Applicant M135 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 522

FEDERAL COURT OF AUSTRALIA

Applicant M135 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 522

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

APPLICANT M135 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V 348 OF 2004

SUNDBERG J
28 APRIL 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 348 OF 2004

BETWEEN:	APPLICANT M135 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & 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 348 OF 2004

BETWEEN:	APPLICANT M135 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & 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 15 September 1997 and applied for a protection visa on 9 September 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 that 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 grounds that the Tribunal misconstrued the definition of persecution and should have determined 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 amounted to persecution and was jurisdictional error.”

   The draft Notice of Appeal filed with the affidavit repeats this passage as the sole ground of appeal.

   In his decision the Federal Magistrate said the applicant asserted there had been a breach of procedural fairness in that the Tribunal relied upon country information without giving him the opportunity to respond to these matters, but did not provide any affidavit material or other evidence to support his claim. His Honour said:

   “It is clear that in its decision the RRT noted the claims of imputed political opinion being pro‑LTTE arising from the employment by the applicant of a Tamil worker on a poultry farm. The RRT clearly considered the evidence of the applicant and rejected his evidence. It noted that the applicant did not apply for a protection visa for almost a year after he arrived in Australia and otherwise relevantly referred to matters raised by the applicant. The RRT’s reasons do not in fact depend upon any country information as a prime basis for rejecting the applicant’s protection visa claim.

   Accordingly, there is no arguable basis for this application.
   …
   In this matter I am satisfied that there is no arguable basis for the application and accept the respondent’s submissions that there has been a failure in this application by the applicant to discharge the necessary evidentiary burden ….

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

   The failure to “discharge the necessary evidentiary burden” and the “principles to which I have been referred” refer 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 M115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1448 at [18]‑[21].

3. The ground of appeal appearing in the applicant’s affidavit in support of the application, repeated in the draft Notice of Appeal, does not appear to have been pursued before the Magistrate. The applicant’s account of his activities in Sri Lanka mentions no events that took place in 1994. It would appear that the final paragraph of his affidavit, and the ground in the Notice of Appeal, have been mistakenly copied from a similar application by Applicant M116/2003. Accordingly I will treat the applicant as wishing to repeat on appeal the matters he raised before the Magistrate.

4. In my view the Magistrate’s decision is not attended by sufficient doubt to warrant it being reconsidered by the Court, whether a Full Court or a single judge. See Décor Corporation v Dart Industries (1991) 33 FCR 397. His Honour correctly stated the law applicable, in an order nisi context, to alleged non‑disclosure of information by the Tribunal. He also correctly stated that the Tribunal’s conclusion did not depend upon any country information as a “prime basis” for rejecting the applicant’s case. In fact the Tribunal disbelieved important parts of the applicant’s evidence, which led it to conclude that he did not have a subjective fear of persecution. This conclusion was not in any way influenced by the country information. As to that the Tribunal said it

   “indicates the continuing problems that the LTTE campaign is causing in Colombo and it is natural that the Applicant (and his parents) may wish him to seek a better future in Australia, however, those problems do not make the applicant a refugee under the Convention.”

5. In determining whether to grant leave 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 the circumstances, I am not satisfied that substantial injustice would result from a refusal of leave.

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

I certify that the preceding six (6) 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:	P Barker, Australian Government Solicitor
Date of Hearing:	28 April 2004
Date of Judgment:	28 April 2004