Applicant M186/2003 v Minister for Immigration and Multicultural &

[2005] FCA 201

FEDERAL COURT OF AUSTRALIA

Applicant M186/2003 v Minister for Immigration & Multicultural &
Indigenous Affairs [2005] FCA 201

APPLICANT M186/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

VID 366 OF 2004

NORTH J
1 FEBRUARY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 366 OF 2005

BETWEEN:	APPLICANT M186/2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	1 FEBRUARY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. Application for leave to appeal is refused.

2. The applicant is to pay the respondent's costs of the proceeding.

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	VID 366 OF 2005

BETWEEN:	APPLICANT M186/2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	1 FEBRUARY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an application for leave to appeal against orders made on 18 March 2004 by McInnis FM which dismissed the applicant’s application for orders nisi in respect of a decision of the Refugee Review Tribunal (the Tribunal). 

2. The applicant is a Sri Lankan Tamil who arrived in Australia on 26 May 1997 to attend the funeral of his wife, who tragically had died in a car accident a few days before his arrival.  On 17 May 1999 the applicant applied for a protection visa, which was refused on 13 July 1999 by a delegate of the respondent. 

3. The applicant applied to the Tribunal for a review of that decision.  The Tribunal handed down a decision on 20 October 2000 affirming the delegate’s decision to refuse the applicant a protection visa.  The applicant joined the Muin test case in the High Court, was given leave to file his own application and filed an application in the High Court on 27 May 2003.  That application was remitted to the Federal Court and transferred to the Federal Magistrates Court.

4. Before the Tribunal the applicant claimed to fear persecution by the authorities or political thugs on the basis of his Tamil ethnicity and support for the United National Party (UNP).  The applicant claimed that in 1997 he defended a Tamil family from an attack by a gang and sheltered them in his home.  As a result of this action, people in his neighbourhood began to suspect that he was a Tamil and stoned his house.  He moved to a different location.  In 1980 the applicant started working in a hotel but he and other Tamil employees lost their jobs because management considered it too dangerous for them to be employed. 

5. The applicant supported the UNP and had a close association with a UNP politician killed by the JVP in 1987 or 1988, because of this the applicant was known as a UNP supporter.  The applicant regarded himself as in danger and determined that he no longer wished to support any political party.  He stopped supporting the UNP at the end of 1993.  The applicant also claimed that he assisted three Tamil boys in 1983 and that the boys were later killed. 

6. The applicant also raised humanitarian considerations that were not elaborated in the Tribunal’s reasons. As I understand it, those considerations were the tragic death of the applicant's wife and his separation from his two sons, which had occurred whilst he was in Sri Lanka as a result of a dispute with members of his family.

7. The Tribunal accepted that the applicant was a credible witness and found that his fear of harm because of his Tamil ethnicity and his imputed political opinion were genuine.  The Tribunal did not accept that the applicant's fears were well founded but did accept he had suffered the harm he claimed in 1997 as a result of assisting a Tamil family, and that he assisted the three Tamil boys in 1983.  The Tribunal concluded:

   ‘Nevertheless the applicant did not provide evidence that he was harmed or at risk of harm for reasons of his Tamil ethnicity from about the time that he stopped working in the hotel in the mid‑1980s.  Given the lapse of time since then I do not accept that he faces a real chance of being persecuted because of his Tamil ethnicity if he returns to Sri Lanka.’

8. The Tribunal accepted the applicant's claims that he supported the UNP until the time of the assassination of Premadasa in 1993, and that he associated with prominent UNP supporters and politicians until the late 1980s.  The Tribunal concluded that the applicant:

   ‘did not provide evidence of political activities in which he engaged after that time.  Furthermore, he did not provide evidence of threats of harm against him by supporters of the People's Alliance, political thugs or the authorities between that time and his departure from Sri Lanka.  I therefore find that there is only a remote chance that he would be of adverse interest to PA supporters, political thugs or the authorities if he returned to Sri Lanka.  Accordingly I do not accept that he has a well-founded fear of being persecuted on political grounds if he returns to Sri Lanka.’

9. The Tribunal stated that it was unable to take into account humanitarian considerations, and indicated that the Minister has power under s417 of the Migration Act 1958 (Cth) to substitute a more favourable decision than the decision of the Tribunal where the Minister considers it is in the public interest to do so.

