M152 of 2003 v Minister for Immigration - [2004] FMCA 990

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M152 of 2003 v MINISTER FOR IMMIGRATION

[2004] FMCA 990

MIGRATION – Refugee visa – whether documents available to Tribunal – whether submissions to Tribunal would have been different – whether error shown.

Muin v Refugee Review Tribunal [2002] 190 ALR 601

Applicant:

APPLICANT M152 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 93 of 2004

Delivered on:

17 December 2004

Delivered at:

Melbourne

Hearing date:

25 May 2004

Judgment of:

Phipps FM

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondent:

Ms Riley

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is refused.
The Applicant pay the Respondent’s costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 93 of 2004

APPLICANT M152 of 2003

Applicant

And

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The first applicant is a citizen of Sri Lanka. The second applicant is her husband. The first applicant arrived in Australia on 20 December 1996. She lodged an application for a protection visa on 13 February 1997. The application was refused by a delegate of the respondent on 29 May 1997. On 23 June 1997, the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 8 April 1999.
The applicants were joined in the representative proceedings in the High Court in the matter known as the Muin Lie proceedings. After that matter was determined, the applicants were given special leave to lodge an application in the High Court on or before 31 May 2003. The applicants filed a draft order nisi and affidavit in support in the High Court on 21 May 2003. The matter was remitted to the Federal Court.
On 14 October 2003, Marshall J. ordered that the application be conducted as a single hearing. The matter was subsequently transferred to the Federal Magistrates Court.

The applicants claims

The first applicant claimed that she was of Sri Lankan nationality, Sinhalese ethnicity and Buddhist religion. She had lived at one address from 1970 to 1996 before she departed for Australia.
She claimed that her parents were active members of the local branch of the political party, the UNP. She was also a UNP supporter and became active in politics. She and her brother joined their parents in various activities organised by the UNP. She distributed pamphlets, put up posters, recruited and helped with fundraising. She worked on several women's committees and became well-known in the local area for her work. The second applicant was also an active member of the UNP.
She said that from about 1987, she received a number of telephone threats from members of another political party, the JVP. Those threats increased during a "reign of terror" against the JVP in 1989.
After the demise of the JVP, she actively supported a local UNP candidate. This brought threats and intimidation from another political party, the opposition SLFP. She made numerous complaints to the police but they never acted on them. She said there were often skirmishes with opposition members. She herself was not involved in physical clashes but the second applicant was involved in some which resulted in the police being called.
She said that when the opposition won the election in 1994, her home was broken into and her husband was set upon by a group of thugs.
The first applicant claimed that she had gone into hiding at her parents’ house. She said that she feared that if she returned to Sri Lanka, she could be persecuted at the hands of the political party, the PA, because of her support for the UNP.

The Tribunal’s finding

The Tribunal gave weight to how the applicants had come to Australia. The second applicant had come to Australia on a student visa. The first applicant had come as a student dependent. The Tribunal considered that the second applicant’s desire to study in Australia appeared to be genuine at the time his student visa was granted. The second applicant had difficulty financing his studies and applied for a cancellation of the student visa. It was only after this had occurred that the protection application was made.
The Tribunal was not satisfied that the first applicant's knowledge of the UNP verified her claim that she had been a long-term and active member. However, it accepted that levels of knowledge may differ and considered the claims as though the applicant was an active UNP member and her husband a supporter.
The Tribunal referred to the claimed break-in at the first applicant's home and the attack on the second applicant by a group of thugs and the receipt of telephone threats. The Tribunal did not consider that this amounted to persecution. It accepted that one act may constitute persecution for the purposes of the Convention, and that it was reasonable that anyone would be disturbed by threats, but the Tribunal considered that there was no evidence that there had been any attempt to carry out the threats.
The Tribunal was satisfied that the first applicant and second applicant were, at the most, minor players in the politics of the UNP, that they had not been politically active since the end of 1994 and that there was no indicator that they would be the target of some other party for what they had done in the past. The Tribunal said that while it had doubts about the genuineness of the claims, it assessed the situation on the applicants’ terms. The Tribunal was not satisfied that they were persecuted prior to leaving Sri Lanka. It was not satisfied that they were people who would attract persecution in the future if they returned to Sri Lanka.

