M128 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 320

FEDERAL COURT OF AUSTRALIA

M128 v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 320

MIGRATION – no point of principle – appeal dismissed

Migration Act 1958 (Cth)
Federal Court of Australia Act 1976 (Cth) s25(1A)

APPLICANTS M128 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V974 OF 2003

MARSHALL J
24 MARCH 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

V974 OF 2003

BETWEEN:	APPLICANTS M128 OF 2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	24 MARCH 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.          The appeal be dismissed.

2.          The applicants pay the respondent’s costs of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

V974 OF 2003

BETWEEN:	APPLICANTS M128 OF 2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	24 MARCH 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. This is an appeal from a judgment of the Federal Magistrates Court given by his Honour, Federal Magistrate McInnis (“the primary judge”) on 1 October 2003.

2. The primary judge dismissed an application by the appellants for judicial review of a decision of the Refugee Review Tribunal (“the RRT”) made on 1 October 2001.

3. The appellants pursued one ground of review before the primary judge. They contended that the RRT failed to take into account relevant matters in making its decision. The appellants identified those matters as:

   “…the claims made by the applicants that they suffered a well founded fear of persecution for a valid reason under the 1951 Convention relating to the status of refugees.”

   Background

4. The appellants are respectively a husband, wife and an infant son. They are citizens of Sri Lanka who arrived in Australia on 2 November 1999. The first appellant claimed an entitlement to a protection visa. The other appellants’ applications depend on the success of the first appellant’s application, as the principal applicant for a protection visa.

5. The appellants did not apply to this Court within the time permitted by the Migration Act 1958 (Cth) (“the Act”) to review the decision of the RRT. Instead the first appellant required the respondent to exercise his discretion under s417 to substitute a more favourable decision for that of the RRT. The first appellant made the s417 application on 20 December 2001. On 15 June 2002 the respondent refused that application.

6. On 22 July 2002 the appellants applied in the High Court for an order nisi. Hayne J remitted that application to this Court, which, in turn transferred the matter to the Federal Magistrates Court.

   The judgment below

7. The primary judge at [14] identified the essential complaint by the appellants with the RRT’s decision. The appellants took issue with the RRT’s view that the first appellant’s political opinion was not a significant motivating factor in the way he was treated by the authorities. The RRT said that:

   “The [first] applicant has been in an unpalatable contractual relationship with the army over some vehicles, possibly involving bribery or extortion.”

   It considered that this relationship may have influenced him to leave Sri Lanka but said that:

   “(it)…is not prepared to make findings on this matter as the applicant  has not been sufficiently candid about his overall situation. It is possible that the difficulty included harassment of some kind, but the tribunal is not prepared to make a finding to this effect.”

8. Before his Honour, counsel for the respondent contended that the RRT’s lack of preparedness to make the findings referred to above should be interpreted to mean that it was not prepared to make “positive findings” about these matters.

9. The primary judge dealt with this aspect of the case before him by saying at [19]:

   “..it is not a jurisdictional error for the RRT … to simply decline to make a finding on a matter where the finding of fact depends almost entirely upon the tribunal accepting either the reliability, sufficiency or credibility of the person asserting the fact.”

   The notice of appeal

10. The primary judge delivered his reasons for judgment on an ex-tempore basis. The notice of appeal filed on 20 October 2003, raised one “ground” alone, it said:

    “The court erred in dismissing the application. Judgement was delivered immediately after the hearing, the Federal Magistrate reading from prepared notes. A copy of the reasons for judgement has not yet been received by the appellants. The appellants have made inquiries from the registry and has been advised that the reasons for the judgment is not ready. The appellant therefore, and in the circumstances reserves the right to file proper grounds of appeal upon receipt of the reasons for the judgement.”

11. On 30 January 2004 the Chief Justice determined pursuant to s25(1A) of the Federal Court of Australia Act 1976 (Cth) that the matter be heard by a single judge.

12. The first appellant filed the notice of appeal without the benefit of legal assistance. He consented to an order adjourning the first directions hearing in the appeal to enable the parties to address the Court on whether the matter should be heard by a single judge or a Full Court, so that a recommendation could be made to the Chief Justice. He also consented, on 26 November 2003, to a program of directions for the filing of an outline of submissions. Those directions did not include the filing of an amended notice of appeal and no such document has been filed.