10. The grounds of appeal raised by the applicant before the federal magistrate were the same as those before the High Court.  The applicant asserted that the decision of the Tribunal (a) was made without jurisdiction or was affected by an error of jurisdiction; (b) was affected by an error of law; (c) was so unreasonable that no reasonable decision-maker could have made it; (d) was based on a finding for which there is no evidence or other material; (e) takes into account irrelevant considerations; (f) fails to take into account relevant considerations; (g) was an improper exercise of power conferred by the Migration Act 1958 (Cth); (h) was otherwise contrary to law; and (i) was made in bad faith.

11. The draft order nisi contained three further grounds:  (a) the Tribunal failed to accord the applicant natural justice; (b) the Tribunal failed to follow the procedures contained in the Migration Act1958; (c) the Tribunal asked the wrong question or misconceived her duty.  Under the heading ‘Particulars’ in both the grounds of appeal and the draft order nisi the applicant stated: ‘I will provide particulars when FOI documents are received.’

12. The federal magistrate refused the application for order nisi on the grounds that the applicant had not made out an arguable case on any of the grounds asserted in the draft application. 

13. On 23 March 2004 the applicant filed an application for leave to appeal, paragraph 3 of which stated that: ‘the grounds of the application appear in the annexed affidavit’ but it does not seem any such affidavit was filed.  However, on the same day the applicant filed a draft notice of appeal in which he stated the following three grounds:  ‘(a) there was an error of law in the court decision; (b) I do not agree with the decision given by McInnis FM on 18 March 2004; (c) I will provide more details later’. 

14. The applicant filed a document headed ‘My Submissions’ on 9 August 2004, together with a bundle of newspaper articles and a photocopied document (Exhibit A).  In those submissions the applicant recited the circumstances in which he came to Australia. He explained he had made an application for a special need relative visa, which was apparently refused, and referred to the worsening situation in Sri Lanka concerning the Tamil population. The applicant explained the events in 1997, which were considered by the Tribunal, and provided further detail about the situation in Sri Lanka at the time of writing (towards the end of 2004).  The gist of the material was that there was real danger to the Tamil population in Sri Lanka. 

15. On 3 December 2004, the Chief Justice directed that this appeal would be determined by a single judge.  On 19 January 2005 the applicant filed a further document in support of his appeal.  He referred to the tsunami that struck Sri Lanka on 26 December 2004 and the suffering that has resulted.  He indicated that the controversy which arose concerning the distribution of relief aid to tsunami victims reinforced his fears about the danger of discrimination or persecution as a Tamil.

16. At the hearing of the appeal the applicant represented himself but was assisted by a Tamil interpreter.  He did not seek to elaborate on the written submissions he had filed.  I explained before asking for his submissions that the role of this Court is limited. One cannot help but feel sympathy for the applicant concerning the unfortunate death of his wife and his family dispute.  However, those matters do not bear upon the question of the correctness of the Tribunal's decision.  The Tribunal was correct in noting the issues and indicating that they were not relevant to the question of the grant of a protection visa.

17. The task of this Court is limited to determining the legal correctness of the Tribunal's decision at the time when it made the decision.  Consequently, the Court cannot take into account any material which was not before the Tribunal, or which relates to events which have occurred since the Tribunal gave its decision.  Thus, the material relating to those events does not give rise to any ground of review of the Tribunal’s decision.

18. It is implicit in some of the applicant’s written submissions that he reasserts the factual claims made to the Tribunal and which were accepted by the Tribunal.  In respect of those claims, it cannot be said that the Tribunal erred.  The applicant's case failed before the Tribunal because the incidents were so far in the past that they did not substantiate an objective fear at the time the decision was made.  Nothing the applicant has raised before me has indicated that the Tribunal erred in coming to that conclusion when it did.  In my view the federal magistrate was correct in concluding that the applicant did not show that the Tribunal had made an error of law in affirming the decision of the delegate. 

19. It follows that any appeal is bound to fail and leave to appeal should be refused.  The applicant must pay the respondents costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:            7 March 2005

Counsel for the Applicant:	Applicant appeared in person
Counsel for the Respondent:	Mr R.C. Knowles
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 February 2005
Date of Judgment:	1 February 2005