M1011 of 2003 v Minister for Immigration
[2004] FMCA 1043
•22 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M1011 of 2003 v MINISTER FOR IMMIGRATION | [2004] FMCA 1043 |
| MIGRATION — Review of Refugee Review Tribunal — application for protection visa — alleged failure to provide opportunity to respond to adverse material — applicant allegedly misled by Tribunal — no jurisdictional error — application dismissed. |
Migration Act1958
Migration Legislation Amendment (Judicial Review) Act 2001
Re Commonwealth: ex parte Marks (2000) 177 ALR 491
M1031 of 2003 v MIMIA (2004) FMCA 763
S194 of 2002 v Refugee Review Tribunal (2003) FCA 615
| Applicant: | APPLICANTS M1011 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 1384 of 2003 |
| Hearing date: | 22 December 2004 |
| Final Orders made on: | 22 December 2004 |
| Final Orders made at: | Melbourne |
| Reasons posted to parties on: | 17 January 2005 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the Respondent: | Mr Fairfield |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application to enlarge time be dismissed.
The applicants do pay the respondent’s costs fixed in the sum of $4,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1384 of 2003
| APPLICANTS M1011 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is (in essence) an application to review a decision of the Refugee Review Tribunal (“RRT”) made on 15 November 2000. The decision was handed down on 1 December 2000. The RRT affirmed the decision of a delegate of the Minister not to grant protection visas to the applicants (who are a husband and wife, and their child).
The applicants are from Sri Lanka. They arrived in Australia in December 1998.
It is plain that the applicants are not, and never have been, refugees from Sri Lanka within the meaning of the Refugee Convention. They have shown no basis for the grant of any relief by this Court, and their application was dismissed immediately after it was heard on 22 December 2004.
Procedural History
On 4 February 1999, the applicants lodged an application for a protection visa. Only the applicant husband (“the applicant”) made specific claims for refugee status.
On 23 February 1999, a delegate of the Minister refused the application and on 22 March 1999 the applicants sought review of that decision by the RRT. The applicants attended a hearing before the RRT on 23 October 2000.
In its decision handed down on 1 December 2000, the RRT affirmed the delegate’s decision.
On 20 December 2000, the applicant filed an application for an order of review in the Federal Court in relation to the decision of the RRT. That application was dismissed (by consent) on 19 April 2001.
On 13 December 2000, the Minister was requested to exercise his discretion under s.417 of the Migration Act1958 to make a more favourable decision than that of the RRT. On 16 July 2001, the Minister decided not to exercise his power under s.417 of the Act in the applicant’s case.
The applicant joined in the “Muin/Lie Litigation” in June 2001.
In or about June 2003, the applicant filed an application in the High Court for an order nisi seeking constitutional relief in relation to the decision of the RRT. The draft order nisi sought writs of certiorari, mandamus and prohibition.
The proceedings were ultimately remitted to the Federal Court. On 3 December 2003, they were transferred to this Court.
The Application
The decision of the RRT in this matter is not a privative clause decision, because applications for judicial review were made in relation to the RRT decision both before and after the introduction of the amendments introduced by the Migration Legislation Amendment (Judicial Review) Act 2001.
What was before this Court was a remitted application made pursuant to s.75(v) of the Constitution, seeking an order nisi.
It was not in dispute that this Court has jurisdiction in respect of the present application.
The initial application (filed on 28 May 2003) sought relief on two grounds:
(a)The decision of the second respondent was beyond jurisdiction because it was made in breach of the rules of procedural fairness or natural justice in that the applicant was misled into thinking that it was necessary for him to draw information favourable to his case contained in the documents relied upon by the delegate.
(b)The decision of the second respondent was beyond jurisdiction because it was made in breach of the rules of procedural fairness or natural justice in that the applicant was not given an opportunity to answer adverse material concerning the situation in Sri Lanka which was in the possession of, and relied upon, by the second respondent.
At the hearing in this Court on 22 December 2004, however, Mr Krohn (for the applicant) sought and was granted leave to add the following ground:
Further or in the alternative the decision of (the RRT) was beyond jurisdiction because it was made in breach of the rules of procedural fairness or natural justice.
