Harinpolsiti, Laddarat v Minister for Immigration and Multicultural Affairs

[1998] FCA 749

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 185  of  1998

BETWEEN:	LADDARAT HARINPOLSITI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		LEHANE J
DATE OF ORDER:		19 JUNE 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal is affirmed.

1. The applicant 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
NEW SOUTH WALES DISTRICT REGISTRY	NG 185 of 1998

BETWEEN:	LADDARAT HARINPOLSITI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LEHANE J
DATE:	19 JUNE 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

This is an application under s 476 of the Migration Act 1958 (Cth) for review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the Minister that the applicant was not a person entitled to protection as a refugee, and therefore was not entitled to a protection visa.

The application for review by the court relies on four grounds upon which review is available under s 476. The grounds briefly stated are, first, that procedures required by the Act and Regulations to be observed were not observed, secondly, that the decision was an improper exercise of the power conferred by the Act and Regulations, thirdly, that the decision involved an error of law being an error involving an incorrect application of the law to the facts as found; and, finally, that there was no evidence or other material to justify the making of the decision.

No particulars are given of any of those grounds.  The applicant is not represented by lawyers.  She has no facility in the English language and has been assisted by an interpreter.  It is fair to say that she has not been able to add, in submissions before me this morning, anything by way of particulars of the grounds upon which she seeks review.  Neither has the applicant filed any evidence.  The evidence before the court comprises, in the usual way, the departmental file and the Tribunal's file, each of which has been tendered by the respondent Minister.

The material before me includes of course the decision of the Tribunal and the reasons given by the Tribunal for its decision.  In brief, the circumstances are these.   The applicant is a Thai national.  She arrived in Australia in September 1996.  In December 1996 she applied for recognition as a refugee.  That application was refused.  She sought review by the Refugee Review Tribunal on 2 May 1997, and the decision of the primary decision maker was in due course affirmed.

The basis upon which the applicant claimed to be a refugee may usefully be quoted in full:

In late 1992 and early 1993, I personally helped the pro-democracy demonstration in Bangkok.  The demonstration was carried out by hundreds of students from Bangkok and from other provinces.  That demonstration was brought against the military regime in Thailand.  I personally shared the ideology with the students and a lot of them came from my home province.  I helped in the protest and supplied the food and drinks.  As a result, several hundred students were killed by armed soldiers.  A lot of students have gone missing since that uprising.  The army knew that I took part in the demonstration.  Since the uprising I have feared for my life and my security has been at risk.  Therefore I am asking Australia for protection.  If I am forced to return to Thailand I will be arrested and killed by the soldiers.

It should be added, as the Tribunal noted in its reasons, that the applicant’s claim for recognition as a refugee included also a statement that she had lived from 1986 until the time of her departure from Thailand at the same address.  She applied for a passport, and was granted one, apparently without difficulty. She was able to leave Thailand without interference.

The applicant was, in accordance with the Act, given the opportunity to attend a hearing before the Tribunal and to notify the Tribunal of the names of any persons whose evidence might assist.  The applicant, through a solicitor then acting for her, declined the opportunity of a hearing and did not nominate any potential witnesses.  Thus the Tribunal had before it, without further evidence or any elaboration, simply the claim which I have quoted in full.

In those circumstances, as it was entitled to do under the Act, the Tribunal proceeded to deal with the matter on the papers.  Its reasons incorporate a statement, in a form which seems to me unexceptionable, of the applicable law.  The Tribunal stated, accurately, the nature of the claim made by the applicant, took into account the applicant's statement and, again as it was entitled to do, country reports in relation to Thailand. 

On the basis of the material before it, the Tribunal found that there had been demonstrations in which students had been killed in the early part of 1992 but not, as the applicant asserted, in late 1992, still less in 1993.  The Tribunal also placed considerable weight upon the circumstance that the applicant had since 1992 and 1993 continued to live, until September 1996, at the same address and had been able, without difficulty or interference, to obtain a passport and leave Thailand lawfully.  Having regard to that evidence and those findings, the Tribunal concluded that it could not accept that the applicant had a well founded fear of persecution for a Convention reason.

