M166 of 2003 v Minister for Immigration - [2004] FMCA 701

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M166 of 2003 v MINISTER FOR IMMIGRATION

[2004] FMCA 701

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa.

Migration Act 1958 (Cth), s.474

Muin v Refugee Review Tribunal & Ors (2002) HCA 30
Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
M115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1448

Applicant:

M166 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 310 of 2004

Delivered on:

7 October 2004

Delivered at:

Melbourne

Hearing Date:

7 October 2004

Judgment of:

Riethmuller FM

REPRESENTATION

Counsel for the Applicant:

Mr Hamilton

Solicitors for the Applicant:

Di Mauro Solicitors

Counsel for the Respondent:

Mr Knowles

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Order Nisi be discharged.
The Applicants’ application be dismissed.
The Applicants do pay the Respondents’ costs of the application, fixed in the sum of $10,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 310 of 2003

M166/2003

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an ex tempore Judgment.
The applicant in this case applied for a protection visa to the Minister for Immigration & Multicultural & Indigenous Affairs (“the Minister”) many years ago. His application was lodged with the Minister on

10 August 1995. The applicant comes from Sri Lanka and comes with his wife and daughter. His application for such a visa was refused by the Minister’s delegate and subsequently the subject of a determination by the Refugee Review Tribunal (“the RRT”) on 21 November 1997.
After the RRT determination the applicant became caught up in a class action that was ultimately determined by the High Court in Muin v Refugee Review Tribunal & Ors (2002) HCA 30. That High Court decision was handed down on 8 August 2002. The applicant subsequently sought an order nisi for review in the High Court by way of material filed on 26 May 2003. The order nisi for prohibition and certiorari that was drafted and attached to the affidavit was based upon the following matters:
The decision made by the second respondent was made without jurisdiction or is affected by error of jurisdiction.
Particulars
(a) The Tribunal failed to accord procedural fairness or breached the rules of natural justice in relation to the documents set out in part B of the Delegate's decision.
(b) The Tribunal failed to accord procedural fairness or breached the rules of natural justice in that it relied on a large body of country information contained in its decision without giving the Prosecutor the opportunity to respond to those materials or without adverting the Prosecutor to the input of such materials.
The matter was remitted to the Federal Court on 13 November 2003. The applicant filed a contention of law and fact in the Federal Court which in its relevant part stated:
(5) The decision made by the Second Respondent was made without jurisdiction or is affected by an error of jurisdiction;
The Tribunal failed to accord procedural fairness or breached the rules of natural justice in relation to the documents set out in part B of the Delegate's decision.
The Tribunal failed to accord procedural fairness or breached the rules of natural justice in that it relied on a large body of country information contained in its decision without giving me the opportunity to respond to those materials or without adverting me to the import of such materials.
In making its decision, the Tribunal failed to observe or breached procedural fairness, in that it relied upon a large body of material, without giving me the opportunity to respond to those materials.
It failed to accord procedural fairness by failing to give me a reasonable opportunity to present my case. Procedural fairness requires that I be given a reasonable opportunity to present a case that I am a refugee as defined in the Convention…
The matter came before his Honour Justice Weinberg on 15 March 2004 after the applicant had been ordered to provide further particularisation of paragraph 5 of his previous statements of facts and contentions. Such further particularisation had been filed in the Federal Court on 15 March 2004. His Honour Justice Weinberg ordered that the applicant be granted an order nisi limited to ground 1 as set out in the further particularisation and then remitted the matter to this court for hearing.
Ground 1 of that further particularisation provides as follows:
(1) The tribunal failed to accord procedural fairness or breached the rules of natural justice in that while it conceded in its decision that information about a attacks on members of the UNP, submitted by the applicant, compliments information available to the Tribunal (page 15, para 2), then refers to several supporting newspaper articles in this area, it provided the applicant with no chance to comment on its observation that many reports on the human rights situation in Sri Lanka, from such bodies as Amnesty International and Asia Watch, make no reference to such persecution.
