Applicant M97 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 526

FEDERAL COURT OF AUSTRALIA

Applicant M97 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 526

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 M97/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL AND INDIGENOUS AFFAIRS

V 353 OF 2004

SUNDBERG J
28 APRIL 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 353 OF 2004

BETWEEN:	APPLICANT M97 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 353 OF 2004

BETWEEN:	APPLICANT M97 OF 2003 APPLICANT
AND:	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 deposing that the applicant arrived in Australia from Sri Lanka on 19 February 1997, and applied for a protection visa on 1 April 1997. The application was refused. The decision of the respondent was affirmed by the Refugee Review Tribunal. She says she joined in the Muin proceedings in the High Court, which was successful, and was given leave to lodge his application in the High Court on or before 31 May 2003. 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 that the findings with respect to these 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 these events amounted to persecution and was a jurisdictional error.”

   Strangely, this ground is not in the draft Notice of Appeal exhibited to the affidavit. There it is said that the Magistrate should have held that “the applicant grounds of review were made out and granted the appropriate relief”.

3. The Federal Magistrate noted that the applicant claimed protection based on her political opinion. His Honour said that she gave oral evidence before the Tribunal. It considered in detail the allegations concerning her political activities, and whilst it accepted that she was a member of the United National Party, it was not satisfied that she would come to any harm by reason of her political opinion. It said she had given unconvincing reasons for not reporting the alleged crimes against her to the police. It also said it found it implausible that the applicant would fail to report serious criminality to the police, despite having been taken to a police station on two separate occasions. The Magistrate said:

   “The applicant essentially seeks to raise a denial of procedural fairness and/or breach of natural justice based on inability to comment on country information. In this case an affidavit sworn by Maria Ngo on 20 February 2004 annexes transcript purporting to be an extract of the recorded proceedings before the RRT where it is, in my view, clearly indicated that country information in general terms was in fact put to the applicant who through the interpreter had an opportunity to comment.

   Accordingly in this case I am satisfied that there is no arguable basis for the application. Even if there was more detailed country information referred to in the RRT’s decision, I am further satisfied, in any event, that the applicant has failed to provide evidentiary material which would demonstrate that the outcome of the RRT may have been different.

   I am satisfied that there is no arguable basis for the application and accept the respondents’ submissions that there has been a failure in the present application by the applicant to establish that she was not given the opportunity to comment on country information and/or failed to discharge the necessary evidentiary 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.”

   The failure to “provide evidentiary material”, failure to “discharge the necessary evidentiary burden” and the “principles to which I have been referred” is a reference to authorities establishing that an applicant who complains of a failure to disclose information in the possession of the Tribunal must put forward material to enable the court to determine whether, had the information been provided, the applicant 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].

4. The ground of appeal appearing in the applicant’s affidavit in support of the application does not appear to have been pursued before the Magistrate. The Tribunal’s account of the applicant’s activities in Sri Lanka mentions no events that took place in 1994. It would appear that the final paragraph of her affidavit has been mistakenly copied from a similar application by Applicant M116/2003. Accordingly I will treat her draft notice of appeal as enunciating her real grievance. In view of its lack of particularity, I will further take her to wish to repeat on appeal the matters she raised before the Magistrate.

5. In my view the Magistrates’ 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 by the Tribunal of information. The evidence he referred to supports the view that there was no failure to disclose. If there was a partial failure to disclose, the law to which he referred was correctly applied to the facts.

6. 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.

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

I certify that the preceding seven (7) 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