PARTICULARS
The (RRT) misled the applicants in giving an inaccurate account of material or information before the (RRT). The (RRT) put it to the applicants that it had:
… consistent advice over a number of years that the government does not consider that Sinhalese are likely to be LTTE supporters, so that there is no question that the authorities would be detaining a Sinhalese for that reason … The Sri Lankan authorities … would not regard a Sinhalese person as being an LTTE supporter …
but the (RRT) found in its decision that:
There is no indication I have seen that the authorities in Sri Lanka believe that any Sinhalese are supporting the LTTE, except occasionally for financial gain (Decision page 8.2, emphasis added.)
The (RRT) therefore misled the applicants such that they were deprived of the opportunity of addressing the material or information which the (RRT) actually had before it.
At the hearing on 22 December 2004, Mr Krohn effectively abandoned the first and second grounds referred to above. All relevant argument was addressed to the merits of the third ground.
Enlargement of Time
Mr Krohn conceded that the present application was brought in the High Court some three years after the decision of the RRT. To that extent, it was necessary for the applicant to seek an enlargement of time.
The issue of enlargement of time was dealt in the written submissions filed on behalf of each of the parties. It was not in dispute that the applications for certiorari and mandamus were well out of time. It was also not in dispute that there is no time limit in the High Court Rules for the bringing of an application for prohibition.
In my opinion, there is no need to focus on the parties’ submissions in relation to enlargement of time. That is so because I have determined that, whether or not an enlargement of time is required, and whether or not prohibition is the primary form of relief sought by the applicant, there is no merit in the only ground relied upon by the applicant for the orders nisi. In other words, I have considered whether there has been jurisdictional error on the part of the RRT, and have decided that there was no such error.
To the extent that it may be necessary for me to so record, however, I would add the following:[1]
a)I recognise that the Court has a discretion to enlarge time, and that the grant of an enlargement of time is not automatic.
b)The applicant’s case is without merit. It follows that it is not an “exceptional” case which might warrant an enlargement of time by in excess of two years.
c)Because the applicant’s case is without merit, an extension of time is not necessary to do justice between the parties.
d)Irrespective of the applicant’s explanation for the delay in commencing proceedings, he has not demonstrated any basis for the grant of relief by this Court.
e)I recognise that the public interest requires that there be an end to litigation about the efficacy of acts or decisions of public bodies or officials. That factor, of itself, would not have caused me to determine that an enlargement of time should not be granted. But the granting or refusing of an enlargement of time becomes irrelevant if the substantive proceedings have no prospects of success.
[1] See Re Commonwealth: ex parte Marks (2000) 177 ALR 491.
The Applicant’s Case
The factual background to the applicant’s case is adequately set out in the following extract from the RRT’s Reasons[2]:
The applicant husband is a Sinhalese man who worked as a driver for the French Embassy in Columbo from October 1993 until he left Sri Lanka to visit relatives in Australia.
He speaks Sinhalese and English, but not Tamil. He said he mainly worked in Columbo, but occasionally he had to take the French Embassy staff to the north or to the east. Once in 1997 he had taken some Embassy staff, including the defence attaché, to the north, and he had been abused verbally by some of the Sinhalese soldiers at a checkpoint, who believed that the French were helping the terrorists. Nothing happened to him apart from this at the incident, and he did not mention the abuse to his employers.
In mid 1997 he had taken the ambassador and a woman from a French organisation equivalent to the Red Cross to the Trincomalee area to look at refugee programs the French organisation was establishing. He thought the French woman was seeking extra funds to assist in their program for refugees. He was resting in a village waiting for the ambassador and the non government organisation (NGO) woman to return from looking at the project, when a group of young Tamils approached him in the car and accused him of bringing spies. They were threatening him with a rod and tried to hit him inside the car. Only one of the group spoke Sinhalese. They took his NIC and he showed his French Embassy pass, and after that they let him go, but warned him not to come back. He was very frightened. He did not tell the ambassador.
Subsequently when he had taken the deputy head of mission to the north, he had again been verbally abused by Sinhalese soldiers at roadblocks.
In relation to difficulties in Columbo, both the husband and wife indicated that there had been an incident where his wife had asked a neighbour to turn down the radio as her child who was then young could not sleep. This woman had yelled at her, and said that her husband was involved with the rebels. A number of people in the neighbourhood had thought they were involved with the terrorists as the husband often worked at night at receptions in the French Embassy, and came home very late. Although he could sleep at a room at the Embassy, they did not want him to do so, as he did not want to leave his young family alone. The neighbours were also upset and concerned as he sometimes took the Embassy car home at night so that he could pick up visitors from the airport … and they thought he was involved with terrorists. They would throw stones on their roof after he had left for work. This happened three or four times. A week before they left for Australia someone had left a funeral floral wreath at their door, which had upset them. They had never reported any of these problems to the police as they did not want to have further problems from the neighbours who might take revenge.
