M111 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1625

FEDERAL COURT OF AUSTRALIA

M111 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1625

Muin v Refugee Review Tribunal (2002) 190 ALR 601

APPLICANT M111 of 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

V 706 of 2003

GOLDBERG J
MELBOURNE
22 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 706 of 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

M111 of 2003
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
First Respondent

B F KISSANE

SITTING AS THE REFUGEE REVIEW TRIBUNAL

ADOLFO GENTILE
IN HIS CAPACITY AS SENIOR MEMBER OF THE REFUGEE REVIEW TRIBUNAL
Second Respondents

JUDGE:

GOLDBERG J

DATE OF ORDER:

22 DECEMBER 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application for orders nisi for the issue of writs of certiorari and prohibition be refused.

2.        The applicants pay the respondents’ costs of and incidental to 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 706 of 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

M111 of 2003
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
First Respondent

B F KISSANE

SITTING AS THE REFUGEE REVIEW TRIBUNAL

ADOLFO GENTILE
IN HIS CAPACITY AS SENIOR MEMBER OF THE REFUGEE REVIEW TRIBUNAL
Second Respondents

JUDGE:	GOLDBERG J
DATE:	22 DECEMBER 2003
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

1. On 21 May 2003, the applicants filed papers in the High Court of Australia seeking orders calling upon the then Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) and the Refugee Review Tribunal (“the Tribunal”) to show cause why a writ of prohibition should not issue directed to the Minister, prohibiting him from proceeding further with matters that had been before the Tribunal and decided by it, and why a writ of certiorari should not be issued to quash the decision of the Tribunal which had been made on 3 March 1999.  In that decision, the Tribunal had affirmed the decision of a delegate of the Minister not to grant the applicants protection visas.

2. On 8 November 1996, the applicants applied to the Minister for the grant of protection visas.  On 19 June 1997, a delegate of the Minister refused to grant the visas.  On 27 June 1997, the applicants applied to the Tribunal to review that decision, and on 3 March 1999, the Tribunal affirmed the decision not to grant the visas.  A representative proceeding was commenced in another matter in the High Court of Australia, to which the applicant was joined, and which was determined on 8 August 2002:  Muin v Refugee Review Tribunal (2002) 190 ALR 601. The application for orders nisi was subsequently remitted to this Court by the High Court of Australia.

3. On 17 December 2003 I ordered that the application for an order nisi and the hearing of the return of the order nisi, if granted, be conducted as a single hearing.  The application for an order nisi was adjourned until today to enable counsel, who had been recently retained in the matter, to obtain instructions from his clients and to present his argument after consideration of the issues relevant to his clients’ case.

4. A substantial period of time has elapsed since the decision of the Tribunal, and so far as the application for the writ of certiorari is concerned, leave is required to have that filed and heard out of time. 

5. Leaving that aside for the moment, the first ground of error relied upon by the applicants is that:

   “In making its decision, the Tribunal failed to observe or breached procedural fairness, in that it relied upon a specific cable CL98 relating to a Burgher assisting the LTTE.”

   It is claimed that the Tribunal relied upon the information without giving the applicants the opportunity to respond to the cable.

6. I am satisfied that that ground cannot be made out.  The Tribunal’s decision states:

   “Mr Ravi submitted that the Tribunal should emphasise the early part of the DFAT cable, referred to below, about Burghers being treated the same as anyone else if they were suspected of supporting the LTTE.”

7. Later, under the heading “Findings and Reasons”, the Tribunal extracts the text of that cable and then says:

   “Whilst the Tribunal notes the submission from the applicant’s adviser that the Tribunal should place emphasis on the first sentence, the tenor of the cable in the Tribunal’s view is that it is inherently unlikely that Burghers would be accused of assisting the LTTE.”

   I am satisfied that the first ground of error relied upon is not made out on the facts.

8. The second ground which is relied upon was only raised at the hearing.  It is submitted that the Tribunal identified the wrong issue.  It is submitted that the Tribunal incorrectly identified the applicants’ claims as being on the basis that they were Burghers.  The applicants say that their claim was in fact on the basis that they were accused of being supporters of the Liberation Tigers of Tamil Eelam (“LTTE”) because of the location in which the female applicant’s parents lived, which was in LTTE‑controlled territory.  It seems to me that the Tribunal specifically dealt with that claim.

9. In the section of the Tribunal’s decision headed “Claims and Evidence”, the Tribunal set out the applicants’ claims in considerable detail.  For example, it is noted that the female applicant’s parents had a farm which was situated on the LTTE side.  There is considerable reference to claims of harassment and, what I will call loosely, imputed association with the LTTE.  Then in the Tribunal’s reasoning, after mentioning the cable to which I have already referred, the Tribunal said that it did not accept that the neighbours would conclude that the applicants were LTTE supporters, even if these neighbours were aware that the female applicant’s parents had a farm in an LTTE‑controlled area.  The Tribunal made a finding in relation to the claim of imputed association between the applicants and the LTTE, and I am satisfied that the claim that the wrong issue was identified is not sustained.

10. In essence, the claim of the applicants is that the Tribunal should have reached a different decision.  In particular, counsel for the applicants submitted that the applicants should be given the benefit of the doubt, but it is apparent from the Tribunal’s reasons that the Tribunal was in no doubt about the matter.  I am satisfied that the grounds advanced calling upon the Minister and the Tribunal to show cause why the writs should not issue are not made out.  In essence, what the applicants have sought to do is to have a merits review, but I am satisfied, as the Minister submitted, that the Tribunal’s decision is free of reviewable error.

11. Even if I were to grant leave to file the application for the writ of certiorari out of time, and even if I were satisfied that the matters should be dealt with notwithstanding the privative clause, not only is there no ground of jurisdictional error disclosed, not only is there no ground disclosed that the Tribunal has misconceived its task, but no grounds of error are made out at all. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:             3 February 2004

Counsel for the Applicant:	Mr G Nwankwo
Counsel for the Respondent:	Mr J Giacco
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 December 2003
Date of Judgment:	22 December 2003