M120 v Minister for Immigration - [2004] FMCA 335

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M120 v MINISTER FOR IMMIGRATION

[2004] FMCA 335

MIGRATION – Application seeking an Order Nisi seeking to quash a decision of the Refugee Review Tribunal not to grant a protection visa.

Federal Magistrates Court Rules 2001, Rule 13.10

Lie v Minister for Immigration and Multicultural Affairs [2002] HCA 30
Muin v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 601
R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw (1952) 1 All ER 122
Re Minister for Immigration and Multicultural Affairs; Ex parte A (2001) 185 ALR 489
M144/2003 v Minister for Immigration and Anor [2004] FMCA 154
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) HCA 6; (2003) 195 ALR 502
ApplicantM115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1448
Applicant M142/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 585

Applicant:

APPLICANT M120/2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 91 of 2004

Delivered on:

1 June 2004

Delivered at:

Melbourne

Hearing Date:

25 May 2004

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr Brereton

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application for the order nisi is refused.
The applicant pay the respondent's costs fixed in the sum of $2000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 91 of 2004

APPLICANT M120/2003

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This proceeding is an Order Nisi seeking to quash a decision of the Refugee Review Tribunal (the Tribunal) made on 17 January 1997 which was remitted by the High Court of Australia to the Federal Court. In the High Court the applicant applied for constitutional writs directed to the respondents in respect of the decision of the Tribunal which affirmed the decision of a delegate of the first respondent (the Minister) refusing the applicant a protection visa.
Between the time of the Tribunal's decision and September 2000 the applicant unsuccessfully made application for the exercise of the minister's discretion to grant a protection visa. On 27 September 1997 the applicant joined the representative proceedings in the High Court in Lie v Minister for Immigration and Multicultural Affairs [2002] HCA 30 and on 2 June 2000 joined the representative proceedings in Muin v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 601.
The representative action was successful and the applicant was given leave to lodge an application in the High Court on or before 31 May 2003. On 9 October 2003 the matter was transferred from the Federal Court of Australia to the Federal Magistrates Court. Before transferring the matter Marshall J made the following orders:
(1) The application for an order nisi and the hearing of a return of the order nisi, if granted, be conducted as a single hearing.
(2) That the applicant file and serve:
(a) a statement of contentions of relevant facts and law setting out:
(i) particulars of the grounds relied upon for this application and for the issue of prerogative writs and orders sought; and
(ii) if the applicant requires an extension of time in which to file this application, the reasons why an extension of time should be granted; and
(iii) if the applicant has previously sought judicial review of the Refugee Review Tribunal decision the subject of this application the reasons why res judicata or issue estoppel does not apply or why Anshun principles should not apply; and
(b) any affidavits which the applicant intends to rely on at the hearing on or before 10 November 2003.
(3) The directions hearing be adjourned to a date to be determined by the docket judge.
(4) In the event that order 2 is not complied with, the applicant will be called upon at the adjourned directions hearing to show cause why the matter should not stand dismissed.
(5) There be liberty to apply on two days' notice.
On 31 October 2003 in apparent compliance with the orders of Marhsall J the applicant filed Contentions of Law and Fact. The contentions, however, do not set out with any greater particularity than does the order nisi the grounds relied upon, other than to contend that:
In making its decision the Tribunal failed to observe or breached procedural fairness in that it relied upon a body of material relating to political violence in Sri Lanka and to the JVP without giving me the opportunity to respond to those materials.

Evidentiary onus

The respondent has not sought formally a summary dismissal under Rule 13.10 of the Federal Magistrates Court Rules 2001, although the respondent contends that the applicant has not strictly complied with the orders of Marshall J in that the contentions of law and fact, although filed, do not particularise the grounds as required in order 2(a)(i). Rather, however, the respondent contends, and I agree, that on a hearing of an order nisi it is for the applicant to provide appropriate material in support of the application and otherwise discharge the evidentiary burden to adduce evidence in support of the application (see R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw (1952) 1 All ER 122 per Denning LJ at [131]; Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte A (2001) 185 ALR 489 at [501], both cited by McInnis FM in M144/2003 v Minister for Immigration and Anor [2004] FMCA 154 in support of that proposition.