It is that matter that I have heard argument about today. As a result of the length of time that the matter has been before the Courts and the obvious and many opportunities the applicant has had to attempt to agitate other issues, I directed the applicant be limited to the issues in accordance with the orders of his Honour Justice Weinberg. Also, having regard to the amount of time that the matter has been before the Courts and the amount of time since the orders of his Honour Justice Weinberg on 15 March 2004, I declined to adjourn the matter to allow the applicant to attempt to obtain evidence that he may be able to obtain to assist him in his case.
The case as articulated in the further particularisation, appears to involve effectively four points as follows:
a)whether or not the applicant was given an opportunity to see or comment upon the Amnesty International material;
b)whether the applicant was provided with an opportunity to see or comment upon the Asia Watch material; and
c)whether the applicant was provided with or given an opportunity to comment upon any of the other materials referred to in that allegation; and
d)whether or not the applicant was given an opportunity to comment upon the RRT’s observations from those materials.
With respect to the first point dealing with the issues related to the Amnesty International material, it appears to me that the applicant's claim is wholly misconceived. It is obvious from the court book that the report from Amnesty International was in fact provided to the RRT by the applicant. This occurred on 25 September 1996 under cover of a letter from his then solicitors Baker and Armstrong wherein his solicitors state:
We wish to draw the attention of the Tribunal also, the following information relating to the state of affairs in Sri Lanka. The Annual Amnesty International Report published in 1996, a copy of which we enclose, concentrates to some extent on the relations between the L.T.T.E and the Sri Lankan Government. It does however advert to general problems with human rights under the present Sri Lankan Government.
The letter goes on to discuss the report and encloses further materials including a letter from "The Sunday Times" of 7 April 1996 as published in Sri Lanka (which also deals with these issues). Other newspaper reports were enclosed as is set out in what was a lengthy letter of over a little over three pages. Similar letters were written to the respondent, again enclosing the Amnesty Report, on 21 October 1996 and 14 April 1996.
How it can be said that the applicant was denied procedural fairness on the basis that he was not provided with the Amnesty International material to comment upon when in fact he provided it to the RRT is not a matter that I can understand. To the extent that this is the basis of the application, it ought to be refused.
The second matter relates to the material from Asia Watch. There is no evidence before me as to what that material contained. There is no evidence before me as to whether that material was provided by the applicant, the respondent, or a third party. There is no evidence before me as to whether or not that material in substance or specifically was discussed with the applicant during the course of his hearing with the RRT member. It would be usual in a case where such a claim is made for the applicant to produce or request a transcript of the hearing in order to provide some evidence on this issue. Alternatively, it would have been open to the applicant to swear some affidavit evidence on this issue and read that in this court. That has not occurred in this case.
In the absence of any evidence on this issue, I am not able to be satisfied as to whether or not the applicant was directed to the Asia Watch material either in substance or directly. It is not appropriate for me to then assume that this means the RRT had breached the rules of procedural fairness, but rather the other assumption, namely, that they have complied as they have referred to it in their decision. That they should be presumed to have acted in accordance with the Migration Act 1958, unless the contrary is demonstrated, is the most appropriate course. I therefore refuse the application to the extent that it relies upon this point.
The third point relates to the other material or reports. In this case no party has sought to identify any other material or reports to be relied upon as not having been shown to the applicant. It is clear that there were materials and reports contained in the country information that the RRT had regard to and which is what the RRT member is no doubt referring to in their decision. In the absence of the applicant identifying materials that he says he was not given an opportunity to see or comment upon during the hearing process, it is impossible to make a finding that procedural fairness has not been accorded to him in the context of this case. I therefore refuse the application to the extent that it relates to this ground.
The final ground is a more general ground and to the effect that the RRT ought to have provided the applicant with an opportunity to comment upon the observation or facts found by the RRT by reference to the various reports. To understand this part of the application it is appropriate that I set out the relevant paragraph from the RRT's decision. It reads as follows:
These reports refer to very few isolated and sporadic incidents which are not organized or orchestrated and cannot be seen as "part of a course of systematic conduct" directed at UNP members or supporters. In the many reports on the human rights situation in Sri Lanka by Amnesty International and Asia Watch and many other organizations, which are available to the Tribunal, there is not, to this Tribunal's knowledge, a single passage in which it is alleged that UNP members or supporters face persecution, human rights abuse, victimization or even harassment by reason of their political opinion.
The applicant puts a case that he ought to effectively have been taxed with this proposition prior to the decision to allow him to properly comment upon or answer it. The argument flows from the High Court decision in Muin. In that case the materials relied upon by the RRT that went to a significant issue were not put to the applicant and he was denied an opportunity to comment upon the material. Most importantly, Muin's case must be read bearing in mind that it was a case stated and that (as set out at paragraph 27 of the judgment of Gleeson CJ) the High Court was bound by the facts in the case stated which included the following:
Had the Plaintiff then possessed the knowledge that the section 423 submissions would be before the Tribunal and would be taken into account by it (if that be the case) then in addition to the things stated in paragraph 43 above he would have:
(a) Made submissions and/or sought to call or adduce evidence or further evidence to the Tribunal specifically going to the section 423 submissions in seeking to highlight those parts of the submissions (including its attachments) which assisted his case in challenging or going against those parts which were clearly adverse to his case; and,
(b) Relied upon those parts of the Tribunal cases referred to in paragraph 43(d) above which argue against the legal correctness, validity or substance of the section 423 submissions.
Such a proposition does not bind me in this case as it is a hearing on a final basis on the materials put forward by the parties.
What must be determined is whether or not the applicant had a reasonable opportunity to address the substance of this issue, and if not, whether relevant unfairness occurred. In this regard reference should be had to the comments of Gleeson CJ in the High Court in Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 at paragraphs 36 to 38 which provide as follows:
[36] The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.
[37] A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (HK) v Ng Yuen Shiu16 was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs.17 A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
[38] No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant’s children.
Further, similar statements were made by Callinan J at paragraph 49 in the following terms:
[49] Section 499 of the Act empowers the minister to give routine directions to a person or body having functions or powers under the Act with respect to the performance of those functions or the exercise of those powers. Direction No 17(2), issued by the minister on 16 June 1999 and with effect from that date, is concerned with the making of decisions to refuse or cancel a visa under s 501. It contains detailed provisions with respect to the application of the “character test”. However, whilst the direction binds the exercise of authority by delegates of the minister (s 499(2A)), it does not bind the minister in the personal exercise of his powers of cancellation conferred by s 501(2). The decision in the present case was made by the minister personally.
It is not suggested before me that the RRT’s reading of the Amnesty International report was unfair, nor that they erred in the summary that they gave of the relevance of that report from their perspective. It is clear that the applicant was well aware that the persecution of him by reason of his political opinion was the central issue in the case and it seems clear that his lawyers were acutely aware of the difficulties when one has regard to the terms of the letters that they forwarded to the RRT addressing the Amnesty report and providing to the RRT a number of newspaper reports in support of the case. The RRT clearly had regard to those newspaper reports as can be seen from the comments made by the RRT member at pages 15 to 16 of the decision where the member stated:
Some incidents in Negombo (Colombo outskirts) reported in The Island of 22 September 1996 arose from fighting between PA and UNP supporters after the disruption of a UNP “golden jubilee” celebration. Other articles refer to the same or similar incidents (see, for instance, “Anamaduwa doctrine: Reign of terror, says UNP”, The Sunday Times (Colombo), 7 April 1996; “Arson, assassinations worry UNP”, The Island 7 April 1996; “UNP member assaulted” and “UNP wants international probe into Anamaduwu fracas”, Sunday Observer, 7 April 1996; “Four Killed, seven injured in Negombo shooting”, Lanka Link,

