NAZH v Minister for Immigration - [2005] FMCA 900

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAZH v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 900

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant an infant claiming persecution in Sri Lanka through his parents – sur place claim – publication of the name of the applicant’s father on the internet in a judgment of the Federal Court – RRT finding that the applicant faced no greater risk than his parents – no jurisdictional error.

Migration Act 1958, s.91X

H v Minister for Immigration [2000] FCA 180
H v Minister for Immigration [2000] FCA 1348
NAAT of 2002 v Minister for Immigration [2002] FCA 1567
NABE v Minister for Immigration (No 2) [2004] FCAFC 263
Re Refugee Review Tribunal; ex parte H [2001] HCA 28; 179 ALR 425
SZDJQ v Minister for Immigration [2005] FMCA 415

Applicant:

NAZH

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG881 of 2004

Judgment of:

Driver FM

Hearing date:

10 June 2005

Delivered at:

Sydney

Delivered on:

15 July 2005

REPRESENTATION

Counsel for the Applicant:

Mr Godwin

Solicitors for the Applicant:

Brett Slater Solicitors

Counsel for the Respondent:

Mr R Bromwich

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG881 of 2004

NAZH

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) completed on 5 November 2003 and handed down on 2 December 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The background facts and circumstances relating to this matter are somewhat complex. The applicant was born in Australia on 10 November 2002 to Sri Lankan parents who arrived in Australia on 8 October 1997. The applicant’s parents lodged an application for a protection visa on 29 October 1997. On 9 December 1997 a delegate of the Minister refused that application. They applied to the RRT to review that decision and hearings were conducted on 21 September and 19 October 1999. The delegate’s decision was affirmed on 16 November 1999. The applicant’s parents applied to the Federal Court to review that decision. Their application was dismissed by Hely J on 28 February 2000. The Full Federal Court dismissed an appeal from His Honour’s decision on 22 September 2000. However, the applicant’s parents successfully appealed to the High Court on the basis of apprehended bias on the part of the RRT, and on 24 May 2001 the High Court issued constitutional writs to the RRT. The applicant’s parents’ application was reheard by the RRT, differently constituted, which again dismissed their application on 26 November 2001.
During the course of the second RRT proceedings the applicant was born but he could not be included in his parents’ protection visa application. A fresh protection visa application in the applicant’s own name was made on 6 January 2003.
The applicant’s parents had claimed protection visas on the basis of their race and/or political opinion. The applicant’s father is Sinhalese and his mother is of mixed Tamil and Sinhalese parentage. The applicant’s parents claimed that, because of the mother’s Tamil ethnicity they were perceived to be supporters of the Liberation Tigers of Tamil Elam (“the LTTE”). The applicant’s parents claimed that the father was suspected of having committed a serious offence while working for Air Lanka and that he was detained in connection with that suspected offence. He was allegedly mistreated by the Sri Lankan police. The applicant’s parents also claimed that the applicant’s father was suspected of being involved in the poisoning of a drinking water tank at his place of employment. He was allegedly detained and questioned in relation to that matter and again mistreated. The applicant’s parents claimed that their neighbours suspected them of LTTE involvement and that, if they returned to Sri Lanka, they would suffer at the hands of the Sri Lankan authorities, from persons in the community who suspected them of LTTE involvement and from the LTTE itself, which would force them to render assistance.
The applicant’s parents also claimed to fear political persecution on the grounds that the applicant’s parents had, in fact, assisted the LTTE. They claimed that their house had been broken into and contents destroyed by the police and a witness for the parents[1] gave evidence that there was a rumour that the applicant’s parents had left Sri Lanka because they had helped the LTTE.
[1] A Mr K
The applicant’s parents sought judicial review of the Second Tribunal decision twice in this Court. The first application was dismissed and an appeal to the Federal Court (and an attempted appeal to the High Court) failed. The second application was discontinued.
There are therefore three RRT decisions of potential relevance in this case:
a)the first RRT decision of 2 August 2000 concerning the applicant’s parents which was set aside by the High Court (the First Tribunal);
b)a second RRT decision, also concerning the applicant’s parents, review of which failed in the Federal Magistrates Court, with an appeal from that decision dismissed by the Federal Court and special leave being refused by the High Court, with a further judicial review proceeding in this Court being withdrawn on 20 September 2004 (the Second Tribunal);
c)a third RRT decision, directly the subject of these proceedings, relating to this applicant (the Third Tribunal).
On 8 July 2003, when the applicant was eight months old, the delegate refused the grant of a protection visa (court book, page 100). On 2 December 2004, when the applicant was just over 12 months old, the Third Tribunal handed down a decision made on 5 November 2003 affirming the delegate’s decision (court book, page 185). In reaching that decision the Third Tribunal:
a)described the statement and submissions before the Third Tribunal by the applicant’s parents as relying on the claims made by them in their own unsuccessful protection visa and review applications, asserting that the applicant was at risk of persecution by reason of:
i)their own experiences prior to leaving Sri Lanka in 1997; and
ii)the publications of the decision of the RRT, Federal Court and High Court in relation to their protection visa and review applications (court book, page 187 [7]);
b)noted that at the Third Tribunal hearing on 14 October 2003:
i)the member raised with the applicant’s father the need for the applicant to have a well-founded fear of persecution, to which the applicant’s father responded that because of the original decision of the First Tribunal had been published on the internet and had identified him, and because his name was unusual in Sri Lanka, Sinhalese people in Sri Lanka would conclude that both he and the applicant were traitors;
ii)the Third Tribunal referred to country information that indicated that unsuccessful refugee applicants who return to Sri Lanka were not for that reason, subjected to adverse attention or persecution; and
iii)the applicant’s father responded by saying that his reputation would be damaged and he would be unable to obtain employment and consequently unable to support the applicant (court book, page 188 [10]);
c)noted that the applicant advanced no claims of his own to refugee status, and relied entirely on the claims of his parents (court book, page 190 [20]);
d)noted that it had considered all the material advanced by the parents in support of their previous claims to refugee status, much of which was also advanced in support of the applicant’s claims and that no information additional to that previously provided had been furnished, and was not satisfied, for the same reasons as the Second Tribunal, that the applicant’s parents had a well-founded fear of persecution in Sri Lanka for a Convention reason (court book, page 190 [21]);
e)was satisfied that the fact of having unsuccessfully sought refugee status in Australia will not result in the applicant or his parents being targeted for that reason alone if it were to become known to Sri Lankan authorities (court book, page 191 [22]).
The present proceedings began with the judicial review application filed on 30 December 2003 in the Federal Court. The applicant obtained legal representation shortly afterwards. On 10 March 2004 Beaumont J transferred the matter to this Court. The applicant’s solicitors withdrew on 17 August 2004 but fresh solicitors appeared on 28 October 2004. The applicant’s father was appointed as his tutor (litigation guardian). An amended application was filed on 29 November 2004. A further amended application was prepared for the purposes of the hearing before me on 10 June 2005. I accepted that document as a working copy on the basis of an undertaking by Mr Godwin to file a further amended application in the court registry. This was done on 17 June 2005. The further amended application properly joins the RRT as the second respondent.
The further amended application asserts that the RRT committed jurisdictional error in failing to consider the effect that the publication on the internet and generally of the details of the applicant’s parents claims and names by the Federal Court of Australia following the decision of His Honour Hely J on 28 February 2000 in matter number N1407 of 1999 may have in giving the applicant’s parents a profile as Tamil sympathisers in the Sinhalese community in Colombo. It is not suggested that there was anything unusual in the publication of those details by the Federal Court. The assertion simply reflects the fact that that publication occurred prior to the enactment of s.91X of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant asserts that he has an uncommon surname and that, as a result of the publication of his father’s surname and claimed details in the decision of Hely J, he will be at risk. The decision of Hely J bears a medium neutral citation of [2000] FCA 180. For the purposes of these proceedings I will call that decision H v Minister for Immigration. The Full Federal Court which dealt with the appeal of that decision issued a suppression order. The decision of the Full Federal Court is H v Minister for Immigration [2000] FCA 1348. The decision of the High Court, which granted prerogative relief in relation to the First Tribunal decision, is known as Re Refugee Review Tribunal; ex parte H [2001] HCA 28; 179 ALR 425.
The decision of the Federal Court dismissing the appeal from this Court in relation to the Second Tribunal decision is NAAT of 2002 v Minister for Immigration [2002] FCA 1567.
It is beyond argument that there is no jurisdictional error in the Second Tribunal decision. The High Court dismissed the applicant’s parents’ special leave application against the decision of the Federal Court in relation to that decision in NAAT of 2002 and NABB of 2002 v Minister for Immigration. In refusing special leave Kirby J said the following:
The applicants, nationals of Sri Lanka, seek special leave to appeal to this Court from orders of the Full Court of the Federal Court of Australia. That court was constituted in this case by Justice Allsop. His Honour rejected an appeal against the primary decision of the Federal Magistrates Court refusing judicial review of the decision of the Refugee Review Tribunal. That Tribunal, in turn, had declined to disturb a decision of a delegate of the Minister refusing the applicants a protection visa sought on the basis that they were refugees.
Before the Tribunal and the Federal Court the applicants presented their case on the footing that they were entitled to refugee status by reason of events which they alleged had occurred in Sri Lanka by reason of the ethnic derivation of the female applicant. Her mother is of Tamil ethnicity. The Refugee Review Tribunal accepted that the male applicant had been harassed and had lost his job at the Colombo International Airport. However, it did not accept that there was a real chance that the applicants would encounter the same difficulties if they returned to Sri Lanka.
The Full Court of the Federal Court, Justice Allsop, concluded that, in effect, the applicants were attempting to turn a complaint about fact finding in the Tribunal into a legal construct. Such a case was a most unpromising vehicle for an application for special leave from [that] Court. Recognising this, counsel for the applicant appearing before this Court presented a new issue. That issue concerned whether the publication of the names of the applicants in the previous proceedings in the Tribunal and Federal Court would now present added difficulties for the applicants which would constitute persecution. It was suggested this was a matter that ought to have been considered by the Federal Court. Its failure to consider that issue was said to be an error of jurisdiction, or a constructive failure to exercise jurisdiction.
It was accepted that the new point was never raised in the Tribunal or in the Federal Court. It is true, as the applicants said, that this Court can provide leave to add new grounds. A consideration relevant to that application is the seriousness of the consequence of refugee decisions for those who make them. They make such applications under the Migration Act 1958 incorporating the Refugees Convention.
On the other hand, to allow the point now to be raised in the Court would have two significant disadvantages. First, it would mean that the factual substratum for any particular perils or dangers said to be suffered by the applicants by reason of the publication of names on the Internet, was not laid. This Court would have to struggle with the issue without the presentation of a proper factual foundation for consideration of the issue. One can imagine countries where evidence could be given of particular dangers by reason of publication in the Internet. Indeed, I have a recollection of such a case coming before me some years ago. The evidence would not be available in this case.
Furthermore, by reason of the fact that the issue was not raised in the Federal Court, this Court does not have the benefit of the consideration of the issue by the Federal Court, either as a matter of general principle or as addressed to the particular circumstances of this case.
Accordingly, we are not convinced that the added ground adds weight in circumstances to the application that is before us. That application as originally presented did not attract a grant of special leave. It follows that the application must be refused. The applicants must pay the Minister’s costs.
The sur place claim now being agitated by the applicant in these proceedings was only dealt with by the Third Tribunal and this is the first occasion upon which that decision has been judicially reviewed.

The decision of the RRT

The presiding member in the Third Tribunal proceedings disposed of the applicant’s claims in the following manner. She said:
This matter is simply resolved. The applicant advances no claims to refugee status on the basis of his own circumstances or experiences, other than that he is an unsuccessful applicant for refugee status in Australia. His claims rest entirely on the claims of his parents, both of whom who have been determined by this Tribunal, differently constituted, not to have a well-founded fear of persecution for a Convention reason.
I have considered all the material advanced by the applicants’ parents in support of their previous claims to refugee status, much of which was also advanced in support of their son’s, the applicant’s application. The applicant’s parents have not provided any information on their own circumstances additional to that previously provided. I have read the decision of the Tribunal, differently constituted, in relation to those claims and the applicant’s parents have not advanced any claims or evidence which would persuade me to take a different view of their entitlement to refugee status. Like my Tribunal colleague, I am not satisfied, for the same reasons, that the applicant’s parents have a well-founded fear of persecution in Sri Lanka for a Convention reason.
I am satisfied on the basis of the independent information set out above that the fact of having unsuccessfully sought refugee status in Australia will not result in the applicant, or his parents, being targeted for harm for that reason alone if it were become known to the Sri Lankan authorities.
In referring to the “independent information” set out earlier in the reasons for decision, the presiding member was referring to country information that failed asylum seekers returning to Sri Lanka are at no risk of ill treatment by government authorities on their return to Sri Lanka. This issue was raised with the applicant’s father at the hearing conducted by the RRT. At paragraph 10 of her decision[2] the presiding member said:
When I clarified to the applicant’s father that his son had to establish to my satisfaction that he was at risk of persecution in Sri Lanka, the father stated that because the original decision of the Tribunal in relation to his and his wife’s application had been published on the internet and had identified him, and because his name is an unusual one in Sri Lanka, Sinhalese people in Sri Lanka would conclude that both he and the applicant were traitors. I put to the applicant’s father the independent information available to me that unsuccessful refugee applicants who returned to Sri Lanka were not for that reason subjected to adverse attention or persecution. The applicant’s father responded that his reputation in Sri Lanka would be damaged and that he would be unable to obtain employment or, consequently, to support his son.
[2] court book, page 188

Submissions

Mr Godwin submits that, although the claim concerning the publication of the applicant’s parents’ names and claims was put squarely to the RRT in this case, no finding was made as to what impact this would have in substance and taken together with the other claims accepted by the Second Tribunal which considered the applicant’s parents’ case. Rather, Mr Godwin submits that the RRT only addressed the issue of whether the fact that the parents were failed asylum seekers would, by itself (independent of the substance of what they had claimed), lead them to face a real chance of persecution for a Convention reason.
Mr Godwin submits that it is this failure to consider the impact of the disclosure of the parents’ names and claims on the substance of their claims (and thereby on the vicarious case for the applicant) which is the failure by the RRT to exercise jurisdiction. He submits that the case which the RRT was required to address, and failed to address, was whether there was a real chance that the applicant would suffer persecution because of what had happened to his parents and, in circumstances where there was a chance that the assistance his parents had provided to the LTTE would have been disclosed within the Sri Lankan community by the publication of his parents’ claims on the internet in the earlier Federal Court decision.
Mr Bromwich makes the following submissions in writing relevant to the challenge to the Third Tribunal decision:
Apart from the husband’s name (the wife having a completely different name), the only part of Hely J’s decision of note ([2000] FCA 180) is paragraph 14, …
That is, the publication complained of is confined to a recording of a limited part of the First Tribunal’s reasons for not believing a part of the claims made by the applicant’s father.
Paragraph 18 of the applicant’s submissions suggest that the substance of the claims made by the applicant’s parents were accepted. A better way to express this is that while the account by the parents of the applicant of their experiences in Sri Lanka were mostly accepted, this was to no avail because at every important point they failed to convince the Second Tribunal that they had any proper foundation for a well-founded fear of persecution (see in particular court book, pages 136.5 – 143.8), including in particular a rejection of the claim that the applicant’s parents were ever seriously suspected by the Sri Lankan authorities of helping the LTTE (court book, page 143.5).
Paragraphs 22 and 23 of the applicant’s submissions assert:-
(a)that no finding was made as to what impact the publication of the parents names and claims would have in substance when taken together with the other claims accepted by Second Tribunal who considered the parents’ case; and
(b)that the Third Tribunal confined itself to the issue of whether the fact that the parents were failed asylum seekers would, by itself and independently of the substance of what they had claimed, lead them to face a real chance of persecution for a Convention reason.
The Second Tribunal concluded that the substance of the claims by the applicant’s parents to have a well-founded fear of persecution were without foundation, such that there was nothing relevant to take “together with” the publication claim. Acceptance of the generally unhappy experiences of the applicant’s parents falling short of grounds for a well-founded fear of persecution left the claim concerning the adverse consequences of publication on its own. The RRT, in dealing with the publication claim, did not limit itself to the internet publication of Hely J’s decision, but considered more broadly the position of known failed asylum seekers in Sri Lanka, and concluded that this did not give rise to any well-founded fear of persecution.

Both Mr Godwin and Mr Bromwich also took the opportunity to make oral submissions in the hearing before me. Mr Godwin relies upon the Full Federal Court decision in NABE v Minister for Immigration (No 2) [2004] FCAFC 263 at [63]. The Full Federal Court accepted in that case that a failure by the RRT to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby constitute a jurisdictional error. Mr Godwin also relies upon the decision of this Court in SZDJQ v Minister for Immigration [2005] FMCA 415 at [13], [32], [34]-[35] and [39] to similar effect.
In his oral submissions, Mr Bromwich points out that the Second Tribunal’s reasons have not been published and so the argument put by the applicant’s father to the Third Tribunal was factually incorrect. The only publication was of the reasons for decision of Hely J. He further submits that the RRT dealt with the sur place claim as presented at paragraph [10] of the Third Tribunal decision and made a clear finding on it at paragraph [22] of that decision[3]. He submits that it was not part of the applicant’s parents’ claims before the Third Tribunal that the publication of any information concerning their claims needed to be considered in terms of the cumulative effect of that publication in the light of the matters dealt with by the Second Tribunal. Mr Bromwich further submits that to the extent that that cumulative effect is in issue, it is dealt with at paragraph [21] of the presiding member’s reasons[4].
[3] court book, page 191
[4] court book, page 190
Mr Bromwich submits that the case presented by the applicant in this Court confuses the very limited publication of information in the decision of Hely J with the matters of detail dealt with in the Second Tribunal decision which have not been published. He submits that, in any event, the claim as articulated on behalf of the applicant before the Third Tribunal was dealt with and that no jurisdictional error is present in the decision of the Third Tribunal.

Reasoning

Apart from the name of the applicant’s father, the only factually significant information published in the decision of Hely J was contained in paragraph [14] of His Honour’s decision. His Honour said:
The applicant husband claimed that he was suspected of poisoning the Air Lanka water supply, and of stealing an Air Lanka computer. Yet he was provided with a reference from Air Lanka which stated that he was a person who bore and excellent moral character; he was a disciplined honest and dedicated employee who could be considered a “gain” to any organisation which wished to employ him. Viewed in that context, it is perhaps not surprising that the presiding member expressed disbelief in relation to the male applicant’s claims as to the theft of the Air Lanka computer. Reaction of disbelief to a claim which is made is not sufficient of itself to establish a case of prejudgment when viewed in the context of the decision making process as a whole. That is particularly so when the member indicates that he proposes to suspend final judgment on the issue until after the wife’s evidence has been heard.
It is noteworthy that His Honour there referred to the disbelief of the particular claim by the applicant’s father by the presiding member which would, one would have thought, tend to detract from the argument that the publication of His Honour’s reasons would harm the applicant, through his parents, by relating the circumstances of their being suspected of having committed a serious offence. Nevertheless, the sur place claim made on behalf of the applicant could not have been dismissed as trivial. The publication of the details of applicants for protection visas can have serious consequences, which was the reason for the enactment of s.91X of the Migration Act. The explanatory memorandum to that section states as follows:
This item inserts new section 91X into the Act. This provision is required to minimise the risk that publication of court proceedings might identify individuals as having applied for protection in Australia. Such publication can create a need for protection for the litigants and also place their family and colleagues overseas at risk. The new section does not prevent the Minister or other litigants from seeking court orders for further confidentiality in particular cases, for example to suppress any information which may identify the litigants.
New subsection 91X(2) prohibits the High Court or the Federal Court from publishing (electronically or otherwise) the name of certain persons. Under new subsection 91X(1), this prohibition applies to a proceeding before the High Court or the Federal Court if the proceeding relates to a person in the person's capacity as:
·a person who applied for a protection visa; or
·a person who applied for a protection-related bridging visa; or
·a person whose protection visa has been cancelled; or
·a person whose protection-related bridging visa has been cancelled.
New subsection 91X(3) defines:
·an "application for a protection-related bridging visa" to mean an application for a bridging visa, where the applicant for the bridging visa is also an applicant for a protection visa; and
·"proceeding" to mean a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal; and
·"protection-related bridging visa" to mean a bridging visa granted as a result of an application for a protection-related bridging visa.
I am unable to accept Mr Godwin’s submission that there was a constructive failure by the Third Tribunal to deal with the applicant’s sur place claim. Paragraph [10] of the presiding member’s reasons made clear that it was considered at the hearing conducted by the RRT (albeit on the incorrect factual basis advanced by the applicant’s father). In her findings and reasons, the presiding member needed to deal with the issue of whether the applicant had a well-founded fear of persecution by reason of the claims dealt with by the Second Tribunal. This was because the applicant had no claim of his own apart from the sur place claim. It was open to the presiding member to find that there was no reason for her to depart from the reasoning of the Second Tribunal in relation to the claims dealt with by that Tribunal.
It was also open to the presiding member to find, as she did, that the applicant did not have a well-founded fear of persecution because of his sur place claim. That decision is based upon the country information which appears on page 192 of the court book. That information is not as clear as it might be in that it does not make clear whether failed Tamil asylum seekers returning to Sri Lanka had had their details publicised prior to their return. Nevertheless, while one may question the detail of that country information and the presiding member’s reliance upon it, it is clear that the applicant’s sur place claim was considered and dealt with by the presiding member by reference to that information. The sur place claim was neither ignored nor dismissed simply on the basis of the dismissal of the applicant’s parents’ claims by the Second Tribunal. To the extent that the applicant asserts the contrary, I reject that assertion. It was open to the RRT to conclude that the applicant did not have a well-founded fear of persecution in Sri Lanka either by reference to the applicant’s parents’ claims, which had been rejected by the Second Tribunal, or by reason of the publication of the applicant’s father’s details in the decision of Hely J, or a combination of the two. On a fair reading of the Third Tribunal decision, that is the decision reached.
In the circumstances, I find that there was no jurisdictional error in the decision of the Third Tribunal. Accordingly, I must dismiss the application.
I will hear the parties as to costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 15 July 2005