NANF v Minister for Immigration - [2003] FMCA 523

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NANF v MINISTER FOR IMMIGRATION

[2003] FMCA 523

MIGRATION – review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – family association with an LTTE suspect – applicant Sinhalese – RRT relying upon country information that Sinhalese rarely suspected of supporting the LTTE – information raised orally with the applicant at the RRT hearing – whether that procedure was fair – whether s.424A(1) of the Migration Act 1958 (Cth) was breached – no reviewable error found.

Migration Act 1958 (Cth), ss.420, 424A

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2003] HCA 30
P & R [2002] FMCAfam 65
Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24

Applicant:

NANF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1156 of 2003

Delivered on:

19 November 2003

Delivered at:

Sydney

Hearing date:

19 November 2003

Judgment of:

Driver FM

REPRESENTATION

Mr D Kumaragamage assisted the applicant.

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1156 of 2003

NANF

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 18 February 2003 and handed down on 11 March 2003. The RRT affirmed a decision of a delegate of the respondent Minister not to grant to the applicant a protection visa. The applicant made a claim for a protection visa on the basis of a fear of persecution in Sri Lanka arising out of a family association with a person who is said to be a known Tamil Tiger suspect. The application filed in the Federal Court on 4 April 2003 was superseded by an amended application filed in this Court on 5 November 2003 following the transfer of the proceedings to this Court.
In addition, I gave leave for the amended application to be further amended orally to add claims for certiorari and mandamus. I also gave leave for the applicant to be represented at the trial of the matter today by Mr Kumaragamage. Mr Kumaragamage has legal training but is not yet an admitted legal practitioner. I took the view that it would assist in the orderly administration of justice to give Mr Kumaragamage leave to appear because his legal training would assist in clarifying the issues that needed to be resolved in the proceedings and would also save time, in that it would obviate the need for the entire proceedings to be translated into the Sinhalese language for the benefit of the applicant.
I would not want my decision to grant leave in this matter to be taken as an indicator that such leave might frequently be granted in other like matters. As a general principle, applicants in proceedings before this Court are entitled to be represented by an admitted legal practitioner or to represent themselves. There are good legal policy reasons why the Court should be very cautious before granting leave to unqualified persons to appear on behalf of litigants. I set out those principles in those decision in P & R [2002] FMCAfam 6e. I do not need to repeat them here.
As matters turned out the application, as amended, although it raised a number of issues, was distilled down by Mr Kumaragamage to one proposition. That proposition is that the RRT fell into jurisdictional error by failing to disclose to the applicant information relied upon by the RRT, which was adverse to the applicant's claims and which should therefore have been disclosed. The obligation as identified by Mr Kumaragamage arises either by operation of the general law pursuant to the fair hearing rule or from s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). Mr Kumaragamage also sought to draw support from s.420, in particular sub-section 420(2)(b) of the Migration Act, but I ruled that that provision did not assist the applicant.
I made a series of decisions to the contrary prior to the decision of the High Court in Plaintiff S157 of 2002v Commonwealth (2003) 195 ALR 24, but it is clear from that decision of the High Court and subsequent decisions of the Federal Court that there is no need for an applicant to seek to rely on s.420(2)(b) in order to agitate a claim of procedural unfairness; and, also, that s.420(2)(b) adds nothing to the obligations which arise from the general law and from other provisions in the Migration Act bearing on the question of procedural fairness.
Mr Kumaragamage submits that the RRT erred in not disclosing to the applicant what he describes as extrinsic information, but which is more commonly referred to as independent country information, which was adverse to the applicant's claims and which was taken into account by the presiding member. I permitted Mr Kumaragamage to lead evidence from the applicant about what occurred during the course of the proceedings in the RRT. The applicant gave evidence, which I accept, that the relevant country information was not disclosed to him prior to the hearing before the RRT which he attended.
The applicant also gave evidence, which I accept, that although the presiding member raised with the applicant certain country information and invited him to comment on the issue raised by the presiding member, the actual documents ultimately relied upon by the presiding member were not disclosed to the applicant at the hearing. The relevant documents are listed at page 120 of the court book and are set out in the court book in the pages following. However, as appears from page 111 of the court book, the presiding member made limited use of those documents. In her reasons for decision (court book, page 111) the presiding member said this:
The Tribunal noted that it had difficulty accepting his [the applicant's] claims as it found some inconsistent with independent country information mentioned in the Department's decision and with other independent country information, and because some of his evidence had changed at the Departmental interview, for example about the movement of his goods and the banned goods. The Tribunal had difficulty accepting as plausible his very serious claims of repeated arrest, very lengthy detentions and repeated torture over many weeks as such claims from a Sinhalese were not supported by independent country information; specifically, that it is extremely rare for a Sinhalese to be seriously suspected of supporting the LTTE, that Sinhalese commonly have family, personal, professional and business relationships with Tamils and if it later turns out that the Tamil was suspected of supporting the LTTE, independent country information did not suggest that the Sinhalese would be detained for lengthy periods and seriously mistreated and tortured as a suspected supporter of the LTTE. The reports for years in the context of the conflict with the LTTE, about extrajudicial killings and disappearances, repeated arrests, long detentions and torture or serious mistreatment relate overwhelmingly to Tamils. In response the Applicant referred to a Sinhalese navy officer serving a sentence for sending a ship loaded with weapons to the north, that the authorities now think that bombs and weapons travelled by lorry from Matara to an air force ceremony in Galle, and that religious leaders say the conflict won't end as long as Sinhalese help the LTTE. The Tribunal reiterated that unwitting assistance provided as a result of relationships undoubtedly occurs but independent country information does not suggest as a result, the Sinhalese were seriously suspected of being LTTE supporters and kept in detention for long periods and tortured as LTTE suspects. In response the Applicant suggested that the incident with his lorry was “a small thing” but the security forces beat and torture first and then question the person and that the security forces were pressured by their superiors to get rid of helpers like the Applicant in order to annihilate the LTTE.
