Applicant A153 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 676

FEDERAL COURT OF AUSTRALIA

Applicant A153 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 676

APPLICANT A153 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S 133 OF 2003

SELWAY J
13 JUNE 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 133 OF 2003

BETWEEN:	APPLICANT A153 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	13 JUNE 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicant pay the first respondent’s costs fixed at $5000, including disbursements and including the costs of the proceedings in the High Court.

3.No order for costs of the second or third respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 133 OF 2003

BETWEEN:	APPLICANT A153 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT

JUDGE:	SELWAY J
DATE:	13 JUNE 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for judicial review remitted to this Court from the High Court.  The application seeks a writ of certiorari to quash a decision of the Refugee Review Tribunal (the Tribunal) made on 18 June 2002, and other consequential orders.  The decision of the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The first respondent has applied to dismiss the proceedings under O 20 r 2 of the Federal Court Rules on the basis that no reasonable cause of action is disclosed.  I accept that such an order should only be made in a very clear case.  It should only be made where there is no real question to be tried and it is necessary to demonstrate that the case is untenable: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Webster v Lampard (1993) 177 CLR 598.

2. The issue in this case is whether there has been a breach of the rules of procedural fairness by the Tribunal.  The claim for a breach of the rules of procedural fairness is put on the basis of the High Court decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. It is primarily put on the basis that the findings made by the Tribunal were not put to the applicant so that he had a chance to comment on them before the findings were made.

3. This is put on two bases.  The first is an argument in relation to what are described as ‘the Part B documents’ before the delegate, and whether those documents were considered by the Tribunal.  There is nothing before me to show that at least some of those documents were placed before the Tribunal.  There is also nothing to show that the Tribunal has in some way misused material that was before it nor is there anything to suggest that the applicant was in any way misled by any failure of the Tribunal to consider that material.  In these circumstances it does not seem to me that that aspect of the claim can succeed.  Indeed it was not very much pressed by the applicant’s counsel, Mr Clisby.

4. The matter that was pressed by Mr Clisby is that, in at least one regard, the Tribunal relied on information which was not put to the applicant.

5. It is necessary to say something about the background.  At the hearing before the Tribunal the applicant for the first time claimed a degree of notoriety that he said was the reason why he had been persecuted.  He said he was a well known and famous film maker and political personality in Sri Lanka and that by reason of that notoriety he was able to cause the downfall of the last government and had been influential in causing the leader of the LTTE to come to the negotiating table and agree to a cease fire. 

6. As the Tribunal records, he was asked for specific details as to what he did and who he was, such that he could make these extraordinary claims.  He then detailed his background.  The Tribunal member made the following comment:

   ‘He was asked for greater detail on several occasions as to why anyone would be interested in his views on any matters and how was it possible he could influence matters.  He confirmed that he is no longer a member of any political party nor is he a member of any organisation such as the press club in Colombo.  He confirmed that he had only ever been a member of the JVP and said that this past association is used against him, for example if he were to ever complain of anything or say anything.  It was put to him that it could still not be ascertained by me why he would have this influence nor why anyone would listen to him on topics, as from his history he had been out of Sri Lanka from 1977 until 1994 (he confirmed that this was correct though he had returned for two periods of time (totalling one year) in those 17 years), he was an importer of electrical goods, and has produced two films - one years ago - on matters unrelated to politics.  He said that he was well-known and people sought out his views   He cited as an example and showed the Tribunal a copy of an article in Sinhalese said by him to be from the Ravaya newspaper on 5 November 2000 and written by a journalist named Arnanda Darmapriya, in which he gives his views on the Bindunawewa incident.  It was put to the applicant that many people from all walks of life - government, human rights organisations, and religious bodies had commented on the incident, that there were 949 web sites on the incident, there was a government commission of inquiry set up about it, and a special web-page of the Asian Human Rights Commission, and that apart from there being many eminent people reporting on the matter, that none of these pages or articles mentioned him.  It was put to him that it was difficult to understand why anyone would seek out his view on these matters.’

7. The Tribunal went on to say that in relation to the alleged incident on 10 November 2000, his passport recorded that at that date he was in Hong Kong.  As to this, the applicant said that it was his brother who was using his passport, and not him.

8. Mr Clisby has put to me that the way the Tribunal dealt with the applicant’s claim was inappropriate for two reasons.  The first was that the Tribunal did not put to the applicant that it had made a ‘Google’ search in relation to the incident.  As noted above, it is clear that this was put to the applicant.  The second basis is that there is a reference in the Tribunal’s reasoning that the Tribunal also did a search of the applicant’s name.  The Tribunal noted:

   ‘He claimed that the views of famous and well-known people are often sought on such matters and this was why his views were sought.  I note that there are literally hundreds of web sites on the matter and his name does not appear on any of them.  Indeed his name does not appear when put into a search engine such as Google.  I would have expected if he indeed has the notoriety and is as well-known as he claims that his name would have appeared at least in some context.’

9. It would seem from this – and indeed Mr Roder, who appeared for the respondent, conceded – that the Tribunal did two searches:  one in relation to the incident, which was put to the applicant, and the other in relation to the applicant’s own name.  It would also appear that the Tribunal found that the applicant’s name did not appear.  But the reason and importance of this is simply the question of whether or not the applicant was sufficiently notorious that his views would have led to him being persecuted, as he claimed.  This was an issue which he raised for the first time before the Tribunal.

10. The question of whether or not his name appeared in a ‘Google’ search is simply a question of fact.  It is not a question of whether that should have been put to him in the context in which it arose.  It was a matter for which the applicant needed to satisfy the Tribunal that he was of the notoriety that he said.  The Tribunal’s reasoning is clear that it was not satisfied as to that, even without whatever information it may have gleaned from the further ‘Google’ search.  Indeed the reasoning of the Tribunal is, if I might say so, compelling.  In reaching its conclusion that the applicant does not have this notoriety.  The Tribunal concluded:

    I find that the applicant is not a credible witness and has produced false material to the Tribunal.  I reject all of the police reports as being self-serving and fabricated.  I reject the other material produced by him as being self-serving and inconsistent with what he was able to tell me at the hearing.  In particular at hearing he was unconvincing as to why anyone would seek out his views on any matter.’

11. The Tribunal did not dismiss the applicant’s evidence completely.  It went on:

    ‘As noted above I am prepared to accept that the applicant has a past involvement with the JVP (it is a legal party in Sri Lanka and has for several years been actively involved in the political process), I note that he is no longer a member and does not agree with all of their policies.  I am prepared to accept that his involvement and incarceration over 25 years ago would cause him some social comment and perhaps limited suspicion from the authorities.  However, I do not accept that it causes anything more than this.  The applicant has been able to return to Sri Lanka in 1994 after many years of absence.  He has operated businesses there and his family resides there.  He is not involved with any political party, and I do not accept that his involvement in politics is anything more than by way of discussion.  I do not accept that he has been threatened with serious harm by anyone in Sri Lanka since his return in 1994.  I am prepared to accept that in 1999 he was at a demonstration organised by the editor of Ravaya and that he was hit by a policeman with a stick, he was not arrested and there were no repercussions from this.

    Overall, I find that the applicant has exaggerated his claims and is not a credible witness, and I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention.’

12. That conclusion seems to me to have been obvious on the material before the Tribunal.  I cannot find that there has been any jurisdictional error.  I cannot see that it is arguable that there has been one.

13. The only remaining question is whether the matter before the Tribunal should nevertheless have been adjourned to enable the applicant to file further affidavits.  Mr Clisby informed me that his client wished to put further material before the Tribunal and for that purpose sought an adjournment.  He was unable to tell me in any detail what that further material would be; in particular he was unable to tell me what further material the applicant would have wished to put before the Tribunal if the Tribunal had put to him that it had done a ‘Google’ search and his name had not appeared.  For these reasons it seems to me that the application cannot possibly succeed and is untenable and I dismiss the proceedings.

14. I make the following orders:

    1.        The application be dismissed.

    2.The applicant pay the first respondent’s costs fixed at $5000, including disbursements and including the costs of the proceedings in the High Court.

    3.No order for costs of the second or third respondent.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             4 July 2003

Counsel for the Applicant:	Mr M W Clisby
Solicitor for the Applicant:	M W Clisby
Counsel for the Respondent:	Mr M J Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	13 June 2003
Date of Judgment:	13 June 2003