A277 of 2002 v Minister for Immigration &Anor
[2005] FMCA 1499
•18 October 2005 (Note no further submissions received within the 35 day period)
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A277 of 2002 v MINISTER FOR IMMIGRATION &ANOR | [2005] FMCA 1499 |
| MIGRATION – Review of decision of Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse to grant a protection visa – no reviewable error disclosed – applications dismissed. |
| Federal Court of Australia Act 1976 (Cth) Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) |
| VBC v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 533 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 242 Muin v Refugee Review Tribunal (2002) 76 ALJR 966 NADR v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 167 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v the Commonwealth (1999) 197 CLR 510 Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 QAAC v Refugee Review Tribunal (2005) FCAFC92 |
| Applicant: | APPLICANTS A277/2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 676 of 2004 |
| Judgment of: | Hartnett FM |
| Hearing date: | 17 August 2005 Orders made as follows. |
| Delivered at: | Melbourne |
| Delivered on: | 18 October 2005 (Note no further submissions received within the 35 day period) |
REPRESENTATION
| Counsel for the Applicant: | Mr P.F.J. Condliffe |
| Solicitors for the Applicant: | Pushpa Hettiarachi & Associates |
| Counsel for the Respondent: | Mr Gray |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS MADE 17 AUGUST 2005
Within 14 days the solicitors for the respondent provide to the solicitor for the applicant a copy of the cables referred to in the delegate’s decision.
Within 28 days the applicant file and serve any further submissions sought to be relied upon.
Within 35 days the respondent file and serve any further written submissions in reply.
ORDERS MADE 18 OCTOBER 2005
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $8,500
There be liberty to the parties to apply as to order number 2 herein on or before 25 October 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 676 of 2004
| APPLICANTS A277 OF 2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
History
This application commenced in the High Court of Australia, Adelaide Office of the Registry, with the proceeding being remitted to the Federal Court of Australia by order of Hayne J on 7 February 2003. The matter was then transferred to the Victorian Registry of the Federal Court of Australia by order of Selway J on 13 June 2003 and, on 2 June 2004 North J pursuant to section 32AB(1) of the Federal Court of Australia Act 1976 (Commonwealth), transferred the proceedings to this Court.
The applicants applied to the High Court for an order nisi for writs of Certiorari, Mandamus and Prohibition on 4 November 2002. By that application they sought to challenge a decision of the Refugee Review Tribunal (the tribunal) that had been handed down on 26 October 2001. Prior to making this application to the High Court the applicants had applied for review of the tribunal decision in the Federal Court as referred to in paragraph number 4 of these reasons.
The applicants are a husband, wife and their children and all are citizens of Sri Lanka and of Sinhalese ethnicity. Their religion is Buddhist. They arrived in Australia on 25 September 1999 and on
3 October 1999 lodged an application for a protection (class AZ) visa. On 16 February 2000 a delegate of the first respondent refused to grant protection visas to the applicants. On 7 March 2000 the applicants applied to the Refugee Review Tribunal for a review of the delegate's decision. The hearing before the tribunal was conducted on
20 September 2001 and on 26 October 2001 the tribunal handed down its decision affirming the decision of the delegate to refuse to grant protection visas.
On 23 November 2001 the first applicant being the husband filed an application seeking review of the decision of the tribunal. That application was filed in the Federal Court of Australia. On 29 April 2002 by order of Marshall J that application was dismissed (VBC v The Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 533). On 17 May 2002 a notice of appeal was filed with the Full Federal Court of Australia with such appeal being discontinued by the applicant on 11 November 2002.
On 4 November 2002, and prior to the withdrawal of the Full Court appeal, the applicants applied to the High Court of Australia seeking writs of Prohibition, Certiorari and Mandamus. The remittal by Hayne J occurred as described above and on 15 April 2003 Mansfield J ordered the applicants to file and serve a notice of motion seeking an extension of time within which to file proceedings.
This Court has jurisdiction under section 39B of the Judiciary Act 1903 and Part 8 of the Migration Act 1958 (Commonwealth) (the Act).
