M125 of 2003 v Minister for Immigration
[2005] FMCA 405
•7 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M125 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 405 |
| MIGRATION – Muin claim of breach of procedural fairness – whether Tribunal had access to Part B documents – whether Tribunal considered material matters in Part B documents. |
| Muin v Refugee Reviewed Tribunal [2002] HCA 30, 190 ALR 601 NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 118 at [14,15] Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150 Applicant M153 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 251 |
| Applicant: | APPLICANT M125 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MZ 1516 of 2003 |
| Judgment of: | Phipps FM |
| Hearing date: | 4 March 2005 |
| Date of Last Submission: | 4 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 7 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kappadath |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondent: | Ms Moore |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $7,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1516 of 2003
| APPLICANT M125 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
On 22 May 2003, the applicant commenced proceedings in the High Court of Australia for Writs of Prohibition and Certiorari concerning a decision of the Refugee Review Tribunal handed down on 11 August 2000.
The application was remitted to the Federal Court of Australia and then transferred to the Federal Magistrates Court of Australia.
The applicant arrived in Australia on 10 February 1998 on a visitors visa. On 27th February 1998, he made an application for a Protection visa. On 6 March 1998, a delegate of the Minister refused to grant the visa and on 19 March 1998, the applicant applied to the Tribunal for review of the delegate’s decision. In August 2000, the Tribunal handed down its decision and affirmed the delegate's decision to refuse the visa.
The applicant's claims
The applicant is a 39-year-old citizen of Sri Lanka. His family was involved in the fisheries industry. He claimed that in 1998 he was the manager of an aquaculture company. He was an organiser for the United National Party. He was appointed chief organiser of the party in his village and he took to serious politics and started campaigning for the party during the General Election in 1994 and the Presidential Election held soon after in the same year. His brother was an official of the party in the village.
In 1994, at the August general election, the People's Alliance Party came in to power defeating the United National Party. He said that during the Presidential Elections, several unknown people came to his house and threatened him and his brother with death. After the election he said that their political opponents continue to harass him. He said that one day on his way to the party branch in the night, he was assaulted and his arms and legs were broken. He later identified his assailants as supporters of the People's Alliance government.
The applicant said that his brother disappeared after the 1994 elections.
The applicant said that he did not get involved in any political activity at that time because he was frightened for his safety. He still felt unsafe and went to Japan for two months in 1997. He feared for his safety if he returned to Sri Lanka.
The Tribunal's findings
The Tribunal accepted that the applicant may have been involved with his family in some local election campaigning in 1994 for the UNP in his local village. The Tribunal accepted that there may have been some local harassment at the time.
The Tribunal referred to an Australian Department of Foreign Affairs and Trade cable of 30 December 1996 which commented on political rivalries between the two major political parties in Sri Lanka. It said that there had been cases reported in the local papers of the UNP members, at the local government level, being involved in violent incidents with supporters of the People's Alliance. It said that politics in Sri Lanka, particularly at the local government level, could be very vigorous and political violence in Sri Lanka crossed political boundaries.
It said that since the 1994 general election, politically motivated violence had decreased considerably. It said that claims of political harassment of UNP members and supporters should be viewed with scepticism.
The Tribunal accepted that the applicant may have been attacked in 1994. It said there was nothing that would link this attack to People's Alliance supporters other than the comments by the local village headman. The Tribunal found that it was a one-off event and there was not a real chance that it would recur.
The Tribunal did not accept that the brother's disappearance after the 1994 elections was as a result of his political activities. This was inconsistent with country information and the fact the applicant did not raise the matter until the hearing.
The Tribunal referred to the applicant not participating in any political activities after the 1994 elections. It referred to a United States Department of State report and another Department of Foreign Affairs and Trade cable of 20 February 1998, both of which said that violence takes place around election time. Most of the violence, according to the United States report, is simple hooliganism and thuggery.
The Tribunal said that given the applicant's lack of political profile after 1994 at his local level or any other level, it did not accept that the applicant would have been sought by any People's Alliance supporters after 1994.
The Tribunal did not accept that the applicant had a real chance of persecution by reason of his political opinion or his family relationship if he were to return to Sri Lanka now or in the foreseeable future.
The applicant's claims
The applicant alleges breach of procedural fairness. The applicant joined the Lie/Muin class action (Muin v Refugee Reviewed Tribunal [2002] HCA 30, 190 ALR 601), and claims in his affidavit in support of the application for an order nisi that his case is the same.
The applicant, after making his application for review to the Tribunal, received a letter from the Tribunal dated 19 March 1998 which included a statement that the Tribunal had asked the Department to send a copy of its documents about the applicant's case to the Tribunal. It said that the Tribunal would then conduct a review on the papers.
The applicant received a further letter dated 19 April 2000 which said that the Tribunal had looked at all the material relating to his application but was not prepared to make a favourable decision on that information alone. It invited the applicant to a hearing of the Tribunal to give oral evidence and present arguments in support of his claim.
The applicant received a letter dated 24 October 2003 from the Australian Government Solicitor enclosing a copy of country information used by the Department in their decision on the applicant's protection visa application. These are the documents referred to in Part B of the delegate's decision.