    The letter

13. In a letter dated 12 February 2004 forwarded to the respondent’s solicitor but not filed in Court, the first appellant said:

    “I wish to state the following facts in support of my belief as to why I should be afforded the protection I seek from the Australian government and permitted to stay in Australia.

    ·Re. the comment on objective fear-though the present situation in the country seems to be peaceful, the objective fear I have in returning to my country is justifiable and reasonable in that, we as citizens of Sri Lanka are aware of the form of how things happen in the country particularly the censorship of the press and media, more so now, with Parliament being dissolved. I do fervently believe that if I do go back to my country I am risking the young lives of my wife and my son and myself-particularly with the countless contract killing carried out in the country.

    ·Re. the comment on my low profile in politics-I have to say that my father was very actively involved in politics and I supported him in every way I possibly could as I shared similar political opinion as my father. I was involved in many ways such as enumerated in my original submission. These acts may seem trivial and of a low profile, but there are instances where people of low profile have been killed by opponents for their participation in as minor acts as putting up posters and canvassing etc. and also, as revenge when they can not reach for those with the high profile.

    ·Re. the comment on disbelieving my fear of our son being kidnapped-this could be established if my son’s class teacher at Happy Kids Kindergarten, Kadawatha, Sri Lanka – the school my son attended just before we left for Australia is contacted and inquiries made. The teacher herself said she could not take responsibility of the child’s safety. Hence, we kept our son away from school the last three months of our stay in Sri Lanka. On occasions where someone is financially able to meet the demands of a ransom, yet you can not ensure the kidnappers would honour their part of the deal. We could no way risk the life of our one and only son who means the world to us.

    ·Re. the comment of not accepting Bimbisha Umega Somawansa to be our daughter-I have to say that, although she was not born to us but, we did take her on as our own from the very instance of her birth hence, we regard her as our daughter and shower her with no less maternal and paternal affection as showered on our son Vishahsad. Her certificate of birth will support our claim. We left her behind in Sri Lanka as we genuinely planned to return to our country when the situation improved and also as my wife’s mother volunteered to look after her during that period of our absence. This separation also contributes further to the mental agony and stress my wife and I have to cope with in addition to not knowing exactly what our plight would be where the safety of our lives are concerned.

    ·Parliament (U.N.P.) in Sri Lanka is now dissolved-this makes my situation more serious and dangerous. I can not in any way return to my country just yet as I am positive I will be pursued and the lives of my wife and child are definitely in danger as well.

    Our immediate relatives are very much concerned about our safety and plead with us not to return to the country just yet. I would therefore most humbly request of you to review my case in the light of the above facts and grant me and my family the protection I require and well deserve-at least on a temporary basis until the situation in Sri Lanka could be assessed as far as myself and my family is concerned.”

    None of that material addresses whether the primary judge erred and if so, in what way.

    The respondent’s outline

14. In response the respondent filed an outline of submissions on 9 March 2004. In those submissions the respondent contended that the primary judge was correct in finding that the RRT had not committed a jurisdictional error. The submissions emphasised that it is a matter for the RRT to decide what weight it will give to the evidence before it, and the assessment it will make of the credibility of witnesses.

15. Additionally, the respondent sought to address a matter, not raised before his Honour. The respondent asserted that the application for an order nisi was, in any event, out of time.

16. Given the view the Court takes about the prospects of success of the appeal it is strictly unnecessary to consider the question of time limits. However, as the issue was not raised before the primary judge, it is impossible to identify any error he made in respect of it. The Court’s role on appeal is to correct error in the judgment of the Court below, if any. No error can be identified in the primary judge’s treatment of a matter not raised before him. In any event the respondent filed no notice of contention on the appeal.

    Conclusion

17. In the absence of a properly framed ground of appeal, it is difficult to sensibly consider the current matter. However, the Court has examined the decision of the RRT and the judgment of the primary judge. It has not been able to identify any jurisdictional error in the decision of the RRT or any legal error in the judgment of the primary judge. None of the submissions made by the first appellant either in writing, or orally today, reveal anything but a disagreement with the findings of fact made by the RRT.

    Order

18. The appeal will be dismissed, with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             24 March 2004

The Appellants were represented by the first appellant
Counsel for the Respondent:	Ms S Moore
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	24 March 2004
Date of Judgment:	24 March 2004