The applicants claims

The draft order nisi contained general allegations of error with no particulars specific to the applicants’ claims. An affidavit by the applicant said that by a letter dated 30 October 2003, the solicitors for the first respondent sent copies of the available country information from part B of the Protection Visa Decision Record.
The affidavit said that by letter of 30 June 1997, the Tribunal wrote advising that it had requested the Department of Immigration and Multicultural Affairs to forward copies of its documents in the first applicant's case to the Tribunal. The affidavit said that by letter of 29 May 1997, the delegate of the respondent had written to the applicants and that letter contained the Protection Visa Decision Record. Paragraph 5.2 of that document was a list of material described as Part B material. By letter dated 12 February 1999, the Tribunal advised it had looked at the material relating to the application but it was not prepared to make a favourable decision on this information alone. The first applicant said she had elected to appear at the Tribunal.
The affidavit said that the first applicant, at the Tribunal hearing, was not aware that the Tribunal may not have received some or all of the Part B documents. The affidavit said that at the hearing, no reference was made to the Part B documents. The Tribunal referred to having read the latest “stuff” off the Internet as to what was happening in Sri Lanka and referred to a quote from the Sri Lanka Monitor concerning the behaviour of thugs in the run-up to the latest election.
The affidavit then went on to say that had she known the situation, she would have taken steps to make submissions in regard to adverse and favourable passages in those documents. The affidavit said that the first applicant would have wanted her solicitor to make further inquiries and provide further evidence. The affidavit then referred to certain documents which the first applicant said were contained within the list.
Contentions of fact and law were filed on behalf of the applicant. They had been prepared by pro bono counsel. The first ground alleged in that document, the decision of the Tribunal had been made without jurisdiction because of a failure to accord the applicant procedural fairness. It referred to the circumstances about the Part B documents as described in the first applicant's affidavit. It said that it was presumed that the Tribunal did not have the Part B material documents. It claimed that the applicant had been misled and had been prevented from making appropriate submissions.
In Muin v Refugee Review Tribunal [2002] 190 ALR 601, the High Court held that there had been a failure to provide procedural fairness in relation to Part B documents. In each case before the High Court, there was an agreed statement of facts. It was agreed that the plaintiff believed that the Tribunal had received the Part B documents, that the Tribunal did not have them and that if the plaintiff had known, he or she would have acted to correct their absence. At [256] of the decision, Hayne J. said that the party's agreement about the facts meant that there was no need to consider the difficult factual and evidentiary issues that would otherwise arise.
In the present case, there is no direct evidence that the documents were not sent to the Tribunal. If there is to be such a finding, it must be by way of evidence. The first applicant's affidavit said that at the hearing, the Tribunal made no reference to the Part B documents. It does not follow that the Tribunal had not referred to them. The Tribunal’s reasons show that the Tribunal had read the delegate’s decision. The Tribunal refers to the delegate’s listing of a number of inconsistencies in the application and subsequent submissions and evidence. It can be inferred from this that the Tribunal was aware of the list of documents described as Part B.
The Tribunal has not referred to any of the Part B documents but that does not mean that it had not read them. It is not surprising that they were not referred to in the Tribunal's reasons. The Tribunal's decision is based on matters specific to the applicants. The Tribunal said that it had taken into account the vague nature of the source of the threats that the applicant said had been made. It said that neither applicant was able to identify clearly the source of the threats, naming the PA and JVP as likely suspects. The Tribunal referred to the fact that the applicants left Sri Lanka without hindrance and on legal documents. They had given no evidence of any official action against them. It accepted that the current party in power was not the one they supported. That in itself did not amount to a finding that the applicants would face any real chance of persecution.
The substance of the Tribunal's finding was that they were, at most, minor players in the politics of the UNP, that they have not been politically active since the end of 1994 and that there was no indication that they would be the target of some other party for what they had done in the past.