The review of the Tribunal's decision by the court is of course not a merits review; but in the circumstances of this case it seemed to me desirable to state, by way of background, the circumstances of the application for review as it came before the Tribunal and the rather bare statement of facts provided by the applicant.  If one turns then to the grounds of review, it is impossible, I think, to entertain any serious doubt that no error of law has been identified or is apparent involving an incorrect application of the law to the facts as found by the Tribunal.  It is equally clear, in my view, that no failure to observe required procedures has been identified and, moreover, that no such failure is apparent.  The particular provisions of the Act requiring the offering of a hearing and a notification that the applicant was entitled to nominate potential witnesses clearly, on the material before me, were observed.  There could, I think, be no suggestion, on the material before me, that the Tribunal failed to comply with its obligations under s 420 of the Act.  On that footing, the second ground must fail equally. 

In the circumstances as I have recited them, there is equally no basis that I can see on which it might be said that the Tribunal improperly exercised it powers, particularly having regard to s 476(3) of the Act. Equally, my recitation of the circumstances will demonstrate, without a need for further elaboration, that there is no identified basis, nor any apparent basis, upon which the “no evidence” ground could succeed, particularly having regard to the requirements of s 476(4). It inevitably follows that the application for review must fail and the decision of the Tribunal must be affirmed.

Before making those orders, however, I think I should refer briefly to a matter which concerns me and to which I referred in the course of discussion with Mr Peek, who appeared for the Minister.  The Tribunal referred to the application before it as capricious and half hearted.  In my view, on the material before me, the Tribunal was justified in using language of that kind.  The statement, in the application for recognition as a refugee, of the basis on which the applicant claimed to be entitled to that recognition could not possibly have been thought, by anyone having any substantial acquaintance with the relevant law, to be sufficient to establish such a claim.

The applicant was offered the opportunity to attend a hearing and to expand upon what she had put before the Minister first and then the Tribunal.  She declined that opportunity.  At the time she did so a solicitor was acting for her.  That solicitor lodged the form by which the applicant declined a hearing.  It must have been apparent to any solicitor familiar with migration law and procedures that the inevitable consequence would be that the application would fail

It is equally apparent, though the application for review by the court was filed by the applicant herself, that it was drawn by a person who not only thoroughly understands the English language but also has at least a basic familiarity with the relevant provisions of the Migration Act. There is no material before me which would enable me to say or even speculate as to who may have prepared the form of application. When the applicant addressed me through the interpreter this morning it seemed to me quite apparent (and I should interpolate that it was merely statements from the bar table, not sworn evidence) that the applicant had not the slightest understanding of what this proceeding was about, what circumstances or grounds the court was to consider or on what basis the court might deal with her application.

I explained to the applicant through the interpreter that this was not a merits review but a review on specified legal grounds of a decision of the Tribunal that she was not a refugee and that the relevant matters to be dealt with were matters going, in a general sense, to the claim which was before the Tribunal: in broad terms, a claim that the applicant feared persecution on a Convention ground.  That appeared to be a matter of some surprise to the applicant.  The matters to which she referred in addressing me had nothing to do with such a claim, but had to do with a claim that she should be allowed to remain in Australia on what amounted to compassionate grounds having regard to a need, which she asserted, to provide for the education of her children who apparently remain in Thailand.

That occurred in circumstances where the applicant has had a solicitor acting for her during a substantial part of what I may call the total proceedings (though of course the solicitor has not been involved in the application for review before me) and had previously, according to the evidence before me, had another migration agent pursuing matters on her behalf.  I do not have before me material which enables me with any degree of confidence to apportion to any particular person blame for what has occurred, but what has occurred is in my opinion quite deplorable.

It is deplorable from the point of view of the applicant, who appears not to have any understanding of what this proceeding is about.  It is deplorable from a public point of view because it is evident that substantial public resources have been wasted.  There is nothing further that I can usefully say about it.  The necessary consequence, however, of the reasons which I have given is, as I have said, that the application for review must be dismissed and the decision of the Refugee Review Tribunal affirmed.  I so order.

The Minister has applied for the costs of the application.  Ms Harinpolsiti has simply put before me, in response, matters going to her understanding of the nature of the case before the court and going to her need to support her children.  Those matters do not, in my view, provide a satisfactory answer to an application for costs in circumstances where the application was one which could properly be described as hopeless. 

The result is that the Minister is entitled to an order that the applicant pay his costs of the proceeding. 

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane

Associate:

Dated:            26 June 1998

The Applicant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 June 1998
Date of Judgment:	19 June 1998