The decision of the Tribunal

The Tribunal found that the applicant was a Sri Lankan national. Between 1973 and 1986 he was a radio operator in the Sri Lankan police force. He had previously lived in the north of Sri Lanka, an area which is inhabited mainly by Tamils and he speaks Tamil. The applicant told the Tribunal that he and his family were strong supporters of the United National Party (UNP). He told the Tribunal that while he was in the Sri Lankan police force word of the sympathetic manner in which he dealt with Tamil clients spread throughout the community in the area and people felt he was also sympathetic to their political struggle. In view of this he was approached by the Liberation Tigers of Tamil Elam (LTTE) to join them. When he refused the applicant alleged they threatened to kill him and he resigned from the police force and returned to his home town in central Sri Lanka.
He claimed that in 1971 he volunteered to help defend the local police station from Janatha Vimukathi Peramuna (JVP) attacks and that in 1987 with the rise of the JVP and as a member of the UNP he received threatening letters and telephone calls causing him and his family to fear for their lives. He claimed the fact that he was a former policeman added to his personal danger from the JVP. Death threats, he claimed, required him to relocate with his family to Colombo. In 1988 he claimed to have been appointed an organiser in his district for the UNP and became an active and well-known member. As a result of these activities he angered many of the local Sri Lankan Freedom Party (SLFP) members in the area and feared political revenge attacks from them, particularly following power.
He claimed that the assassination of the UNP leader in October 1994 and the death of a number of people convinced him that life would not be safe for him in Sri Lanka, especially in light of the continual harassment of UNP members and supporters by the PA. He claims that soon after a change of government there was harassment and threats to kill the applicant and his family by PA members and that he was hit by the external mirror of a car while walking along with his children during the election campaign.
He claimed further that between 1994 and 1995 unidentified armed men visited his house and questioned him about activities and the police also questioned him because they had been told he had weapons at his home which he did not. His brother who was a UNP politician was assaulted during the November election campaign and died some months later but he does not know if his death was connected with the assault. Another brother died in an accident. In December 1995 he sold assets and the family went to Singapore but returned to Sri Lanka in February 1996. He claims that in late February 1996 he was asked to transfer explosives for the LTTE and when he refused the LTTE member made a threatening motion. He made immediate arrangements to leave Sri Lanka and come to Australia.
At the hearing he submitted a newspaper report on the PA-UNP clash in 1996 and matters associated with it. He submitted newspaper reports about the LTTE arms and explosives and a report that the leader of the newly revived JVP had reportedly been killed in an underground internal party struggle. He submitted articles to the department about the alleged resurgence of the JVP, human rights violations in Sri Lanka, suppression of the media and victimisation of UNP supporters.
There were essentially three claims to persecution alleged by the applicant. One was a fear of persecution from PA/SLPF and its supporters. The second was a claimed fear of persecution from the JVP, and the third was a claimed fear of persecution from the LTTE. The Tribunal dealt with all three claims. The Tribunal accepted that the applicant had a subjective fear of persecution should he be returned to Sri Lanka. But in considering whether there was a real chance of this happening to the applicant the Tribunal rejected his claims.
In relation to the fear of the PA/SLPF, the Tribunal accepted that the applicant was a UNP member and for a few months was the organiser of his district. It accepted that he was attacked by people in his village after the November 1994 elections and was subjected to harassment because of his support for the UNP. The Tribunal accepted that he was struck by the external mirror of a car while walking with his children, but did not believe that it was or that the applicant saw it as an attempt on his life by PA supporters. The Tribunal accepted that the applicant's house was raided because of false allegations that he kept weapons at his home and concluded that the most likely explanation was that the police were acting on information maliciously provided to them possibly by PA supporters and this constituted a form of harassment.
The Tribunal, however, did not accept the claim that unidentified men visited his house four or five times and questioned him. That evidence was rejected mainly because the first time it had been claimed was at the hearing. The Tribunal also accepted that the applicant's brother was a UNP politician who was assaulted during the November 1994 election campaign, but that there was no reason to believe that there was any connection with the applicant's own situation and that was not claimed by the applicant.
The Tribunal accepted that the August 1994 general elections were amongst the most violent in Sri Lankan history as attested to by a number of reports. It also accepted that whilst after the presidential elections the scale of violence between UNP and PA supporters subsided considerably from the high levels of the election campaign, many incidents of violence involving supporters of both political parties continued to be reported. The Tribunal noted that the evidence suggested that UNP members and supporters had more often been the victims of attacks and that PA supporters had generally been accused of involvement in the attacks.
However, in considering information the Tribunal noted that in a more recent evaluation of the current situation in Sri Lanka a DFAT report advised that cases of harassment of UNP supporters are isolated.
The assessment offered by our sources is that generally speaking there is no harassment of former (or current) UNP members by authorities. There have been cases reported in the local papers of UNP members at the local government level being involved in violent incidents with supporters of the People's Alliance (PA) particularly around election times. There have also from time to time been claims made in some newspapers that certain PA politicians are protecting "thugs" involved in criminal activities. However, none of these reports and claims allege that the government itself is supportive of or even turning a blind eye to violent actions by PA members or supporters against UNP members. ...
Claims of political harassment of UNP members and supporters should be viewed with some scepticism. There may be individual cases of political rivalries leading to violence, but all parties have equal access to the law and to police protection.
The source of that was a DFAT cable of 15 December 1995.
The Tribunal noted that Sri Lankan politics are a vigorous affair and there were incidents of violence against those who were involved in politics. However, the Tribunal did not accept that there was any general PA connivance in the clashes which had occurred and no reason to believe that violence is encouraged by the government.
On the basis of the country reports the Tribunal did not accept that if the applicant were to return to Sri Lanka there was any more than a remote chance that he would be harmed by the PA or the SLPF now or in the immediately foreseeable future on account of his involvement with the UNP. It accepted that he was a dedicated UNP worker and that his active involvement in the 1994 election resulted in his and his family being harassed and threats being made against him during a period of extreme political violence. Nevertheless, apart from a brief stay in Singapore, the Tribunal noted that he remained in Sri Lanka for more than a year after the election without being harmed.
It further noted that he did not leave for Australia until a year later and if PA supporters had been intent on harming him they would have done so. The Tribunal further noted that even though the applicant's wife and children were threatened immediately after the election, they had remained in Sri Lanka without being harmed. Further, the Tribunal noted that it was important that PA members and supporters were also liable to the law and that there was an independent judiciary in Sri Lanka.
Having regard to all the evidence the Tribunal did not accept that if the applicant were to return to Sri Lanka there was any more than a remote chance that he would be harmed by PA members or supporters now or in the immediately foreseeable future. It is thus apparent that the Tribunal took into account in coming to this conclusion both the country information and the facts provided by the applicant, particularly those relating to his remaining in Sri Lanka for more than a year after the election without harm.
In relation to his fear of the JVP, the Tribunal noted that this was a militant organisation formed in about 1964. Following two insurrections in early 1988 and late 1989 and a massive and brutal response by the government there was general agreement among informed opinion that the JVP was effectively subjugated by early 1990. The Tribunal referred to the Department of Foreign Affairs and Trade profile on Sri Lanka in 1993 which indicated that by 1990 the Sri Lankan security forces effectively destroyed the JVP as a political force.
In considering whether the JVP targeted families of the security forces the Tribunal referred to country information and noted that there were instances of this having occurred in the 1980s but that the JVP was effectively wiped out as a serious threat by ruthless army action in late 1989 and early 1990. The Tribunal also noted that Amnesty International reports on Sri Lanka recorded killings by the JVP but subsequent reports made no reference to any acts by the JVP. The Tribunal noted that while for a number of years there had been persistent rumours of re-emergence of JVP militancy, they have not been supported by any hard evidence. The country information relied upon by the Tribunal indicated that the JVP was not making a come-back as an armed military force.
Following its defeat in 1990 the JVP emerged in fact as a legal political party rather than a militant organisation and in 1994 formed a new party, the National Salvation Front, which contested the 1994 elections under the umbrella of the SLPF. The Tribunal noted its attempts to re‑organise were hampered by the fact that its leadership was almost entirely eliminated in 1989. The Tribunal concluded that having regard to all the evidence it was satisfied the JVP was effectively destroyed in 1990 and there was no foreseeable prospect of its re-emergence as a militant organisation.
The Tribunal accepted the applicant's claim that he had defended the police station against JVP attacks and that in 1988 he was threatened by the JVP because he was a policeman and an active UNP member. However, whilst accepting that in 1988 the threat to him from the JVP was real, but having regard to the information about the demise of the JVP and the fact that he never experienced any problem from the JVP after 1988, the Tribunal was satisfied that he would not be at risk from JVP if he were to return to Sri Lanka. It is thus apparent that the Tribunal relied upon both country information in relation to the position of the JVP in Sri Lanka, but also to the facts and in particular that there had been no problems experienced by the applicant after 1988.
The Tribunal then considered whether there was a fear of persecution from the LTTE. The Tribunal was sceptical of the claim that the LTTE would have attempted to recruit the applicant who is Sinhalese and who was a police officer at the time. The Tribunal noted that even if it were to accept that claim, it had difficulty in believing that he had chance to meet one of the same LTTE operatives in Colombo in 1996 and had been asked to transport explosives for the LTTE. The Tribunal had even greater difficulty in accepting that the applicant having been confronted with that situation and having been told he would be killed if he did not accede to the demands, did not go to the police.
The Tribunal noted, however, that even if it were to accept all of the claims in relation to the LTTE, the applicant stayed in Colombo for several weeks after he had consistently refused the LTTE operative's request and came to no harm. The Tribunal concluded that it was only remotely possible that he would now be harmed for not assisting the LTTE if he were to return to Colombo or any region of Sri Lanka not under LTTE control. The Tribunal referred to a letter from the Australian High Commission in 1993 stating that in the last two years there have been no information that Tamils opposing the LTTE were targeted by them.
The Tribunal noted in relation to this information that if the applicant's evidence was to be accepted he was not even an opponent of the LTTE but merely refused to involve himself in dangerous and illegal activity on their behalf. It is thus apparent that in relation to the LTTE, although country information was referred to, the Tribunal's decision in this case was as a result of its scepticism of the claims made by the applicant.