The existence of violence and threats associated with political parties in Sri Lanka was not central to the Tribunal's decision. The Tribunal's decision shows that it accepted that that was the case. It did not need to refer to any of the detail of political violence and threats because of the findings of fact made about the applicants. They were not at risk. Therefore, the information contained in the Part B documents was of significance to the Tribunal's decision only as background. The background was existence of political violence in Sri Lanka. The Tribunal accepted that.
Even if the Tribunal had not read the Part B documents and the applicants knew that, the applicants have not established that they would have conducted the case before the Tribunal any differently. The first applicant, in her affidavit, says that she would have done so by having her solicitor conduct inquiries and make submissions. I am not satisfied that that was the case. In cross-examination, it was apparent that the applicant had little knowledge of the documents. That is not material. What is material is whether those representing her would have behaved differently if they had known that the Tribunal had not read the documents.
The applicants have not established that they would have, or even might have. The Tribunal's description of the evidence and hearing shows that the circumstances in Sri Lanka were not in dispute. Investigation by the Tribunal was into the applicants’ particular circumstances. The issue was the applicant’s involvement in political activity as they claimed and the consequences to them personally. While the Tribunal had doubts about the claims, it was prepared to proceed on the basis that they were correct and then reach the conclusion that they were not at risk of persecution.
The matters which the applicants’ claimed would have been referred to in the Part B documents, do not go to the applicants’ particular situation. They go to the political situation generally in Sri Lanka. It can be inferred from the Tribunal's decision that it accepted what the applicants said about the political situation in Sri Lanka.
The applicants have not established that they were disadvantaged, even if the Tribunal had not read the Part B documents.
As well as the natural justice ground, the applicants’ contentions alleged a number of jurisdictional errors in that the Tribunal had identified wrong issues, ignored relevant material, had regard to irrelevant material, applied incorrect tests or misapplied the correct test.
The applicants’ contentions claimed that the Tribunal had ignored the first applicant’s evidence that after the break in to her house, by hiding she was able to avoid being harmed. That is not correct. The Tribunal did not ignore the evidence. It did not accept it. The Tribunal said that the first applicant only said later in her evidence that she had gone into hiding and that all the other evidence indicated that she had remained at one address until she came to Australia. The Tribunal said in its reasons that having found that the first applicant continued to live at the same address, it was satisfied she was able to live there safe from persecution.
Paragraph 2(c)(ii) of the contentions said that the Tribunal accepted that there was much general violence in Sri Lanka and that the applicants feared for their own and their child’s safety if they returned, but was not satisfied that the fear was well founded in the Convention seats. The contentions claimed that the evidence before the Tribunal was that the violence was related to the applicants’ political activities and the political situation and was therefore related to the Convention reason. This amounts to no more than an allegation that the Tribunal had made an error in the fact finding process. It is not a jurisdictional error.
The contentions claimed that the Tribunal failed to have regard to the State failing to provide protection. However, the Tribunal held that the applicants did not experience persecution and did not face a real chance of persecution in the future. The question of State protection did not arise.
The contentions claimed that the Tribunal failed to consider the second applicant’s claim that his political beliefs might impinge on his employment opportunities. The evidence of the second applicant was that a party association could help employment. This evidence was not that being a supporter of a political party would result in a person being unable to find a job reasonably commensurate with his abilities and qualifications. There was no other material to this effect. There was nothing to suggest that the second applicant faced discrimination in relation to employment that could be of such seriousness as to amount to persecution. So far as employment is concerned, there was not a relevant matter for the Tribunal to consider.
The contentions claimed that the Tribunal failed to speculate as to the possibility of the applicants suffering persecution if they were to be returned to Sri Lanka. The Tribunal did consider this issue and found that is was not satisfied that the applicants were people who would attract persecution in the future if they returned to Sri Lanka.
There has not been a failure by the Tribunal to consider relevant matters.
No basis for an order nisi has been shown. The application is refused.

I certify that the preceding Thirty-five (35) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: