant consideration. 20 The applicant's counsel also submitted that the RRT did not properly apply the test of "well founded fear" referred to in Art 1A(2) of the Refugees Convention. It was contended that the RRT did not engage in the "required speculation" whether there was a real chance of persecution. The error of the RRT was said to be its reliance on "the general principle" that "Burghers in general" do not suffer serious discrimination in Sri Lanka, "rather than asking whether the applicant faces a well founded fear of persecution/discrimination upon return to Sri Lanka". 21 This submission is also misplaced. The RRT did undertake the "required speculation" whether the applicant and his wife had a well founded fear of persecution (ie. a real chance of persecution) if returned to Sri Lanka. The RRT specifically found that the applicant and his wife do not face a real prospect of persecution on account of their Burgher ethnicity (see [14] above). On the question of imputed political opinion, the RRT said at p 15 that it was satisfied that "there is no real chance that the applicants will face persecution for reasons of imputed opinion for the LTTE ... ." This conclusion was not surprising having regard to the matters referred to at [11] above which were not accepted by the RRT. 22 Each contention raised on behalf of the applicant is completely devoid of merit. The application will be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 18 March 2001 Counsel for the Applicant: Mr R G Deckker Solicitor for the Applicant: Wimal & Associates Counsel for the Respondent: Mr E Heerey Solicitor for the Respondent: Clayton Utz Date of Hearing: 18 March 2002 Date of Judgment: 18 March 2002