S1878 of 2003 v Minister for Immigration
[2006] FMCA 792
•30 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1878 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 792 |
| MIGRATION – Review of RRT decision − where RRT decision previously subject of an application for order nisi dismissed by High Court − whether views of court determining order nisi are determinative − whether application in this case an abuse of process − whether res judicata, issue or Anshun estoppel applies − where Tribunal found conduct adverse to applicant not serious enough to amount to persecution on basis of country information − whether breach of procedural fairness on grounds Tribunal failed to give applicant particulars of adverse information relied on − whether Tribunal had discussed all adverse information with applicant − whether RRT wrongly applied the term ‘systematic’ in assessing applicant’s claims of persecution − whether test of persecution relevant given Tribunal considered applicant unlikely to suffer persecution. |
| Migration Act 1958, s.48B Federal Magistrates Court Rules 2001 |
| Minister for Immigration, Re; Ex parte Durairajasingham (2000) 168 ALR 407 Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289 Periannan Muragusu v Minister for Immigration (1987) 217 ALR 17 Chan v Minister for Immigration (1989) CLR 379 Mohamed v Minister for Immigration (1998) 51 ALD 666 Abdalla v Minister for Immigration [1998] 51 ALD 11 Minister for Immigration v Ibrahim [2000] HCA 55 |
| Applicant: | APPLICANT S1878 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG697 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 29 May 2006 |
| Date of Last Submission: | 29 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner |
| Counsel for the Respondents: | Mr R Beech-Jones |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG697 of 2004
| APPLICANT S1878 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings are brought to seek review of a decision of the Refugee Review Tribunal made on 9 April 1996 which was the subject of an application for an order nisi before the High Court that was remitted for consideration by Davies J in part on 25 November 1996. His Honour gave reasons for judgment on 11 November 1997 and the balance of the order nisi application was heard by McHugh J and reported at (2000) 168 ALR 407. After the dismissal of the order nisi application the applicant joined a class action which was discontinued. He subsequently joined the Muin class action but his application was dismissed by Emmett J as disclosing no reasonable cause of action.
It is to be remembered that in effecting this dismissal, Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289, his Honour said:
“[30] I do not consider that there would be any prejudice to the applicant or to any of the other applicants by the refusal of an order nisi. No such refusal would stand in the way of successful prosecution of any subsequent application for prerogative writ relief if properly commenced and particularised.”
The applicant took that advice to heart and filed an application in this court on 12 March 2004. The matter now comes to be heard in the guise of a further amended application which contains two grounds. These are:
“1 The Tribunal denied the applicant procedural fairness.
Particulars
The Tribunal relied upon information adverse to the applicant and failed to give him particulars of that information and/or an opportunity to comment upon it.
2 The Tribunal applied the wrong test.
Particulars
(a)The Tribunal found that there had to be systematic abuse to amount to persecution.
(b)At the time of the Tribunal’s decision there was no such requirement in the definition of “persecution”.”
The respondent argues that the application before me is an abuse of process. I am not satisfied that it is. It is accepted by the respondent that the principles of res judicata, issue estoppel and Anshun estoppel do not apply in this case as the applicant has had no final determination of his claims. This is an unfortunate situation because there can be no doubt that his claims were dealt with very thoroughly by both Davies J and McHugh J. This has left the loophole identified by Emmett J.
The applicant has merely taken advantage of that loophole. I am satisfied that the case which he now raises has not been raised before and it would be better if someone determines it on a final basis than going through another round of interlocutory procedures and appeals. It seems to me that it is in the interests of justice that I hear the case as put.
The procedural fairness issue
In the course of the Tribunal’s decision it makes frequent references to independent country information. The applicant refers in his written submissions to a number of examples and it is important for the purposes of this decision to deal with each of them. In his oral submissions the applicant referred to some other examples and I will deal with those as well. Before doing so it is necessary to set the scene in respect of this information. The applicant was interviewed by the department before the delegate made a decision. He was interviewed twice, first on 5 April and then on 19 May. At that stage he had employed a solicitor. The solicitor was in constant communication with the Department. On 30 May 1995 the Department wrote to the solicitor stating, inter alia:
“In response to your request at the interview of your client and his wife on 5 April 1995 and in your letter of 20 May 1995 I have enclosed copies of the documents cited at interview. These documents were accessed from the department’s country information service and have been cleared for release to applicants.”
When the matter went before the Tribunal it wrote a letter to the applicant dated 30 January 1996 offering the applicant an interview. In the course of that letter it stated:
“A copy of material which provides recent information on the situation in Sri Lanka is attached and will be considered by the Tribunal when determining your case.”
The hearing took place on 7 March 1996. The Tribunal was provided by the applicant’s advisers with a letter written for another applicant dated 13 February 1996, which dealt with an UNHCR Geneva document dated 4 January 1996 that included information concerning the situation of Tamils in Colombo and the problems of suggesting that refugees from the north had an internal flight alternative to Colombo [CB 165-169]. Other information was also provided to the Tribunal under cover of a letter dated 4 March 1996 including some DFAT country information dated 9 January 1996. The gravamen of that letter was the dangerous situation for an internally displaced person trying to reside in Colombo [CB 174-175]. By the time the applicant commenced his interview with the Tribunal he was in possession of a considerable quantity of information about the situation pertaining to Tamils residing in Colombo, much of which had been provided by the Tribunal to him and the balance having been provided by his own legal advisor to the Tribunal. There is no evidence that conclusively establishes exactly what information was provided by the Tribunal to the applicant but the applicant has not gone on affidavit that none of the information which he claims was adverse to his interests was not provided. He merely asserts that the information was not provided.
The first piece of information upon which the Tribunal allegedly relied is the interviews with the applicant on 5 April and 19 May 1995, referred to at [CB 187]. I cannot see how it constitutes a lack of procedural fairness not to provide an applicant with details of matters which he discussed with a delegate. He must have been aware from those discussions and from the delegate’s decision as to what was in issue in relation to those discussions. The second matter relates to certain evidence concerning the situation in Jaffna. This is not adverse information because it discusses a serious situation and one in respect of which the Tribunal says:
“Whilst I believe it is unlikely that the applicant would face persecution within the reasonably foreseeable future as a result of his ethnicity if he returned to the Jaffna region, I do not find the possibility so unlikely as to be remote.”
There is then a paragraph concerning the situation of Tamils living in Colombo. It states:
“By way of background Colombo has a population of about 2,000,000. Prior to the outbreak of hostilities in 1983 about 250,000 of these people were Tamils. Many Tamils fled the city after anti-Tamil riots in 1983 which resulted in many deaths and widespread destruction. Some have since returned and it is estimated that the current long term Tamil population of Colombo is about 350,000 including some 150,000 people who have fled the fighting in the north since 1990 (the Sri Lanka Monitor April 1995 and December 1995).”
I am unable to find that this is adverse material as it would appear to indicate problems that had existed in Colombo since the 1980s and the anodyne fact that some people have returned. The information comes from the Sri Lankan Monitor, a newspaper cited extensively in the letter of 13 February 1996 addressed to the Tribunal. It is difficult to believe that the applicant or his advisors would not have had access to this document. The evidence also does not satisfy me that it was not provided to the applicant by the Tribunal.
The next matter complained of is found at [CB 193] where the Tribunal says:
“Whilst there is no doubt that people seriously suspected of LTTE involvement had been at risk of detention and ill treatment in Colombo throughout most of the period of civil war the evidence before the Tribunal does not indicate that all Tamils who live in Colombo or indeed all Tamils who have come to Colombo from the north have faced a real chance of serious harm amounting to persecution there in recent years.”
This is a conclusion, it is not a piece of evidence in itself.
Also at [CB 193] is the paragraph which states:
“Until 1993, Colombo appears to have been a safe haven where most Tamils could generally lead relatively peaceful and normal lives (see Department of Foreign Affairs and Trade cable CL 32936 of 3 September 1991 and Research Directorate of the Canadian Immigration and Refugee Board reported in Sri Lanka: Internal Flight Alternatives (December 1992 pp 12-13)). However, President Premadasa was assassinated in May 1993 and more than 15,000 people were detained in Colombo over the next six months in the most intensive security operation directed against LTTE suspects in the city since the start of the war a decade earlier. All of the evidence before the Tribunal indicates that the overwhelming majority of the 15,000 people detained during this period were released after a brief period. The United States Committee for Refugees (USCR) Issue Paper People want peace – Repatriation and reintegration in war-torn Sri Lanka (January 1994) states that most of those detained were released within 24 hours; a UNHCR report dated 14 October 1993 states that most were held for no more than 48 hours. However, the reports before the Tribunal differ on the extent to which these detentions were arbitrary and risk of ill treatment faced by those in detention. The USRC Report, Amnesty International Report 1994, Asia Watch’s report Halt Repatriation of Sri Lankan Tamils dated 11 August 1993 and Organisation Suisse D’Aide aux Refugies (OSAR) paper, The Time is Not yet Ripe, Bern, April 1994 all state that the detentions during this period were arbitrary, with some even long term Tamil residents of Colombo being detained. UNHCR on the other hand, state that detentions were not arbitrary, although people were detained for further investigations where there was the “slightest suspicion” regarding their activities. The report also states that most of those detained were released within 48 hours and were not ill treated, although those detained for longer periods were sometimes ill treated or tortured.”
This paragraph contains a mixture of information which I am not satisfied was not brought to the attention of the applicant. The earlier part of the paragraph refers to information which cannot be said to be adverse to the applicant. There is then reference to the time during which people were detained. This could be said to be adverse to the applicant but at [CB 190] the Tribunal makes the following statement:
“However, I also noted that the information which I had indicated that the vast majority of these people were released within a short period, generally 48 hours.”
The final part of the paragraph refers to the UNHCR report that was submitted by the applicant to the Tribunal.
In the middle of [CB 194] there is a reference to a DFAT cable of 1997 noting a decline in a number of detainees and a reduction in the extent to which they were ill-treated. This piece of information was dated almost a year before the letter sent by the Tribunal and I am not satisfied that applicant’s advisors did not receive it. At the bottom of [CB 194] there is more information about the time within which persons are detained, namely 48 hours or two days, and then some information from DFAT cable CL37604 dated 9 May 1995 which appears to me to be neutral or to the advantage of the applicant.
There is then reference to DFAT cable OCL37745 of 8 June 1995 and an UNHCR Canberra report of October 1995 which also deals with the amount of time a person would spend in detention. At [CB 196] there is reference to a November 1995 Sri Lankan Information Monitor situation report. That is referred to at footnote 7 in the letter from Mr Karp at [CB 166] provided to the Tribunal. In any event it could be said that the information was not adverse to the applicant. Then a further reference to the 4 January 1996 UNHCR Geneva report, which was provided by the applicant’s solicitors, and a reference to the Sri Lankan Monitor of February 1996, also referred to by Mr Karp at the same footnote.
In regard to all of this information, and in the light of the letter from the Tribunal providing “recent information on the situation in Sri Lanka” to the applicant, I draw the inference that this information was reproduced by the Tribunal in its Grounds and Reasons because it was information with which the applicant was familiar. In those circumstances I am unable to be satisfied that the applicant was not provided with procedural fairness. Furthermore, the judgment of Davies J reveals the existence of a transcript. That transcript would have been very helpful in deciding whether or not the Tribunal had put certain of the documents to which I have referred to the applicant.
I had no evidence from the applicant that he was unable to obtain this transcript from the court files or why he may have made no effort to do so. Instead the applicant argued that the respondent should have found the transcript in its file and produced it to the court. This is a reversal of the onus.
The systematic abuse amounting to persecution issue
This issue arises out of the use of the term “systematic” in relation to the definition of persecution. It is to be remembered that the use of the expression “systematic conduct” was used in Periannan Muragusu v Minister for Immigration (1987) 217 ALR 17 per Wilcox J and then considered by McHugh J in Chan v Minister for Immigration (1989) CLR 379. The discussion of this phrase in these cases was referred to by Hill J in Mohamed v Minister for Immigration (1998) 51 ALD 666 and then by the Full Court in Abdalla v Minister for Immigration [1998] 51 ALD 11 before the situation was clarified by McHugh J in Minister for Immigration v Ibrahim [2000] HCA 55 where McHugh J under the heading “Meaning and Legal Status of “Systematic Conduct”” said:
“[99] It is an error to suggest that the use of the expression "systematic conduct" in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or "must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic.". The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant's nationality is the understandable choice of that person.
[100] Given the misunderstanding that has arisen from using the term "systematic conduct", it is probably better to refrain from using it in a Convention context. But if it is to be used, those who use it should make it clear that they are referring to "non-random" acts; otherwise, they run the risk of making a legal error.
How did the Tribunal use the expressions "systematic conduct" and "unsystematic conduct"?