The decision

In Muin the Minister's delegate had relied on some 31 items of evidence. After the applicant applied to the Tribunal for a review of the delegate's refusal to grant him a protection visa he was advised by the Tribunal that it had asked the department to send to the Tribunal a copy of "its documents about your case" and that when it had received them the Tribunal would "look at them, along with any other evidence on the Tribunal file". In fact the file dispatched to the Tribunal did not include copies of the relevant documents. In his application to the High Court Mr Muin stated that had he been aware of the fact that the department might not have physically transferred all of the documents to the Tribunal he would have made submissions to the Tribunal going to the content of the documents and would have sought to adduce evidence in addition to that which he did send to the Tribunal.

It was held by a majority of the High Court that there had been a failure to accord procedural fairness to Mr Muin in relation to the documents and because of an omission to acquaint him with the written submission from the department directed to whether the Indonesian authorities were willing and able to provide protection to citizens of ethnic Chinese background some of that information was adverse to Mr Muin.
The present case is a very different case. In material placed before the High Court, which is the same material before the Federal Magistrates Court, the applicant has made no detailed analysis of the Tribunal's reasons for the purpose of identifying material on which it relied on which he says in his contentions about which he did not have the opportunity to respond. (see Applicant M142/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 585 per Gray J at paragraph [11]) Further, the applicant made no attempt to say what he would have done if he had been notified of any adverse material and what material he might have put to the Tribunal that might have brought about a different result.
There is no indication in the reasons of the Tribunal that it gave the applicant an opportunity to comment on the country information before it made its decision. However, in the absence of any affidavit material from the applicant it is impossible to know whether it would have made any difference to the case if he had received prior notice of the country information referred to by the Tribunal. Nor has he shown what he would have said if he had been given the country information to comment upon assuming that he was not.
The words of Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte A (supra)at [501] are apposite:
Thirdly, the applicant has not placed before this court a clear indication of the type of evidence or material that he would have placed before the Tribunal if he had known of the country information made available to it. In default of some indication of the nature of the opportunity which the applicant says he was denied (and the presentation of evidence or material that would constitute an arguable case that might result in a different outcome) any omission by the Tribunal to disclose the country information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in this case.
Nor was there any material before me of a kind which would lead the court to conclude that the outcome of the decision would have been different if the applicant had been given the opportunity to comment on the country information. (see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) HCA 6; (2003) 195 ALR 502; followed in Applicant M115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1448)
I accept the submissions of the respondent that it is not sufficient in providing evidence in a case of this kind, having regard to the authorities, for an applicant to simply assert that in general terms there was material relating to violence in Sri Lanka and the JVP to which he was not given an opportunity to respond without identifying the material and without giving some indication of what evidence he might have adduced had he been given that opportunity. The material before the court in the present case is thus insufficient to provide an arguable basis for this application. I am therefore satisfied there is no arguable basis for the application and that the evidentiary material produced on behalf of the applicant is insufficient to persuade me there is material of any kind which would enable the court to grant the order nisi.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 1 June 2004