5 October 1996; “Top level inquiry into Negombo violence”, Sunday Observer, 22 September 1996; “One dead in PA-UNP clash at Katunayake”, The Island, 1 September 1996; “Human Rights Alert from UNP”, The Sunday Times (Colombo),

29 September 1996; “Dead are buried but threats continue”, The Sunday Times (Colombo), 29 September 1996; Check political thuggery to ease Negombo’s tension”, The Sunday Times (Colombo), 8 September 1996;”Violence against UNP continues”, The Island, 20 October 1996; “Killing fields of Negombo”, The Sunday Times (Colombo), 22 September 1996; “End violence”, The Sunday Times (Colombo), updated; “CRM condemns political violence”, Sunday Observer, October 1996.
This is a case that seems more akin to the situation in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 and where the comments of the court in that case are apt. In that case the court stated:
[37] The effect of the submissions made by counsel for the appellant was, therefore, that the appellant was deprived of the opportunity to try to obtain that information. However, as Kirby J said at [54], what was required was an indication of the nature of the opportunity and the presentation of evidence or material which would disclose an arguable case that the result in the RRT would have been different. No such evidence or material was put before us. Accordingly, the omission to supply the four items of country information to the appellant has not been shown to have had any material effect on the outcome of the application before the RRT.
[38] It follows that we are not persuaded that the appellant has established a denial of procedural fairness. It also follows that there was no jurisdictional error within the principles stated in Craig v South Australia (1995) 184 CLR 163 at 179; 131 ALR 595 at 602; 39 ALD 193 at 199.
It appears to me that the applicant had a reasonable opportunity to comment upon what was a central issue before the RRT and indeed significant work on that issue was done by his legal advisers in forwarding material to the RRT. Ultimately, however, the RRT found as a matter of fact (a matter that is not reviewable before me) against the applicant on this point.
If I be wrong in this regard, it is appropriate for me to consider whether or not any different decision would perhaps flow had the applicant had a further opportunity to present more material directly on this issue. This is a matter that has arisen in a number of other cases. Useful comments in this regard are set out by Marshall J in M115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1448 where his Honour said as follows:
[18] There is no indication in the reasons of the RRT 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 his case if he had received prior notice of the country information referred to by the RRT.
[19] As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs: Ex parte Lam [2003] HCA 6 (2003) 195 ALR 502 at [37]:
"Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."
[20] In Lam, the Chief Justice said at [38]:
"No practical injustice has been shown. The applicant lost no opportunity to advance his case. ...It has not been shown that there was procedural unfairness."
See also per McHugh and Gummow JJ at [105] and [106], Hayne J at [115] and Callinan J at [149].
[21] Similarly in this case the applicant has not shown what he would have said if the RRT had given him the country information to comment upon, assuming (without knowing) that it did fail to do so. The applicant said, in his oral submission today, that he is currently unable to get information from Sri Lanka. That is not the point. The issue is what he would have said to the RRT prior to its decision being given in 1997 or what he would have done if he had been shown the relevant country information before the RRT's decision.

In this case there is no evidence before me that anything would be different if the matter went back before the RRT on another occasion if I allowed this application, save that a different RRT member would have to consider the matter. The applicant has no evidence of any specific submissions that would be different, nor has he put forward any evidence of any different evidence he could put before the RRT or further evidence he could put before the RRT on this point. For these reasons the application would fail in any event. In the circumstances, I therefore refuse the application and discharge the order nisi.
In this case the respondent seeks an order for costs fixed in the sum of $10,500.00. The respondent outlined in summary form in his Counsel's submissions the large number of steps and appearances that have occurred in this case as compared to the average migration case. The case commenced in the High Court. It was remitted to the Federal Court. There were appearances in the Federal Court and orders and argument and then the matter was again remitted, this time to the Federal Magistrates Court, before it then commenced upon what would be considered the usual track for this type of matter; that is, directions by a Registrar and then setting down a hearing in this Court.
The applicant argues that he ought not to be ordered to pay costs for all of the proceedings as the applicant was partially successful on earlier occasions with respect to procedural or general matters of law, although he has ultimately lost the application on a final basis. It is not uncommon for a party to be successful on some points of law or to obtain interlocutory relief or an order nisi on the basis of a prima facie case and then not succeed on a final hearing. It does not appear to me to be any real answer to the respondent's application for costs that the applicant may have been successful in showing a prima facie case to obtain an order nisi, if the reality is that the applicant ultimately did not have a case (which is the effect of what I have found) as it means that the applicant ought not to have even sought the prima facie order.
In the circumstances I am not persuaded that it is appropriate to apportion the costs in the way put forward by the applicant. It is appropriate for me to consider whether or not to fix the quantum of costs or allow the costs to be assessed by a Registrar or through a process of taxation. In the Federal Magistrates Court it is generally accepted as an appropriate proposition that to minimise the costs and difficulties of the parties it is appropriate for the Court to attempt to set a figure for costs that is reasonable, otherwise parties have a lengthy process to go through with a costs assessment and taxation.
Having regard to the scales of costs provided for in the High Court, the Federal Court and the Federal Magistrates Court and the nature of the matter as conducted and as appears from the material on the court file I am satisfied that the amount sought by the respondent is not excessive and indeed is likely to be less than what would ultimately be the amount of costs if the matter were sent for formal assessment in accordance with the various court rules. In the circumstances I propose to order that the applicant pay the respondent's costs fixed at $10,500.00.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: