M130 of 2003 v Minister for Immigration
[2004] FMCA 348
•1 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M130 of 2003 v MINISTER FOR IMMIGRATION | [2004] FMCA 348 |
| MIGRATION – Application seeking an Order Nisi to quash a decision of the Refugee Review Tribunal not to grant a protection visa – application dismissed in default of appearance. |
Federal Magistrates Court Rules 2001, Rule 13.03A(c)
Applicant M120/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 335
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 M130 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 92 of 2004 |
| Delivered on: | 1 June 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 1 June 2004 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr Carroll |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application for the order nisi is refused.
That the applicant pay the respondent's costs fixed in the sum of $2000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 92 of 2004
| APPLICANT M130 of 2003 |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from the Transcript)
This proceeding is similar to Applicant M120/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 335. The applicants in these proceeding are the wife and children of the applicant in M120/2003. This application is also the hearing of an order nisi seeking to quash a decision of the Refugee Review Tribunal (the Tribunal) made on 8 June 2000. As with the case in M120/2003, the applicant was joined in the successful Lie v Minister for Immigration and Multicultural Affairs [2002] HCA 30 and Muin v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 601 representative proceedings in the High Court. The application was remitted from the High Court to the Federal Court and was transferred to the Federal Magistrates Court by order of Marshall J on 9 October 2003.
On 9 October Marshall J made a number of orders and the reasons will set out the detail of the orders. In compliance with those orders contentions of fact and law were filed on 31 October 2003, although similarly to the position in M120/2003, they do not set out the applicant's case with any more particularity than the order nisi.
On the 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. The authorities for this proposition are 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 the Minister and Anor [2004] FMCA 154 in support of that proposition.
The Tribunal's decision
The Tribunal described the applicant's case as substantially similar to that of her husband. The applicant is a Sri Lankan woman with two daughters. She worked in catering and beauty culture. To the extent that her claims are identical to those of her husband, I have already dealt with them in the reasons for judgment delivered this morning in relation to the matter of M120/2003.
The applicant before the Tribunal relied upon the same substratum of facts relied upon by her husband in claiming that the family feared persecution for a convention reason from three different sources; namely, the LTTE, the PA and SLPF political parties and the JVP. The concerns and claims of the husband which are also those of the wife have been dealt with by me in the Reasons for Judgment in M120/2003.
In addition to those claims, however, the applicant claimed that after her husband left Sri Lanka for Australia the police and the CID came to her home. The applicant claimed the police handed her a warrant and she produced to the Tribunal a document from the police written in Sinhalese. It was ascertained that it referred to her husband and stated there was a complaint that he was involved in terrorist activities. It required him to attend at a special criminal investigation section on 10 October 1996. The applicant told the Tribunal that she received it in October, although in her written statement she said that she received it in September. The applicant said that the CID returned twice more and told her that if her husband did not return to Sri Lanka she would be arrested. The applicant was not able to give the Tribunal any reason why her husband might be involved, other than that he was powerful in the UNP.
She also claimed that on one occasion she had woken early and heard a noise and learned that someone in the front of the house had been stabbed. She claimed that in addition to her husband's claims, which essentially she adopted, that she feared for her safety and that of her children and left Sri Lanka. Her fears were articulated to the Tribunal as being because her husband was a UNP supporter. In its reasons the Tribunal considered country information in relation to UNP membership. The gravamen of that information was that whilst there was considerable unrest in Sri Lanka and violence involving politics, particularly around election time, but since the 1994 general election politically-motivated violence had decreased considerably and that occasional incidents of violence had continued to occur.
The country information stated:
The claims of political harassment of UNP members and supporters should be viewed with scepticism. There may be individual cases of political rivalries leading to violence, but all parties have equal access to the law and police protection.
The applicant also raised a matter not relied upon by her husband. That was to describe to the Tribunal some concern occasioned by the fact that the parties had rented out a room to a young Tamil from the north or east of the country. The Tribunal also considered some country information in relation to the position of having a Tamil renting a room.
In its findings the Tribunal essentially dealt with the matters in the same way that the husband's application had been dealt with. Those matters are traversed in my reasons for judgment in M120.
In considering the applicant's specific claims about what had occurred to her after her husband had left Sri Lanka the Tribunal considered it implausible that the LTTE would approach the applicant's husband to support them as he had claimed, particularly if one of the LTTE people was one of the Tamils who had lived under their roof. The Tribunal considered that given that the applicant's husband did not do anything to support the LTTE it was implausible the police would come to the applicant's house after her husband's departure with a warrant about a complaint that he was involved in terrorist activities. The Tribunal considered it also not plausible that the police would come looking for the applicant after he had left the country several months before.
As a result, the Tribunal did not accept that the warrant was genuine, nor that the applicant was visited by either the police or the CID after her husband's departure. The Tribunal also considered it implausible that the police would threaten to take the applicant if her husband was not found. It noted that Sri Lanka has a well-developed legal system inherited from the British and the Tribunal did not accept that such a threat would either be plausibly made or seriously taken. The Tribunal pointed out that the applicant had only to state that her husband had gone to Australia, something that could have been verified, and there would have been no more visits.
The Tribunal accepted that the applicant might have witnessed the aftermath of a stabbing in a house near hers, but noted that witnessing such an event, while a possible explanation for her desire to leave Sri Lanka, was not a claim based on convention grounds. As a result the Tribunal affirmed the decision not to grant a protection visa on the basis that the applicants did not satisfy the criterion under section 36(2) of the act for a protection visa.
In the material filed by the applicant in 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 she says it relied and about which she says she 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]). 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 she had received prior notice of the country information referred to by the Tribunal, nor has she shown what she would have said if she had been given the country information to comment upon assuming that she had not.
In the words of Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte A at paragraph [501] are apposite.
Thirdly, the applicant has not placed before this court a clear indication of the type of evidence or material that she 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.
I note further in this case that whilst the Tribunal did rely to some degree on country information, a large part of the Tribunal's decision in this matter was based upon its rejection of the evidence of the applicant on the basis of its implausibility. But, further, there was no 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 Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) HCA 6 followed in Applicant M155/2003 v Minister for Immigration (2003) FCA 1448).
It is not sufficient in providing evidence in a case of this kind, having regard to the authorities, for an applicant simply to assert in general terms there was material relating to violence in Sri Lanka and the JVP to which she was not given an opportunity to respond without identifying the material and without giving some indication of what evidence might have been adduced had that opportunity been given. 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 the evidentiary material 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 should say something about the way in which the matter proceeded this morning. Although this matter and M120/2003 was supposed to be heard together, for reasons that are not clear to me they were listed separately. Again I was not aware that this matter was listed before me when I heard M120/2003. I gave the opportunity to the applicant in M120/2003 to have both matters heard together, but he sought that I proceed with his matter, which I did and I delivered reasons this morning. The applicant in M120/2003 appeared and with the aid of an interpreter made submissions. He appeared earlier in the week when this matter was listed and an adjournment was granted on the basis that there was medical evidence that the applicant in this matter was not able to attend court on that day. The matter was adjourned until today.
The applicant was in court and copies of the order made, in any event, were sent. There was no appearance before the court this morning of the applicant and the applicant in M120 was not present to hear the reasons for judgment in his matter.
I canvassed with counsel for the respondent whether it would be more proper to dismiss the matter under Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 which provides for a dismissal of an application in default of appearance of a party. The respondent submitted that I should deal with the merits of the order nisi. In the circumstances, given that it is an order nisi to review and given the fact that much of the applicant's claim is in identical terms to that of her husband in matter M120/2003, I was satisfied that this is a case in which it was appropriate to proceed to deal with the merits of the application for the order nisi rather than to dismiss the matter in default of appearance.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 2 June 2004
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