The applicants claim to fear persecution from the Sri Lankan authorities on the basis that the applicant husband was a strong supporter of the United National Party (UNP) and a supposed supporter of the Liberation Tigers of Tamil Eelam (LTTE). He claimed that when the UNP lost power the applicants were targeted by political rivals. The applicants claim that the husband built a house using Tamil labour and the house was sold to Tamils and later used as a location to make ammunition for the LTTE. They claim that the husband was detained and interrogated by the security forces. The applicants also claim the husband was targeted by LTTE terrorists who accused him of providing information to the security forces.
The Tribunal
The Tribunal, as accurately summarised by Counsel for the first respondent in contentions filed 12 September 2003:
a)did not accept that the husband had been harassed, detained or threatened for his political or imputed political opinion or for any Convention reason. It did not find his accounts of the critical events persuasive or, ultimately, credible;
b)accepted that the husband had business connections with the UNP but did not accept that these connections, or the husband's overall loyalty to the previous government, gave the husband a political profile such that he was targeted by the opposition. Even if wrong on this point the incidences of violence to which the husband referred occurred over a decade ago and there was no real chance of violence in the reasonably foreseeable future;
c)did not accept that the husband's former UNP contacts or support caused him to have a persisting profile as an opponent of any current political parties;
d)accepted that some of his neighbours may have turned against the husband and abused him for employing Tamils and selling property to them, but did not accept that this amounted to persecution;
e)did not accept that the authorities would have suspicions about the husband because he sold a house to Tamils. The Tribunal did not accept that the incident of detention and interrogation had occurred at all or that the husband faced continuing attention from the security forces. It followed that there was no reason for the LTTE to suspect him of betraying information to the security forces;
f)was not satisfied that the husband had a well-founded fear of persecution in Sri Lanka for any Convention reason. Neither the wife nor children made claims of their own with the result that there was no basis on which to find that any of the applicants faced a real chance of Convention-related persecution.
Anshun estoppel
The respondent has during the course of the proceedings raised issues of time limits and requirements for enlargement of time that were not pressed by the respondent on the hearing of the matter.
Likewise, the submissions based on the principles of res judicata were not advanced. However, the respondent claimed that the principle of Anshun estoppel arose in the proceedings. The reason for that submission was the earlier proceeding before Marshall J wherein it was said by the respondent that the Court was required to form an opinion and pronounce a judgment in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598 and 602). The respondent argued that there were not ‘special circumstances’ which existed to permit the applicants to raise in these proceedings matters even if unreasonably omitted in the earlier proceedings. That was that the Court should not exercise in favour of the applicants its general discretion to allow an issue to be now raised because justice did not require the non-application of the general principle (Wong v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 242 at [37] and [39]). I find it was unreasonable for the applicants not to have advanced their full claim in the original proceedings before Marshall J in the Federal Court and that no ‘special circumstances’ exist which would relieve the applicants of the ordinary operation of the Anshun rule. No material was before the Court to advance the case of ‘special circumstances’ existing and there appears no reason for the issues raised in these proceedings not being raised in the earlier proceedings.
Consideration
Even if I were wrong in that conclusion, I have determined following a consideration of the substantive grounds that the applicant must fail there being no jurisdictional error for the following reasons:
a)the draft order nisi is unparticularised. It does not allow a determination of the basis upon which the Tribunal decision is challenged. The applicants' contentions of fact and law however allege that the Tribunal decision was infected by three jurisdictional errors all of which relate to the Tribunal's use of country information;
b)the applicants claim that the Tribunal
i)breached the rules of natural justice at the hearing on 20 September 2001 because:
They thought that all of the cables that had been before the primary decision-maker were before the RRT. They now believe that only one (cable CX 3439 of 20 December 1996) was.
The applicants contend, in purported reliance upon the decision of the High Court in Muin v Refugee Review Tribunal (2002) 76 ALJR 966, that:
They assumed this material was before the RRT and that the RRT had it to mind and that the applicants did not make further submissions in support of those parts of the eight cables, that supported their case, because they believed there was no need to.
ii)breached the rules of natural justice by failing to inform them that it intended to have regard to pieces of country information other than those referred to by the delegate;
iii)breached section 424A of the Act by failing to inform them that it intended to have regard to pieces of country information other than those referred to by the delegate.
iv)The respondent submitted that there was no merit in any of the grounds relied upon by the applicant.
c)in essence, the applicants failed because of the Tribunal's findings in relation to their credit. The Tribunal is entitled to make such findings on the material that was before it. It is not a matter for this Court to challenge those findings. In NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 167-169 the Full Federal Court said:
The second ground of appeal was that the primary judge erred in not finding an error of law in the credibility finding of the Tribunal. The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272] for the Court to have engaged in a merits review. Furthermore there is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact: Abebe v the Commonwealth (1999) 197 CLR 510 at [137].
d)the Tribunal was obliged only to set out the material on which its findings were based. It was not obliged to refer to information that was before it but upon which it ultimately did not rely. There is no reason to assume that all of the material that was actually before the Tribunal was considered by the Tribunal to be relevant to its decision. I accept the submissions of counsel for the first respondent that the applicant has not established the elements of a procedural fairness claim based on favourable country information of the type that succeeded in Muin v Refugee Review Tribunal (2002) 76 ALJR 966;
e)I accept the analysis of counsel for the respondent of the decision in Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57. A majority of that Court held that failure to disclose and invite an applicant to comment upon, country information could, in some circumstances, constitute a breach of the rules of procedural fairness. The Court did not hold that the applicants have a right to respond to all of the country information upon which the Tribunal relied. Rather, that there should be the application of the well‑established rule of procedural fairness that a decision‑maker must bring to an applicant's attention the critical factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it. If information that is contained in general country information is so significant that it is the "critical factor" on which the decision is likely to turn it must be disclosed.
McHugh J said at 97, paragraph 141:
In some cases, exercise of the power, although conditioned by the rules of natural justice, will not require that the applicant had an opportunity to comment on the material. Examples of material that would not require comment by the applicant would include non‑adverse country information, favourable or corroborative information in the public domain, and information based on the circumstances already described in the application. But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material. An example is where the delegate proposes to use new material of which the applicant may be unaware and which is, or could be, decisive against the applicants' claim for refugee status.
f)adverse country information must be disclosed to an applicant if that information is of ‘crucial importance’ ‘determinative’ or ‘decisive’ of the application for review and if the applicant was not aware of that information. However the reasons of the Tribunal indicate that no country information before the Tribunal was ‘decisive’ as to the decision rather it was the ‘unsatisfactorily vague’ nature of the applicants’ evidence;
g)I have considered the affidavits of Pushpa Hettiarachi Solicitor for the applicant and Michael Brereton Solicitor for the respondent, the latter filed 22 August 2005 and note in particular paragraph 6 of Mr Brereton’s affidavit as to his satisfaction that there is only one report CX 20894 and the noting of CL 3439 as a separate report (in the delegate’s decision) to be an error;
h)the applicants further submitted that had they been aware of the cables referred to in the decision of the Tribunal, they would have produced evidence or material to contradict the contents or address issues contained therein directly in particular as to whether it was almost unheard of that a Sinhalese would assist the LTTE (cable 32168). That question however was considered in the delegate’s decision and raised at the hearing before the Tribunal. As a consequence, the applicants were aware that it was an isue in the proceedings and no procedural unfairness was occasioned to them. Otherwise no particulars or basis for how a particular piece of country information was perceived to be adverse and relevant to the decision is placed before this Court;
i)the applicants claimed to have been misled by the statement of the Tribunal that the relevant material had been considered. That is not a matter of agreement between the parties. There is no evidence before me that the applicants were subjectively misled into not making submissions and advancing information and evidence on a point favourable to them.
Section 424A of the Act deals with the provision to applicants of adverse information. Relevantly, it provides:
424A(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member;
or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
j)in QAAC of 2004 v Refugee Review Tribunal (2004 FCA 1322) Spender J construed s.424A(3)(a) as meaning that the RRT was not under an obligation to provide country information to the appellant and the applicants which was not specifically about them or another person. He concluded that the effect of s.424A was that that meant there was no requirement upon the RRT in complying with its obligation of natural justice to bring the information to the attention of the appellant and the applicants. This reasoning was affirmed by the Full Court of the Federal Court on appeal. There was no cumulative requirement that it be about a class of persons. In any event, such country information in this case was not the reason or part of the reason for affirming the decision under review.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Anna French
Date: 18 October 2005
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