M144/2003 v The Hon. Philip Ruddock

[2004] FMCA 349

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M144/2003 v THE HON. PHILIP RUDDOCK & ANOR [2004] FMCA 349

MIGRATION – Application seeking an Order Nisi to quash a decision of the Refugee Review Tribunal – non-appearance of applicant – application dismissed on the merits.

Federal Magistrates Court Rules 2001, Rule 13.03A

High Court of Australia Rules 1952

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 M144/2003

Respondents: THE HONOURABLE PHILIP RUDDOCK & ANOR

File No: MZ 1532 of 2003

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 Respondents: Mr J. Giacco

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application for the order nisi is refused.

2. That the applicant pay the respondent's costs fixed in the sum of $2000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1532 of 2003

APPLICANT M144/2003

Applicant

and

THE HONOURABLE PHILIP RUDDOCK & ANOTHER

Respondents

REASONS FOR JUDGMENT

(Revised from the Transcript)

1. The proceeding before me is an order nisi seeking to quash a decision of the Refugee Review Tribunal (the Tribunal) made on 21 June 2000.  The matter 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 a decision of the delegate of the first respondent, (the Minister), refusing the applicant a protection visa. 

2. The matter came to be remitted to the Federal Court as a result of the applicant joining the representative proceedings in the High Court in Lie v Minister for Immigration and Multicultural Affairs [2002] HCA 30 and the 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 with the High Court. Before transferring the matter to the Federal Magistrates Court on 9 October 2003 Marshall J made the following orders:

   (1)    The application for an order nisi and the hearing of the return of the order nisi, if granted, be conducted as a single hearing. 

   (2)  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, reasons why an extension of time should be granted;

   (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 principle 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.

   (6)  Costs be reserved.

3. The applicant has complied with the order of Marshall J in the sense that contentions of law were filed on 27 October 2003.  The applicant has not filed any material in support of an extension of time, nor has the applicant filed any affidavits.  The only affidavit material was that which accompanied the order nisi filed in the High Court. 

4. Whilst it could be argued that the contentions themselves do not particularise any further than the material already before the High Court the grounds relied upon, there was no directions hearing which effectively required the applicant to show cause why the matter should not be dismissed for noncompliance with the orders.  The matter was rather left in the list for the hearing of the application for the order nisi and, if granted, the return of the order nisi. 

5. 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 (see R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw (1952) 1 All ER 122 per Denning LJ at 131 and Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte A (2001) 185 ALR at 501, both cited by McInnis FM in M144/2003 v Minister for Immigration and Anor [2004] FMCA 154 in support of that proposition).

6. The order nisi asserts a number of general claims that the decision was affected by jurisdictional error.  In relation to the particular matter in which the applicant was given leave to join the representative proceedings, the applicant alleges that in making its decision the Tribunal failed to observe or breached procedural fairness in that it relied upon a large body of material relating to the situation with the LTTE in Sri Lanka without giving the prosecutor the opportunity to respond to those materials. 

7. In the contentions filed by the applicant the applicant contends in paragraph 5 that in making its decision the Tribunal failed to observe or breached procedural fairness in that it relied upon a large body of material relating to the situation with the LTTE in Sri Lanka without giving him the opportunity to respond to those materials.  The applicant further contended that in particular a country report on human rights practices being a DFAT country information report number 0400 of 1 February 2002 which the applicant refers to as relating to Fiji law is claimed by the applicant to have been relied upon by the Tribunal.  He asserts that he did not receive any documentation referred to at the hearing, nor were such reports and information discussed with him, nor did he know their contents. 

8. Insofar as the document which the applicant describes as relating to Fiji is concerned, there does not appear to be any reference by the Tribunal to such a document and it may be that the applicant has misunderstood the document referred to.

9. The claims made to the Tribunal by the first applicant who is a citizen of Sri Lanka are set out in the decision of the Tribunal.  The applicants in the case are the husband, wife, daughter and son, but the first applicant who I have referred to as the applicant was the only applicant who made submissions or provided any material to the Tribunal.  The applicant is Sinhalese and apparently conducted a business in an isolated part of the country.  He claimed before the Tribunal persecution for a number of reasons.  He claimed that he was sympathetic to Tamils who worked for him, that a servant coming to visit was arrested, taken into custody and interrogated, that neighbours complained about the number of Tamils coming in and out of his home and when he confronted them they started to spread rumours that he was helping transport goods for the LTTE. 

10. After this he started receiving threatening letters and phone calls.  Abusive phone calls were made on his business phone and he was threatened with violence.  Vehicles came to his home and parked outside.  On one occasion someone who was sent to investigate was badly assaulted.  He found two bullet shells in his front yard.  There were threats to bomb his home.  He was told that he should remove one of his children from school and send her to a school for Tamils.  He told the Tribunal that complaints had been made to the police but no action had been taken and that in fact the police had threatened him and told him that if they found evidence he had been collaborating with Tamils and the LTTE he would be arrested.  He said that he feared for his safety and feared that there was a real chance of persecution from Sinhalese neighbours and the security forces.

11. He appeared before the Tribunal.  It is clear from the Tribunal's decision that the Tribunal had before it country information in relation to Sri Lanka and in particular to the LTTE.  When the Tribunal came to its findings and reasons it appears that there was only one piece of country information upon which the Tribunal relied which appears at page 16 of the Tribunal's decision.  The Tribunal said:

    As DFAT cable CX49036 makes clear, a Sinhalese person is less likely to be suspected of involvement with the Liberation Tigers of Tamil Elam (LTTE). 

12. The Tribunal then went on to consider the claims made by the applicant.  The Tribunal did not accept that the applicant was detained and questioned along with his Tamil servants and did not accept that claim as it was not made in his original statement.  The Tribunal also noted that the applicant's wife had testified the police were raiding their house continually and the Tribunal did not accept that claim because the applicant did not make the claim in his original statement or in his testimony nor in his complaint to the Human Rights Taskforce.  Given the seriousness of such raids and the apparent motivation for going to the Human Rights Taskforce, the Tribunal opined that it was inconceivable that he would not tell them or that they would not mention such raids. 

13. The Tribunal said that it would give the applicant the benefit of the doubt and accept that he and his wife had added to their account rather than invented the whole history.  The Tribunal accepted that the applicant and his family were under suspicion from their neighbours of having aided and supplied and dealt with Tamils believed to be LTTE members and therefore had been imputed with a pro-LTTE political opinion.  However, given the inconsistent evidence by the applicant and his wife and what the Tribunal saw as invented claims, the Tribunal was not prepared to accept that the applicant or his family had suffered the threats and the assault on his servant.

14. The Tribunal found that the imputed political opinion led to social ostracising by some of his Sinhalese neighbours.  However, the Tribunal found that social ostracising was not serious enough to constitute persecution.  The Tribunal rejected the applicant's claim that he had an imputed profile with the authorities rather than with the neighbours.  The Tribunal found that the demise of the applicant's business was a factor in his decision to leave the area, but was not serious enough to constitute persecution.  The Tribunal found that the applicant's imputed pro-LTTE political opinion derived entirely from his business activities in hospitality given that the Tamils associated with that business.  Since that business was no longer being conducted by him the Tribunal found that he would not now three years later be imputed with such an opinion, and in any event, that opinion would have been confined to some of his neighbours.

15. Based on those matters the Tribunal found the applicant did not have a well-founded fear of persecution for reasons of his imputed pro-LTTE political opinion now or in the reasonable foreseeable future. 

16. The way in which the matter comes before me does not involve the court in considering on other grounds which might arise under the Migration Act whether or not the decision is attended by jurisdictional error.  The matter before me concerns a contention by the applicant that the Tribunal has failed to observe the rules of natural justice in failing to provide the applicant with what he describes as a large body of material relating to the situation with the LTTE in Sri Lanka without giving him an opportunity to respond to those materials. 

17. The first matter which in my view is relatively clear from the decision of the Tribunal is that the Tribunal's decision was only in very small part based upon country information.  Most of the Tribunal's decision rested upon the fact that the Tribunal did not accept the claims as made by the applicant to some of the threats and assaults that he alleged and overall did not consider that he had been persecuted for a convention reason. 

18. 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 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.

19. 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.

20. The present case is different.  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 and which he says in his contentions 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 has 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.

21. 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.  In 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 is 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 country information (see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) HCA 6 followed in M115 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1448).

22. 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 the situation with the LTTE in Sri Lanka to which he was not given an opportunity to respond without identifying material and without giving some indication of what evidence he might have adduced had he been given that opportunity.

23. The evidence in the present case is thus insufficient to provide an arguable basis for this application.  I am satisfied there is no arguable basis and 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. 

24. I should also refer to the question of time limits.  The High Court of Australia Rules 1952 provide for an order nisi to be filed within six months.  The applicant is clearly out of time in relation to that application and there is, in addition, a failure to provide any information or to seek an extension of time in all the circumstances. 

25. Finally, for completeness I should make reference to the way in which the matter has proceeded before me this morning.  The matter was listed for hearing at a Directions Hearing on 17 March 2004.  It was listed for hearing on 25 May 2004.  The matter was ultimately listed on 28 May.  On 27 May at about 3.30 pm the applicant faxed to the Federal Magistrates Court a document from the Glenhuntly Medical Centre dated 26 May 2004.  That document purports to be signed by a doctor and says:

    This is to certify the above patient has severe form of psoriasis and has been treated at St Vincent's Hospital with the help of a dermatologist.  Therefore, he could not attend the hearing by the court on 28 May 2004 as he cannot walk due to the fissuring of the feet.

26. There is no indication of the time in which the applicant might not be able to appear.  The medical certificate had written upon it the following:

    I apologise for not being able to attend the hearing on Thursday, 28 May due to my illness.

27. No other information accompanied the letter. Accordingly, I adjourned the matter to 1 June at 11.15 am for hearing. There is no appearance this morning by the applicant. It is open to me to dismiss the application pursuant to Rule 13.03A of the Federal Magistrates Court Rules 2001.  That rules says:

    Default of appearance of a party.

    If a party to a proceeding is absent from a hearing, other than the first court date, the court may do any of the following: 

    (c) if the party absent is an applicant or a respondent who has made a cross-claim - dismiss the application or the cross-claim.

28. If I were to dismiss the application under Rule 13.03A it would not be a dismissal on the merits. I heard submissions from counsel for the respondent as to whether the application should be dismissed on that basis or dealt with on the merits. The respondent contended that I should deal with the matter on the merits, and I have determined to do so. The reason that I have done so is because this matter is, firstly, an application for order nisi to review and the applicant is required to put before the court the evidence upon which he seeks to rely and for the reasons that I have set out he has not done so.

29. Furthermore, there is the issue of the extension of time which he might otherwise need which has not been addressed at all.  I am satisfied that there is nothing further that the applicant could have reasonably put to the court had he been present.  In the circumstances of this matter I am satisfied that it is appropriate for the court to proceed to deal with the merits of the application as I have done.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate:  Peter Smith

Date:  2 June 2004