They had never been approached by the police about being involved with terrorists, and nor had they had any difficulties obtaining documentation to leave Sri Lanka.
The applicant husband did not want to give up his job with the French Embassy as he was well paid, especially when he took overnight trips. The husband did not want to refuse to drive the trips for the ambassador to the north and east, as he did not want to offend her, and he had a good job. The couple were saving to pay off a piece of land they had bought near where they were renting. For this reason they also did not want to move to another neighbourhood. They had since paid off their land, but they had heard from relatives that a person who owned the land next to them had fenced some of their land as their own. They said that in Australia they were not scared.
They feared being accused of being terrorists, and they did not think the police would protect them.
[2] See pages 4-6.
Preliminary Observation
Before dealing with the RRT’s findings and reasons, and the applicant’s submissions, I pause to observe — as I did in the introduction to these Reasons — that, on the basis of the facts presented to the RRT, the applicant is clearly not a refugee within the meaning of the Refugees Convention. His application for a protection visa was doomed to fail. The apprehended harm which he asserted related to harassment from his neighbours, for which State protection mechanisms apply. He is not (and never has been) a supporter of the LTTE. His fear of being accused of being a terrorist, and any concerns that he may have had to the effect that the police in Sri Lanka would not protect him, do not give rise to a basis for a fear of persecution related to any of the Convention grounds.
The case is adequately summarised in the following extract from the delegate’s decision[3]:
The applicant has made no claim to fear mistreatment from the police or authorities of the State of Sri Lanka. His fear of mistreatment is by non-state agents, in circumstances where he can eliminate, or almost entirely alleviate, any such risk of mistreatment by changing or not returning to his former employment. There is no claim or indication that the applicant has been denied protection of the authorities, or is unable to alleviate any risk of harm to him in Sri Lanka because the authorities of Sri Lanka are unable or unwilling to protect him.
[3] See paragraph 3.2.2 on page 4.
The RRT’s Findings and Reasons
The RRT’s findings and reasons were brief. They are as follows:
I accept that the applicant because of the nature of his job may have been in occasional situations where he might have been abused by some individuals in Sri Lanka. However, the nature of the harassment the applicant and his wife received, such as verbal abuse from some soldiers at war zone checkpoints, verbal abuse from neighbours, stones being thrown on his roof and a minor assault at a village in the borders of the war zone, do not appear to me to be of sufficient gravity as to constitute persecution in the Convention sense.
There is no indication I have seen that the authorities in Sri Lanka believe that any Sinhalese are supporting the LTTE, except occasionally for financial gain. This assessment is confirmed in the country information quoted above.[4] Further, I have seen no information at all to support a contention that the government would believe that a person working for a diplomatic embassy would be supportive of the LTTE, nor that any Western countries are supportive of LTTE activities in Sri Lanka.
I further note that neither the applicant husband nor the applicant wife took steps to resolve the matters of discord with their neighbours, through mediation, or through seeking state protection from the police if they were so concerned for their safety. I have seen no information to indicate that the authorities would condone treatment sufficient to amount to persecution of a Sinhalese person by their neighbours. There is an established system of law in Sri Lanka … and a large police force …. Had the applicants indeed been sufficiently concerned for their personal safety, I consider that they would have been able to access adequate protection of the State in this matter. In any event, there cannot be said to be a failure of state protection where that protection has not been sought, and that protection might reasonably have been forthcoming ….
The applicant has indicated that he received this abuse because of the particular circumstances of his job. He has not, it seems, made any attempt to speak to his employers about modifying his duties to reduce his attending areas where he feels uncomfortable. Nor has he taken advantage of his employer’s overnight arrangements at the Embassy to reduce his late night comings and goings in his own neighbourhood. Neither has he sought another job elsewhere. I can understand that the applicant is reluctant to quit a job that pays well, but it seems that the applicant has a responsibility also to provide for his own minimal safety and wellbeing within his community.
The applicants have raised the matter of a neighbour taking over part of their land since they left Sri Lanka in December 1998, nearly two years ago. They have not indicated that the neighbour has done this for any Convention related reason, however, and I find that this is not a Convention related matter.
