Vfar v Minister for Immigration - [2004] FMCA 282

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VFAR v MINISTER FOR IMMIGRATION

[2004] FMCA 282

MIGRATION – Application for protection visa – use of country information – applicant not notified of country information – applicant elected not to attend hearing – whether breach of natural justice – whether breach of statutory requirement to give notification of information.

Migration Act 1958, ss.424A, 424(3), 422B

NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262, (2003) 203 ALR 494
Muin v Refugee Review Tribunal (2002) 190 ALR 601

Applicant:

APPLICANT VFAR OF 2002

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 761 of 2002

Delivered on:

13 May 2004

Delivered at:

Melbourne

Hearing date:

13 February 2003

Judgment of:

Phipps FM

REPRESENTATION

Counsel for the Applicant:

Mr Cheung

Solicitors for the Applicant:

David Kin Cheung

Counsel for the Respondent:

Mr G. Livermore

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $5,740.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 761 of 2002

APPLICANT VFAR OF 2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant, a citizen of Sri Lanka, arrived in Australia on

20 January 1999. On 13 November 2000, he lodged an application for a protection visa. On 28 November 2000, a delegate of the respondent refused to grant the visa. On 28 December 2000, the applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. By a decision dated 4 June 2002, the Tribunal affirmed that decision not to grant a protection visa. The applicant seeks review by way of prerogative writ of that decision.
The Tribunal set out the applicant's claims and the evidence. At the time of the hearing, the applicant was aged 23 years. He is a Sinhalese Buddhist from Kandy. He claimed that he fell in love with a Tamil woman in Kandy with whom he used to have secret trysts. He claimed that they allowed the relationship to blossom despite their different ethnic backgrounds and the doubts as to whether their parents would sanction the liaison.
He claimed that when his girlfriend went to study in Colombo he arranged for her to stay at the house of one of his Sinhalese friends. He claimed a couple of months later his girlfriend mysteriously disappeared. He claimed that he discovered that she had been operating as a spy for the Liberation Tigers of Tamil Eelam (“LTTE”). He claimed a friend in the intelligence service informed him that he, like his girlfriend, was also suspected of involvement with the LTTE.
The applicant claimed that he went into hiding and then fled the country after his mother informed him that members of the intelligence service had visited the family home several times in search of him. He claimed that his father, a retired police officer, also suspected him of being connected to the LTTE.
The Tribunal set out that on 14 May 2002, the Tribunal wrote to the applicant inviting him to give evidence at a hearing scheduled for

26 June 2002. On 3 June 2002, the Tribunal received signed advice from the applicant that he did not wish to attend the hearing and that he had nothing further to add to the material already on file. The Tribunal therefore considered the application on the basis of the material on the file.
The Tribunal said that it was not satisfied that the applicant ever had a Tamil girlfriend or that he was ever suspected of having an association with the LTTE and was sought by the authorities as a consequence. It said that if the applicant was ever of any adverse interest to the authorities, it was apparent from his capacity to depart Sri Lanka on his own passport that he was not wanted at that time. The Tribunal gave weight to the fact that the applicant had delayed his application for asylum for almost two years after his arrival in Australia. It said that such a delay was inconsistent with the existence of a subjective fear.
The Tribunal gave weight to the country information from the Australian Department of Foreign Affairs and Trade in its cablegram CL38234, 15 December 1995. This was to the effect that people of Sinhalese ethnicity were not sympathetic to the LTTE.
The jurisdictional error alleged on behalf of the applicant was said to be failing to give the applicant notice that it intended to take into account the information contained in the cablegram. It was submitted that the Tribunal breached the rules of natural justice and the requirements of s.424A of the Migration Act 1958. Either might constitute jurisdictional error and so entitle the applicant to relief.
Section 424A on the Migration Act provides:
(1)Subject to sub-s.(3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in s.441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non-disclosable information.
In NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262, (2003) 203 ALR 494 the Full Court of the Federal Court discussed the application of s.424A(3) and the application of the rules of natural justice in circumstances also covered by s.424A. As in NARV, s.422B has no application. The rules of natural justice apply.
The information contained in the cablegram is not specifically about the applicant and is just about a class of persons of which the applicant is a member. The class of persons were people of Sinhalese ethnicity. Section 424A(3) applies. The Tribunal had no obligation pursuant to s.424A to give the applicant notice of the information.
In Muin v Refugee Review Tribunal (2002) 190 ALR 601, McHugh J stated at 631 [123]:
Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power. This does not mean that the source and nature of all material that comes before the decision-maker must be disclosed. But "in the ordinary case ... an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made". What is required to discharge this duty depends on the circumstances of the particular case.
There was no breach of the rules of natural justice. The delegate’s reasons contained a statement that the delegate considered implausible that persons, such as the applicant, would have become involved with a person of Tamil ethnicity in the first place. The delegate did not believe that a highly political pro-LTTE operative would have become involved with the applicant who is Sinhalese and professes to have no pro-Tamil or LTTE sympathies.
The applicant received a copy of the delegate’s decision before making his application to the Tribunal. The letter from the Tribunal notifying the applicant that it had received his application advises him that the Tribunal had asked the department to send a copy of its documents to the Tribunal. The applicant knew that the Tribunal would have the delegate’s decision before it. He had notice that the Tribunal might take into account information of the sort contained in the cablegram. He had the opportunity to respond to it if he chose to do so. There was no breach of natural justice.
The applicant has put no material before the court as to how he might have responded to any notice of the Tribunal's intention to rely upon the information contained in the cablegram. It cannot be assumed that he would have contested, or would have been able to contest the information. If he could not, even if there was a requirement on the Tribunal to give the applicant notice, the failure to do so has not affected the decision.
No jurisdictional error has been shown. The application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: R. Campbell

Date: 13 May 2004