The applicant gave evidence before me by affidavit and orally. He said that three of the Part B documents contain information favourable to his claim.They are a Reuters report dated 17 August 1994, a report in the Sri Lanka Monitor of July 1994 and a report in the Sunday Times of 7 April 1996. All three are referred to in the delegate's decision. They are not referred to in the Tribunal's decision.
The applicant's argument is two-pronged. First, the applicant submits that the inference should be drawn that the Tribunal did not receive the three documents. Second, if it did receive them, because it has not referred to them, it has not considered material matters.
Discussion
The effect of the decision in Muin is summarised by Hely J in NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 118 at [14,15]:
14 As the Full Court made plain in NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 at par [24] Muin does not establish that the sending of letters in terms of the letter of 12 August 2002 would amount to a denial of procedural fairness in circumstances where the RRT has not referred to the Part B documents in its later decision. Rather, Muin holds that there is a want of procedural fairness where an applicant before the RRT is misled into thinking that the RRT has considered particular relevant information favourable to the applicant, and as a result, the applicant does not ensure that such information is placed before the RRT, or drawn to its attention. The later decision of the High Court in Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) HCA 6, confirms that an applicant in a case such as the present must show that he relied to his disadvantage upon communications from the RRT before there is any question of a want of procedural fairness.
15 The elements of the procedural fairness claim in Muin were:
(a) the RRT told the plaintiff that it had asked the Secretary to send a copy of the plaintiff's documents and when they were received, it would look at them along with other evidence on the RRT's file to determine whether it could make a favourable decision;
(b) the RRT informed the plaintiff that it had looked at the material relating to the application;
(c) the plaintiff believed that the RRT had received the Part B documents;
(d) some of the Part B documents were favourable to the plaintiff;
(e) the Part B documents had not been considered by the RRT Member;
(f) the plaintiff had been misled into believing that it was unnecessary for him to draw the favourable information in the Part B documents to the attention of the RRT; and
(g) if the plaintiff had not been misled he would have taken steps to correct the situation, and would have tendered additional evidence in support of his position, including decisions favourable to applicants in analogous situations.
The applicant must first establish, as a matter of fact, that the Tribunal did not receive the documents. The applicant relies on the absence of reference to the documents in the Tribunal's decision, and the absence of reference to them by the Tribunal at the commencement of the hearing held by the Tribunal on 6 July 2000.
In its reasons under the heading "CLAIMS AND EVIDENCE", the Tribunal said it had before it "the Department's file, which includes the applicant's protection visa application and written submissions in support of the application". The tape of the hearing on 6 July 2000 was tendered and played. The Tribunal member says to the applicant at the commencement of the hearing that she has material you submitted to the Department, the decision made on your case and the material you provided to the Tribunal.
It is clear from this evidence that the Tribunal had the delegate's decision. The delegate's decision identifies each of the three documents and quotes extracts from each. Each document is identified in the delegate's decision by name, date, and reference to a number with a CX prefix. The copies of the three documents provided by the Australian Government Solicitor to the applicant all have the relevant number with CX prefix. Each of the documents has at the bottom of each page "Extracted from C.I.S. On-Line Information Services-Sri Lanka".
It is apparent that each of the documents was available electronically. In Muin, Gleeson CJ said at [19]:
Having regard to the nature of that material, and the form in which it was available to the delegate when she made her decision, I would regard it as sufficient compliance with a requirement to give the material to the Tribunal for the purpose of reviewing the delegate's decision if the material was identified, and made available to the Tribunal in the same manner and form as it was available to the delegate. The statutory provision is concerned with access to information, not with possession of paper. The object is to make available to the Tribunal member who reviews the delegate's decision the "evidence" (in the broadest sense) that was before the delegate. In the case of the Part B documents, the Act did not require that they be gathered together in hard copy form and delivered to the Tribunal. No legislative purpose would have been served by such a requirement, and the statutory language does not compel such a conclusion.
The inference to be drawn from this material is that the documents were available to the delegate electronically and that, in that respect, the Tribunal member had the same access to them as the delegate. The lack of a specific reference to the documents by the Tribunal, either in the reasons or at the hearing, does not lead to the inference that they were not available.
The relevance of the documents is that they contain evidence of election violence, including deaths and attacks on UNP members. That is the relevance the applicant puts on them. The documents, which are press reports, concern the election and circumstances surrounding the election. The relevant extracts from them are set out in the delegate’s decision. Therefore, since the Tribunal member had the delegate's decision, the Tribunal member had a further avenue of access to the relevant extracts from the press reports.
While the Tribunal's reasons do not refer to the three press reports, the reasons set out extracts from Department of Foreign Affairs and Trade cables and a United States Department of State report which describe violence during the elections in Sri Lanka overall. The three press reports are more specific. It might be thought that the Tribunal member considered the wider coverage contained in the reports were better information about the election violence and so better material to use for the purpose of the Tribunal's deliberations.
Whether that is so or not, the application for Prerogative Writs fails because the evidence shows that the Tribunal had access to the documents considered by the delegate, in addition, had access to the relevant extracts from those documents because they are set out in the delegate's decision and gave consideration to the relevant matter, violence towards UNP members at election time because material set out in the Tribunal's decision dealt with the relevant violence in a broader manner than the three press reports.
The application is for an order nisi. The Court may either dismiss the application for an order nisi, which is an interlocutory order, or make a final order disposing of the whole matter (Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150, Applicant M153 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 251). I will make a final order disposing of the whole matter.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Phipps FM
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