Having considered all of the information, both individually and cumulatively, I find that there is not a real chance that the applicants will face treatment amounting to persecution if they were to return to Sri Lanka now or in the foreseeable future. I therefore find that the applicants do not have a well-founded fear of persecution if they were to return to Sri Lanka now or in the foreseeable future.
[4] See paragraph 26 below.
The “country information quoted above” referred to in the RRT’s findings and reasons is set out under the heading “Possible Sinhalese Association with the LTTE” on page 7 of the Decision, as follows:
Possible Sinhalese Association with the LTTE
DFAT CL 38234 CIR No 329/95 of 15 December 1995 (CX12970) discussed the issue of LTTE sympathisers as follows:
Neither we, nor out contacts, have heard any recent plausible reports of Sinhalese suspected of sympathising with the LTTE. There may well have been cases of Sinhalese people who, for financial gain, have given assistance to the LTTE – eg through selling arms – but our contacts are unable to recall any recent examples. There was one report that an individual connected with a recent LTTE attack in Columbo had “appeared to be a Sinhalese”, but nothing further had been said on this. Many of our contacts seemed to regard our questions on this with almost amusement. They suggested that if a Sinhalese was caught assisting the LTTE (whether out of sympathy or for financial gain), they would be treated in the same way as a Tamil, by being prosecuted under the Prevention of Terrorism Act …
In subsequent queries, DFAT confirmed this advice in CIR 240/97 of 15 May 1997 (CX22852) as follows:
Apart from a Sinhalese collaborating with the LTTE for illegal financial gain, it is utterly implausible that a Sinhalese would support the LTTE.
The Applicant’s Submissions
Mr Krohn argued that the RRT committed a jurisdictional error in that it failed to accord the applicant procedural fairness. That failure occurred because the RRT misled the applicant about the contents of the country information put to him as contained in the DFAT Cables quoted above, and thereby deprived him of an opportunity of addressing the material or information which the RRT actually had before it.
Mr Krohn referred to the following passage from the transcript of the hearing before the RRT (at which hearing the applicant was not represented)[5]
[5] See page 22-3 of the transcript.
RRT:… I just wanted to talk to you both about … country information which is one of the things that we look at and we’ve sought advice from the Australian embassy in Sri Lanka about issues such as Sinhalese being considered to be LTTE supporters and they’ve given us consistent advice over a number of years that the government does not consider that Sinhalese are likely to be LTTE supporters, so that there is no question that the authorities would be detaining a Sinhalese person for that reason. Do you understand that? That the Sri Lankan authorities, the government, the police, wouldn’t regard a Sinhalese person as being an LTTE supporter.
APPLICANT: Yes, they are not LTTE supporters.
RRT:Yes.
APPLICANT: We don’t (indistinct)
RRT:Sorry?
APPLICANT: Like, I understand what you’re saying.
RRT:Yes. So one of the things that – when we consider the Refugees Convention we have to look at the seriousness of the harm and I’ll need to consider whether the incidents you’ve told me about, whether those incidents are serious enough to amount to persecution or whether some of them in fact do relate to persecution. You know, for example, the neighbours being concerned about you coming and going at night and things like that, so I’m going to have to consider that. I’m also going to have to consider … whether there’s adequate state protection, for example, whether the authorities are prepared to protect you if there were any serious harm to you, and I’d have to look at things such as … whether you could go and live somewhere else apart from these neighbours or whether you could do things like change your job which would give you – so you wouldn’t have the same sort of concerns. So they’re the sort of things that I’ll have to look at in your case.
APPLICANT: Yes.
RRT:Do you understand that?
APPLICANT: Yes. I would also like to say we, you know, like, (indistinct) they are like people like that, even the authorities fail to protect even the big leaders in Sri Lanka, opposition leaders, how you say, opposition leaders like Tamil leaders, their own leaders, they fail to protect them.
RRT:How do they fail to protect them?
APPLICANT: Like, they have (indistinct) attacks on the (indistinct) just example if they want to make a barrier sort of things in the night to make sure no passing vehicles in this area to be seen, like, the government has take the barriers off, no, we are blocking residences, like, ambassadors are going past up this hill or the high commissioner, it’s really uncomfortable for them like that. They have failed to protect the leaders, even leaders, so, like, we are nothing for them, like, we are nothing for them.
RRT:Okay. Well, we do have some information from things like the US State Department report and also from the Australian embassy which does say that people, if they do have … genuine fear of serious harm that there is adequate state protection, that would be – police will protect people if they’ve got concerns, serious concerns, about their safety. So that’s another thing that I will have to consider. Are there any other things that you want me to take into account today? Anything else?
Mr Krohn also referred to the following paragraphs from the applicant’s affidavit sworn 16 December 2004:
The Tribunal misled me by its statement quoted which indicated that it had a fixed view that “that there is no question that the authorities would be detaining a Sinhalese for that reason [being a supporter of the LTTE]. In fact, the Tribunal in its reasons for decision clearly did accept that there was a possibility of the authorities believing that Sinhalese may support the LTTE at least occasionally for financial gain. (Cf. Decision, p.8.2)
If the Tribunal had not misled me by indicating that its definite view was, as stated above, “that there is no question that the authorities would be detaining a Sinhalese for that reason [being a supporter of the LTTE]”, or had the Tribunal provided me with the information it had that there was a possibility of the authorities believing that Sinhalese may support the LTTE, at least occasionally for financial gain, I would have searched for information concerning other examples of the authorities suspecting or taking action against Sinhalese for supporting, or being perceived as supporting, the LTTE.
I have now searched for and discovered examples of reports of action by the authorities of Sri Lanka against Sinhalese supporting or suspected of supporting the LTTE. These examples are from the time just prior to the hearing and decision of the Tribunal ….
Mr Krohn then referred to the recent decision of Hartnett FM in M1031 of 2003 v MIMIA (2004) FMCA 763 (“M1031”). He submitted that there is no relevant difference between M1031 and the present case.
M1031 of 2003 v MIMIA
The applicant in M1031 was a citizen of Cambodia, who arrived in Australia in 1996 on a student visa and later applied for a protection visa. He claimed to fear persecution for reason of his political opinion or imputed political opinion. He claimed that he had been a member (although not a leading member) of FUNCINPEC (National United Front for an Independent, Neutral, Peaceful and Cooperative Cambodia), and that he was at risk from the authorities in Cambodia as a result.
The RRT made certain inquiries of the applicant in M1031 on the premise that he was an ordinary FUNCINPEC member, and posed the following question for itself (as the pivotal issue in the case):
The question is whether somebody who is an ordinary member of FUNCINPEC, and has not been taking part in anything since 1996, is at risk.
The Tribunal in M1031 concluded that it was satisfied that a supporter of FUNCINPEC who held no office in the party and who had been unconnected with events in the 1997 coup and its aftermath could return to Cambodia and not face a real chance of persecution resulting from that support for FUNCINPEC.
The applicant in M1031 argued that the manner in which certain country information contained in a DFAT Cable (“the Cable”) was conveyed to him during the hearing before the Tribunal was misleading.
Hartnett FM said:[6]
[6] See paragraphs 20 to 26.
20.It is clear that the Tribunal is obliged to accurately state documentary information on which it relies and which contains material adverse to the applicant, so that he has an opportunity to properly deal with that material.
21.The full text of (the Cable) was not put to the applicant and whilst there is no obligation on the RRT to draw to the applicant’s attention materials favourable to his claim, procedural fairness does require an opportunity for the applicant to deal with an adverse proposition that is not stated in a misleading fashion.
22.The Tribunal implicitly accepted that the applicant was an active member of the FUNCINPEC party – that he was active in the party – albeit he was not in a leadership position. It referred however to him being an ordinary member, in contradistinction to a member in a leadership position, and in that vein put to the applicant a selected passage from (the Cable). In the context of the entirety of the Cable, the adverse material put was, I find, misleadingly portrayed. I accept that the manner in which this material was conveyed to the applicant was misleading. The Tribunal baldly put that ordinary members are not at risk and that was put in the context of a cable which also went on to say that:
others who had a history of some activity could, if they returned to Cambodia, expect a call from the security authorities to warn them against further activism.
23.The critical issue for the Tribunal to address was whether the level of activity of the applicant was such that he was at risk of persecution if he were to return to Cambodia. The country information relied upon by the Tribunal was not accurately stated and put to the applicant. It contained adverse material – even if all the material was not adverse – and need to be put in proper context and without misleading the applicant. It was determinative of the decision. Whilst the Tribunal was not obliged to draw to the applicant’s attention materials favourable to his claims, procedural fairness does require the Tribunal to draw to his attention those favourable parts of the documents identified because their effect was to render misleading the statement that there was no risk to ordinary FUNCINPEC members, and by implication, either passive or active members. On a fair reading of (the Cable) … the applicant was objectively mislead. Those cables did point to risk factors for those persons with a history of some activity.
24.I accept Counsel for the applicant’s submissions that:
Had the applicant and his wife been given access to the complete documents, or had there been a fair and accurate summary of what the documents said, they would have been in a position to answer what was an accurate proposition rather than a misleading one. They would have presented cogent and specific arguments to the Tribunal members addressing their mischaracterisation as ordinary but impliedly passive FUNCINPEC supporters as opposed to the low level political activists which they were clearly were. To this end, the following further matters which were accepted, or not rejected, would be relevant by way of submissions:
· The sister of the applicant’s wife is a human rights activist, concerned with Cambodian women’s issues, who fled to Thailand and who remains in that country in order to carry out her work safely.
· The applicant has participated in demonstrations in Australia that may well have led to his inclusion on a CPP ‘black list’ of political activists.
· The applicant’s wife has a history of assisting FUNCINPEC during election periods by distributing pamphlets, explaining the election process and touring the election booths for the benefit of Khmers.
25.I conclude there was a failure to accord the applicant procedural fairness. It was not a matter of a failure by the Tribunal to tell the applicant of information that was favourable to him, which clearly was not the obligation of the RRT. I find the applicant was misled about the contents of the country information put to him as contained in (the Cable). That information was pivotal in the RRT’s reasons for dismissing his claim (Applicants S194 of 2002 v Refugee Review Tribunal (2003) FCA 615 per Jacobson J at (70) and (87)).
The Respondent’s Submissions
Mr Fairfield (for the Respondent) submitted that the applicant’s claim, as presented to the RRT, was based on “imputed support of the LTTE”.[7] He then referred to the comment made by the RRT and quoted in paragraph 28 above — and, in particular, to the RRT’s comments that:
(a)… we’ve sought advice from the Australian Embassy in Sri Lanka about issues such as Sinhalese being considered to be LTTE supporters, and they’ve given us consistent advice over a number of years that the government does not consider that Sinhalese are likely to be LTTE supporters, so that there is no question that the authorities would be detaining a Sinhalese person for that reason.
(b)… the Sri Lankan authorities, the government, the police, wouldn’t regard a Sinhalese person as being an LTTE supporter.
[7] See the Applicant’s evidence at pages 14 to 17 of the transcript.
Mr Fairfield emphasised the RRT’s use of the word “likely” and the applicant’s acknowledgment that “yes, they (Sinhalese people) are not LTTE supporters”. He argued that, even if the RRT’s summary was not accurate, the applicant was not denied an opportunity to effectively advance the case that he was making. That is so because the applicant did not claim that he was (in fact) a supporter of LTTE in any form. Nor did he suggest that he had had any inappropriate dealings with LTTE (or, indeed, that he had had any dealings with LTTE at all).
Mr Fairfield also argued that the applicant did not suggest that he had been misled by the RRT’s comments until approximately two and a half years after the RRT’s decision had been made. Indeed, the first time that the applicant suggested that he had been misled (in the manner described by Mr Krohn) was in his affidavit sworn 16 December 2004.
Mr Fairfield also pointed to the following findings of the RRT, and emphasised that the applicant had not seen fit to challenge them:
I have seen no information at all to support to a contention that the government would believe that a person working for a diplomatic embassy would be supportive of the LTTE, nor that any western countries are supporting of LTTE activities in Sri Lanka.[8]
[8] See page 8 of the Judgment.
Mr Fairfield submitted that Hartnett FM’s Decision in M1031 might be wrong as a matter of law, as there is no obligation on the RRT to identify and bring to an applicant’s attention material which is favourable to his or her case.
I note that Hartnett FM held (in paragraph 25 of the M1031 Decision) that the RRT had no obligation to inform the applicant of information that was favourable to him. It is difficult to see, therefore, how her Honour’s Judgment can be attacked on the basis that she misunderstood the law in that regard. Indeed, the principle is clearly stated by Jacobsen J in S194 of 2002 v RRT (2003) FCA 615 at paragraph 70 (which paragraph was cited by Hartnett FM). The same proposition (that there was no obligation on the RRT to draw to the applicant’s attention materials favourable to his claims) was restated by Jacobsen J at paragraph 78.
Mr Fairfield submitted, however, that a careful reading of Jacobsen J’s Reasons in S194 of 2002 v RRT reveals that Hartnett FM misunderstood the effect of the Decision.
The relevant paragraphs from S194 of 2002 v RRT are paragraphs 78 to 81 (inclusive):
78.In my view, there was no obligation on the RRT to draw to the primary applicant’s attention materials favourable to his claims. Although procedural fairness required that the primary applicant be given a reasonable opportunity to place before the RRT material in support of his claims, it was for him to make good his claim that he was entitled to protection ….
79.However, it seems to me that procedural fairness would have required the RRT to draw the bold portion of CX29633 to the primary applicant’s attention if the effect of that part of the document was to render misleading the statement that there were no reports of disappearances since July 1977. If that were so, there would have been a denial of procedural fairness because the primary applicant could not have had an opportunity to deal with the proposition if it was stated in a misleading fashion.
80.But in my opinion, what was put to the primary applicant was not misleading. The RRT’s statement dealt with the current position in Jaffna. The emphasised portion referred to the position in the previous year. I do not see that what occurred in the previous year so qualified the current situation as to render the RRT’s statement misleading.
81.Thus, all that the RRT omitted to tell the primary applicant was information which was favourable to him. As I have said, there was no obligation on the RRT to provide this information to the primary applicant.
Discussion
Mr Fairfield submitted, and I accept, that there was indeed no obligation on the RRT to draw to the applicant’s attention materials favourable to his claim, and that not all misstatements or inaccurate summaries on the part of the RRT necessarily lead to a conclusion that an applicant has been misled.
Hartnett FM found that the information about which the applicant in M1031 was misled was pivotal to the RRT’s reasons for dismissing the application, and that the manner in which the RRT advised the applicant of the contents of that country information was misleading. In the present case, however, the information about which the applicant was allegedly misled was not pivotal to the RRT’s reasons for dismissing the application. As I have already recorded, the applicant’s case was (and remains) without any substantive merit.
Unlike the applicant in M1031, the applicant in the present case —
a)was never an active (or inactive) member or supporter of a party or organisation which might be regarded as being hostile or a threat to the authorities in the applicant’s country of origin[9];
b)there was no evidence that the applicant would genuinely be at risk of persecution if he were to return to his country of origin because of his level of activity with a party or organisation of the sort referred to in a) above[10];
c)it is difficult to see how the way in which the country information was put to the applicant by the RRT was practically or effectively misleading — given that the applicant confirmed that Sinhalese are not (ordinarily) LTTE supporters and that, if he felt uncomfortable with that proposition, he could have produced relevant evidence at that time; and
d)the further matters about which the applicant might have obtained information and led evidence[11] are all general matters and do not pertain to the applicant himself (as opposed to the further matters about which evidence would have been led if the applicant in M1031 had not been misled[12]).
[9] See paragraph 22 of M1031.
[10] See paragraph 23 of M1031.
[11] See the applicant’s affidavit sworn 16 December 2004.
[12] See the three dot points in paragraph 24 of the Decision in M1031.
In reply to Mr Fairfield’s submissions, Mr Krohn argued (amongst other things) that the respondent had “focused too much on detail”. In my opinion, however, the opposite is the case. The applicant has sought to focus upon a relatively minor misstatement of certain country information, and has endeavoured to construct from that misstatement a substantive and irreparable denial of procedural fairness. As I have already recorded, however, it is clear from the claims made by the applicant to the RRT that his application could not have succeeded. Those claims did not identify him as a person who could qualify for protection under the Refugee Convention.
Conclusion
The problem confronted by the applicant in the present case is that there has been no denial of natural justice, or breach of the rules of procedural fairness. In any event, I am satisfied that, even if he had been given the opportunity to correct any misunderstanding that may have arisen by leading the evidence referred to in his affidavit of 16 December 2004, the RRT’s conclusion would have been — indeed, must have been — the same. In other words, even if there was a denial of natural justice, it did not deprive the applicant of the possibility of a successful outcome. He has failed to prove that he suffered any practical injustice, because the misstatement of country information of which he complains did not actually effect the outcome of the application.
For the above reasons, the application must be dismissed in its entirety. The applicant will be ordered to pay the respondent’s costs.
I, Paul O’Halloran, certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate:
Date: 17 January 2005
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