[101] The Tribunal did not use the term "systematic conduct" to refer to a number of acts. Nor did it use the term to mean a series of coordinated acts directed at the applicant or his clan or sub-clan. As I have said, the Tribunal stated that, in an appropriate case, persecution may "include single acts of oppression". The Tribunal appears to have been of the view that the "instability, anarchy and murderous shiftings" meant that the harm that the applicant feared was random, and so "unsystematic" in the sense of not being selective. There was no error of law in this approach. Accordingly, the Full Court erred when it held otherwise.”
The definition of persecution used by the Tribunal in the instant case was considered by Davies J in his judgment. His Honour said at page 17 of his judgment:
“The Tribunal held on the material before it that, although Tamils in Colombo suffer some degree of discrimination, inconvenience and difficulty when living in Colombo, the general problems which they face do not amount to persecution, as that term is used in the definition of “Refugee” in the Refugee Convention. The Tribunal expressed its view of “persecution” in these terms:
‘Persecution is not precisely defined in the Convention or in Australian law. However, it is generally agreed that it means serious harm or discrimination or abuses of fundamental human rights inflicted on a group or an individual as part of a systematic course of conduct by the government or other groups or individuals in their country of nationality. Loss of life, prolonged detention and torture are clearly forms of persecution. Serious forms of social, economic or political discrimination may also be considered persecution under the Convention. For example, serious restrictions on the right to work, to earn a livelihood, to gain a basic education, to practice a religion or to participate equally in the political life of a national may amount to persecution, depending on the circumstances. (Chan's case, Mason CJ p388, McHugh J p430 and James C Hathaway, The Law of Refugee Status, Butterworths Canada LTD, pp103-105).’
Minor forms of discrimination or harassment would not generally be considered serious enough to amount to persecution. However, if an applicant faces a number of relatively minor forms of discrimination and harassment and the combined effect of these problems is of a serious nature, then the harm involved may amount to persecution (United Nations Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1988 paragraph 53).
Not all acts of harm are acts of persecution. Persecution implies an element of attitude or motivation on the part of those who persecute for the infliction of harm on others. (Burchett J pp 6-8 Kuldip Ram v The Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal, unreported, 27 June 1995).
Harm suffered as a result of random and incidental violence during civil war or communal unrest is not generally considered to be persecution. However, if an individual or a group is targeted for systematic attack during civil war or their treatment during communal unrest is part of a pattern of serious harassment or discrimination directed against them, they may be considered victims of persecution. (Wilcox CJ, Periannan Murugasu v Minister for Immigration and Ethnic Affairs, Federal Court, 28 July 1987, p8 & 13 see also McHugh J in Chan's case p430 and Hathaway, p188).”
It was not submitted by Counsel that there was any error in this description by the Tribunal of the concept of persecution.”
[CB- 219 220]
A point that immediately arises is that it would have been open to those representing the applicant before his Honour to have argued that the Tribunal had misunderstood the authorities upon which it relied for the purposes of giving its definition of persecution. That argument was made in Ibrahim. To the extent that they failed to do so here would have bought into play the doctrine of Anshun estoppel if the hearing had been a final hearing. Regrettably, it was not. Whether, in a matter such as this, where the views of the court deciding the order nisi are determinative of claims Anshun estoppel would apply (or better put should apply), is an argument for a higher court.
I am not satisfied that the Tribunal did err in law in its description of the concept of persecution because in the Tribunal’s mind there really was no argument that Tamils as a group were sought out for discriminatory and even persecutory action by those representing the government of the day. That was not the issue. The issue was whether or not the conduct that took place in Colombo was sufficiently serious to amount to persecution as that word was understood. The Tribunal came to the view that it was not based upon the country information.
It took the view that the applicant was unlikely to be arrested or detained if he lived in Colombo because of the fact that he was not a member of the LTTE, and that if he did suffer arbitrary arrest or detention it was unlikely to last more than 48 hours and he was not likely to be harmed seriously during that period. This being the basis of the Tribunal’s decision the debate about whether or not it misunderstood the meaning of systematic as described in the cases of Murugasu and Chan referred to by the Tribunal in its decision is irrelevant.At long last this applicant has had a final hearing in respect of his case. It has not availed him, but at least, after the appeal processes have been completed, the litigation will be at an end. The Minister may well feel that having been in this country so long and given the current situation in Sri Lanka he might be a person to whom the benefit of s.48B of the Migration Act 1958 or a humanitarian visa could be given. That is a matter for the Minister alone.
I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
0
4
2