I asked the applicant whether that description of the discussion between him and the presiding member was accurate. Subject to a qualification about his use of the words “a small thing”. The applicant accepted the description by the presiding member was accurate. It follows that the presiding member did raise with the applicant at the hearing issues of concern to the presiding member drawn from the relevant country information, even though the presiding member did not provide to the applicant copies of the documents referred to by the presiding member.
It is also clear from the court book what the presiding member regarded as significant from the country information (page 116). The presiding member stated:
The Tribunal does not accept that the Applicant was seriously suspected of helping the LTTE for the reasons claimed or that he was arrested twice and detained and tortured for months and consequently that his fear of persecution on return was well-founded. This is because there are serious inconsistencies in key elements of his evidence, and the Tribunal does not find his key claims plausible or consistent with independent country information.
It is apparent that the presiding member was concerned both with the credibility of the applicant's claims in themselves and with the credibility of those claims assessed against the country information. Further, on page 117 of the court book, the presiding member stated:
In addition the Applicant's claims of being seriously suspected of assisting the LTTE and being detained for long periods and seriously mistreated and tortured as a result are not supported by independent country information, set out above [court book, page 111] and accepted by the Tribunal, specifically that it is extremely rare for a Sinhalese to be seriously suspected of supporting the LTTE and being tortured for information about a Tamil suspected supporter of the LTTE and about the LTTE. In addition, as the Tribunal put to the Applicant independent country information about the arrest, detention and torture or mistreatment of persons in the LTTE context is overwhelmingly related to Tamils. The Tribunal has considered the adviser’s submission in this respect but some of the Applicant's own evidence, for example K’s statement that as a Sinhalese his wife was not much troubled by the authorities, supports the independent country information. The headlines quoted by the adviser suggest that Sinhalese support for the LTTE, in the rare instances that it occurs, is newsworthy (for example the wife of an LTTE police chief in 1994 was Sinhalese), yet despite the Applicant claiming that his situation was publicised by the security forces, nothing was submitted to support such a claim. Furthermore, even though Sinhalese may rent rooms, be friends with and in various ways inadvertently help the LTTE, independent country information does not suggest that as a result they are seriously mistreated as LTTE supporters.
The reference to submissions made by the adviser in that passage is a reference to a submission made following the hearing set out in the court book from page 91. The relevant part of the submission is set out on page 93 of the court book.
It is apparent that the presiding member made limited use of the country information in question. The presiding member put to the applicant a relatively simple proposition that because the LTTE is a Tamil liberation organisation, and because the country information discloses that supporters of the LTTE are overwhelmingly Tamils, it seemed unlikely that the applicant should have a well founded fear of persecution by the authorities simply because he has a relative by marriage who was allegedly a LTTE suspect.
The applicant was given an opportunity to comment on that proposition at the hearing and his agent was given a further opportunity to put in a written submission after the hearing. In my view, the presiding member disclosed at the hearing to the applicant the substance of the material which was taken into account by the presiding member and which was adverse to the applicant's claims. Given that the presiding member disclosed the substance of that material, there was no breach of the fair hearing rule arising from the general law and referred to in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 at [29] per Gleeson CJ and other cases.
Neither was there, in this case, a breach of s.424A of the Migration Act. That section imposes an obligation on the RRT to disclose certain material. Subsection 424A(3) provides relevantly that the section does not apply to information that is not specifically about the applicant or another person and is just about a class of persons which the applicant or the other person is a member.
The documents before the presiding member appear to have been created in part in relation to specific claims made by applicants other than this applicant. They were created some time before this application was dealt with. Much of what is in the documents is irrelevant to this applicant's claims. The relevant information drawn from the documents by the presiding member was the general proposition that it was unlikely that a Sinhalese would come under attention by the Sri Lankan authorities as an LTTE suspect. That was not information specifically about this applicant. It was in the terms of s.424A(3), information that is not specifically about the applicant or another person or is just about a class of persons which the applicant or other person is a member. Accordingly, s.424A(3)(a) applies and no obligation arises from s.424A(1) of the Migration Act to disclose particulars of the information to the applicant relating to this issue. In addition, it is arguable that sufficient particulars were disclosed orally by the presiding member to meet the requirements of s.424A(1).

I make no finding on that proposition as it is not necessary to do so.
Mr Kumaragamage did not pursue any other claim which might have been derived from the amended application. That was, in my view, an appropriate judgement by him, on the basis that the other elements of the amended application do not go beyond a dispute about the merits of the RRT decision.
There is no jurisdictional error in this decision of the RRT. Accordingly, the decision of the RRT is a privative clause decision.

I must dismiss the application.
On the question of costs, the application having been dismissed, Mr Smith has sought an order for costs and tells me that an estimate of costs actually incurred on behalf of the Minister is $4,500. Mr Kumaragamage submits that some consideration should be given to the applicant, given his status as an asylum seeker. However, in that there is nothing to distinguish this applicant from any other applicant seeking review of a decision of the RRT. In addition, to the extent that the applicant may have difficulty in meeting a costs order, impecuniosity is not a reason to refrain from making a costs order.
In this matter, on a party/party basis, the sum of $3,000 would, in my view, be a reasonable recompense for the Minister. I will, therefore, order that the application be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 25 November 2003