Applicant M116 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 525

FEDERAL COURT OF AUSTRALIA

Applicant M116 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 525

Re Minister for Immigration and Multicultural Affairs; Ex parte A (2001) 185 ALR 489
Applicant M115 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1448
Décor Corporation v Dart Industries (1991) 33 FCR 397

APPLICANT M116 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL AND INDIGENOUS AFFAIRS

V 352 OF 2004

SUNDBERG J
28 APRIL 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 352 OF 2004

BETWEEN:	APPLICANT M116 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	28 APRIL 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the respondent’s costs of the application.

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	V 352 OF 2004

BETWEEN:	APPLICANT M116 OF 2003 APPLICANT
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE:	28 APRIL 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Application for leave to appeal from the decision of the Federal Magistrates Court dismissing an application for orders nisi for prohibition and certiorari directed to the Refugee Review Tribunal in respect of its affirmation of the respondent’s decision to refuse the applicant a protection visa.

2. The application is supported by an affidavit by the applicant deposing that he arrived in Australia from Sri Lanka on 17 July 1998, and applied for a protection visa on 28 August 1998. The application was refused. The decision of the respondent was affirmed by the Refugee Review Tribunal. He says he joined in the Muin proceeding in the High Court, which was successful, and he was given leave to lodge his application in the High Court on or before 31 May 2003. He says that on 18 March 2004 the Federal Magistrates Court “dismissed my appeal”. The affidavit concludes:

   “I disagree with the decision of his Honour, Federal Magistrate McInnis on the ground that the Tribunal misconstrued the definition of persecution and should have determined that the findings with respect to those events that affected me in 1994 and made by the Tribunal amounted to findings of serious harm and persecution within the meaning of section 91R.

   The Tribunal also failed to recognise that those events amount to persecution and was a jurisdictional error.”

   The draft Notice of Appeal exhibited to the affidavit repeats this passage as the sole ground of appeal.

3. In his decision the Federal Magistrate said the applicant essentially relied on a lack of opportunity to comment on country information “and/or receive documents considered relevant by the RRT”. His Honour observed that the applicant claimed persecution based on political association relating to the United National Party and the Peoples Alliance, and specifically on an incident involving a ship carrying weapons. The Tribunal rejected his claims because of his low political profile. The Magistrate said:

   “It is clear that the RRT decision was based as submitted by the respondent on the applicant’s own evidence of his low level involvement and not on the country information. The country information did not form a substantial part of the decision. For that reason together with the lack of other evidence and information I am satisfied that there is no arguable basis for the application.
   …
   I am satisfied there is no arguable basis for the application and accept the respondent’s submission that there has been a failure in the present application by the applicant to discharge the necessary burden ….

   Applying the principles to which I have been referred to … the present application, I am satisfied the applicant has not provided material of a kind which would enable this court to grant the order nisi sought.”

   His Honour’s reference to “lack of other evidence”, “failure to discharge the necessary burden” and “the principles to which I have been referred”, is to authorities establishing that an applicant who complains of the Tribunal’s failure to provide him with information in its possession must put forward material to enable the court to determine whether, had the information been provided to him, he could have dealt with it in a way that might have affected the outcome of the case. See, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte A (2001) 185 ALR 489 at 501 and Applicant M115 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1448 at [18]‑[21].

4. The draft ground of appeal does not appear to have been propounded before the Magistrate. No attack is made on anything his Honour said. Rather the applicant wants the Court to revisit what he calls the Tribunal’s finding that “events that affected the applicant in 1994” did not constitute serious harm within s 91R of the Migration Act 1958.

5. In his statutory declaration that was before the Tribunal the applicant claimed he supported the UNP election campaign in 1994, which the UNP lost. He continued his UNP activities and was associated with a former Minister Mr Mendis and his local UNP organisation. He said he “encountered lots of difficulties” in obtaining government employment as a significant UNP supporter and “was subject to violence many times”. There are no particulars of the difficulties or the violence.

6. Of this part of the applicant’s claim the Tribunal said:

   “It is clear from the Applicant’s testimony at the hearing and the Tribunal finds, that he was a low level supporter of the UNP ….

   The Tribunal finds that the Applicant was and is not a high profile UNP member or supporter and in those circumstances, having regard to the above country information, there is no real chance that he will suffer persecution for his political opinion (UNP support) if he returns to Sri Lanka.”

   As I have said, nothing in the Magistrates’ decision suggests that this was an issue before him. Assuming the applicant can now raise it on this application for leave, it has no prospect of success if leave were granted. The finding the Tribunal made was based on the applicant’s testimony at the hearing, the transcript of which was not before me, and was plainly open to it.

7. This is an application for leave to appeal from the Magistrate. It is not a review of what the Tribunal did. However, assuming that, because the Magistrate did not disagree with what the Tribunal said, one can attribute to the Magistrate what the Tribunal said, his Honour’s conclusion is not attended by sufficient doubt to warrant its being reconsidered by the Court, whether a Full Court or a single judge. See Décor Corporation v Dart Industries (1991) 33 FCR 397.

8. In deciding whether to grant leave to appeal it is also necessary to consider whether substantial injustice would result if leave were refused, supposing the Magistrate’s decision to be wrong. As was said in Décor at 399, the “doubt” and “injustice” questions bear upon each other. In view of the remoteness of the prospect of success on appeal, if leave were granted, it is artificial to suppose the decision below is wrong. In those circumstances, I am not satisfied that substantial injustice would result by the refusal of leave.

9. Leave to appeal is refused. The applicant must pay the respondent’s costs of the application.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:             28 April 2004

The applicant appeared in person.
Solicitor for the Respondent:	M Ngo, Australian Government Solicitor
Date of Hearing:	28 April 2004
Date of Judgment:	28 April 2004