MZNAH v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1435

FEDERAL COURT OF AUSTRALIA

MZNAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1435

MIGRATION – no issue of principle

MZNAH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 505 OF 2004

NORTH J
8 OCTOBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 505 OF 2004

BETWEEN:	MZNAH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	8 OCTOBER 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellants 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	V 505 OF 2004

BETWEEN:	MZNAH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	8 OCTOBER 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an appeal against a decision of the Federal Magistrates Court.  The Federal Magistrate dismissed an application to review the decision of the Refugee Review Tribunal (the Tribunal) of 14 February 2003 to affirm the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, the respondent, not to grant the appellants protection visas. This appeal is heard by a single judge of this Court, pursuant to a direction given to that effect by the Chief Justice on 24 June 2004. 

2. The appellants are a father, mother and two children.  For ease of reference, the father alone will be referred to in these reasons as the appellant because his claim determines the claims of the whole family.  The appellant is a Sinhalese Christian from Sri Lanka who arrived in Australia on 23 November 1998.  He lodged an application for a protection visa on 4 January 1999.

3. The basis of his claim is set out in the reasons for decision of the Refugee Review Tribunal.  The appellant claimed a fear of persecution on the grounds of his political opinion.  He claimed that he was targeted as a UNP supporter who was involved in forming a UNP special committee to deal with child prostitution, that at the end of 1995 the committee investigated child prostitution activities in Negombo and surrounding suburbs, that a research group was established on 20 October 1995, and that the research concluded in January 1996.  The appellant claimed that, as a result of his involvement, he and members of his family were physically harmed and threatened.

4. The Tribunal conducted a hearing on 28 May 2001 at which the appellant gave evidence.  On 21 February 2002 the appellant was advised that the Tribunal member who had heard his evidence was no longer available and the case had been referred to another member for determination.

5. Mr Gibson, who appeared as counsel for the appellant, argued different grounds of appeal to those particularised in the notice of appeal.  He contended that the appellant was denied natural justice by the failure of the Tribunal to disclose some of the material upon which it relied in reaching its decision. There was a sub-argument, not particularly emphasised, that the denial of natural justice arose from the failure of the Tribunal to give the appellant adequate time to respond to that material.  Mr Gibson also contended that the questioning of the Tribunal was based at times on material not disclosed to the appellant, and this amounted to an unfair procedure.

6. Mr Gibson relied on a question on page 11 of the transcript of proceedings before the Tribunal, where the Tribunal member referred to a 1991 government task force and asked the appellant whether he knew ‘anything about that’. Mr Gibson argued that there was failure by the first Tribunal member to disclose the source of information relating to the Task Force.  Mr Heerey, who appeared as counsel for the respondent, referred to the existence of a reference to the Task Force in material provided to the delegate and to the Tribunal by the appellant in a newspaper article. Mr Gibson, quite properly, therefore withdrew his submission relating to this item of evidence.

7. Mr Gibson also referred to a comment made by the Tribunal in reference to an Associated Press article dated 13 December 1998 entitled ‘Sri Lanka Cracks Down on Paedophiles’. The article reported the establishment of a National Child Protection Authority (the NCPA) under the chairmanship of Herendra De Silva and detailed the powers and membership of the NCPA.  The article was read to the appellant and a copy provided.  The Tribunal asked the appellant about Mr De Silva and his work.  The appellant said, "I can't remember that". The Tribunal then told the appellant that Mr De Silva had conducted a ‘major survey of about 900 teenage boys and acted on that’.  The survey and involvement of 900 teenage boys does not appear to be included in any of the material provided to or by the appellant.

8. The Tribunal also asked the appellant whether he had heard of Professor Weeramunda of the University of Colombo whom, the Tribunal explained:

   ‘is an expert on child sexual abuse and has produced a number of studies, including - there was also one which he produced in 1996 but he also produced studies in 1993 and he is one of the authorities.’

Neither Professor Weeramunda nor his work was identified for the appellant. 

1. Mr Gibson also drew attention to the fact that the Tribunal indicated surprise that the appellant’s name did not appear on a number of databases to which the Tribunal said it had access, relating to activities opposing child prostitution (page 19 of transcript).

The Relevant Reasoning of the Tribunal

1. The Tribunal concluded that the appellant was concerned with social issues relevant to the area in which he lived, especially child prostitution, but that he was not actively involved in any child prostitution campaign and in particular he was not involved in the UNP Special Committee.  The Tribunal reasoned as follows:

   ‘… the applicant’s knowledge in relation to other organisations working on this issue, both at a national level and in the Negombo area, was not consistent with the applicant's profile as one of the organisers of the UNP Special Committee to investigate child prostitution.

   The applicant was unaware of major organisations fighting against child prostitution operating at the time he was in Sri Lanka, initiatives by both UNP and PA governments to combat the child prostitution industry and protect children and the laws in relation to the offence.

   In particular, the applicant's ignorance of the National Child Protection Authority established by the PA government in 1998 while the applicant was still in Sri Lanka leads the tribunal to doubt the veracity of the applicant's claims.

   The tribunal does not accept the applicant's explanation that he was really busy helping Father Pinto at the time; that he was unable to read any articles.  The tribunal finds that the applicant's lack of knowledge is inconsistent with his commitment to working against child prostitution for four years and commissioning investigative research about it.’

Consideration

1. Mr Gibson submitted that the survey conducted by Mr De Silva, the work of Professor Weeramunda and the databases, details of which were not provided to the appellant, were central to the conclusion that the appellant was not actively involved in any anti-child prostitution campaign. 

2. However, in the passage quoted in paragraph 10 of these reasons, the Tribunal relied upon the appellant's lack of knowledge of major organisations fighting against child prostitution operating at the time he was in Sri Lanka.  None of the three matters relied upon by Mr Gibson relate to that conclusion.  Rather, that finding was supported by other evidence.

3. There was evidence that the appellant was unaware of the NCPA, the 1991 Task Force, and an organisation called PEACE, which was fighting against child prostitution.  Evidence of existence of the NCPA was contained in the Associated Press article reference to the 1991 task force (page 114 of the Court Book) and reference to PEACE was made in articles submitted by the appellant to the Tribunal (page 115 of the Court Book).

4. The Tribunal also referred to initiatives by both UNP and PA governments to combat the child prostitution industry.  The references also come from material provided by the appellant in relation to the 1991 Task Force, an initiative of the UNP, and the establishment of the NCPA, an initiative of the PA.  The survey conducted by Mr De Silva, the role of Professor Weeramunda, and the reference to the database consulted by the Tribunal played no part in the finding that the appellant was unaware of the initiatives by the present and past governments.  Neither did that material play any part in the remainder of the consideration by the Tribunal.

5. It follows that the appellant has not made out a case that he was denied natural justice on the basis that he was deprived of material central to the conclusion of the Tribunal. 

6. In any event, after the Tribunal hearing the appellant was given a generous opportunity to bring forward any material to counter the issues upon which the Tribunal ultimately found that the case turned.

7. The Tribunal asked many open-ended questions expressly designed to allow the appellant to explain fully his knowledge about child prostitution in Sri Lanka.  The first Tribunal member, on several occasions, expressly referred to her lack of satisfaction with his knowledge of the subject matter (pages 19, 32). Having expressed her concerns, the Tribunal member invited the appellant to make any further comments within two weeks of the culmination of the hearing.  As Mr Heerey explained, the appellant took advantage of this invitation but did not provide anything related to the issues flagged as being of major significance by the Tribunal member.  On or about 24 June 2001, the appellant filed a statutory declaration from a Mr Fernando.  On 5 September 2001, the appellant’s agent sent further correspondence to the Tribunal.  On 21 February 2002, the appellant was notified that the case had been referred to another member, and that letter stated:

   ‘Should you have new information relating to your application, please forward this to the tribunal as soon as possible.’

That letter also requested comments on information included in the letter which related to the recent election of the UNP government in Sri Lanka.  On 13 March 2002, the agents of the appellant sent a further letter to the Tribunal enclosing a detailed letter from the appellant about the consequences of the election of the UNP government.  Consequently, even if I were to find that the appellant had not been advised of material of the nature indicated, in the circumstances of this case, I would have found that the opportunity given to the appellant following the hearing satisfied the requirements of natural justice.

1. Finally, Mr Gibson put an argument that there was unfairness in the course of questioning which was based on material not disclosed to the appellant.  Ultimately, the material which falls into that category is insignificant.  In relation to the survey, the Tribunal did not base any question on its supposed existence.  It merely made a throwaway comment.  In relation to the databases upon which the name of the appellant was not included, the Tribunal only made a comment.  Professor Weeramunda’s existence was raised.  The appellant said he had not heard of him.  There was no unfairness in the Tribunal member asking that question, even though it may have had information not known to the appellant.

2. It follows from these reasons that the appellant's appeal must be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North .

Associate:

Dated:            5 November 2004

Counsel for the Appellant:	Mr J Gibson
Solicitor for the Appellant	Clothier Anderson and Associates
Counsel for the Respondent:	Mr E Heerey
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	8 October 2004
Date of Judgment:	8 October 2004