FEDERAL COURT OF AUSTRALIA

Applicants S503 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1372

IN THE MATTER OF AN APPLICATION FOR WRITS OF MANDAMUS, CERTIORARI AND PROHIBITION AGAINST THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and THE REFUGEE REVIEW TRIBUNAL;

EX PARTE APPLICANTS S503 of 2003

N711 of 2004

JACOBSON J

21 OCTOBER 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent's costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for constitutional writs under section 75(v) of the Constitution.  The applicants seek prohibition directed to the first respondent (“the Minister”) and certiorari and mandamus directed to the second respondent (“the RRT”) effected at quashing and preventing enforcement of a decision of the RRT made on 22 September 2004, and handed down on 16 October 2004.  The RRT affirmed a decision of a delegate of the Minister refusing to grant the applicants protection visas.

2                     Proceedings were commenced in the High Court on 16 September 2003 by the filing of a draft order nisi.  The proceedings were remitted to this court by Heydon J on 16 September 2004 under section 44 of the Judiciary Act 1903 (Cth).

3                     The applicants claim a denial of procedural fairness on two separate bases.  Firstly, they claim that the RRT failed to receive and consider relevant material in the “Part B” documents.  They rely on the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 (“Muin”).  Secondly, the applicants claim that the RRT had before it country information on which the RRT relied and which is said to have been adverse to the applicants claim.  It is said that the RRT failed to bring this information to the applicant's attention and failed to provide the applicants with an opportunity to respond.

4                     The applicants are husband and wife.  They are citizens of Sri Lanka who arrived in Australia on 16 August 1999.  They lodged an application for protection visas on 17 September 1999.  No separate claim was made on behalf of the wife, and her application turns entirely on her husband's application.  I will refer to the husband as the applicant.

5                     The applicant claimed to fear persecution in Sri Lanka by reason of his race and imputed political opinion.  The applicant is a Tamil from the province of Jaffna in the Northern Region of Sri Lanka.  From 1980 his employment as a soil tester caused him to travel throughout the north of Sri Lanka, and to his head office in Colombo, in a jeep which was allocated to him.   The applicant claimed to have been mistreated by both the Liberation Tigers of Tamil Eelam (“LTTE”) and Sri Lankan security forces, because the LTTE borrowed the jeep in the late 1980s and in the early 1990s the police demanded use of the jeep.

6                     The applicant claimed that in the early 1990s, Sri Lankan security forces detained and mistreated him, accusing him of being an LTTE supporter.  He claimed to have been released after paying a bribe.  The applicant claimed that a friend in Brunei assisted him to obtain a work visa in Brunei, where he worked from 1993 until 1999.  He claimed to have attempted unsuccessfully to bring his wife to Brunei in 1995.

7                     The applicant returned to Sri Lanka in 1999 when his employment ended, and he claimed that he remained in Colombo from that time because he did not believe he could return to his village due to demands for bribes and threats from security forces.

8                     In its findings and reasons at page 30, the RRT accepted that the applicant had a genuine fear of persecution on return to Sri Lanka, but was not satisfied on the evidence that there was a real chance that the applicant would be persecuted for a Convention reason, either on return to Sri Lanka or in the reasonably foreseeable future.

9                     The RRT observed that the applicant was last mistreated in 1993.  The RRT found that the applicant had no reason to believe that the Sri Lankan Police and security forces would be interested in him because they had not been interested in him immediately before his departure in 1993.  Further, the RRT was satisfied on the evidence of the applicant's capacity to enter and depart the country without impediment, apart from paying bribes at various points, which was a common practice in Sri Lanka.  Accordingly, the RRT was satisfied that the Sri Lankan authorities had no interest in the applicant.

10                  The RRT was not satisfied on the evidence that there was any likelihood that the LTTE would seek out the applicant or cause him harm as he had done nothing to antagonise them, and the RRT said “on the contrary, he has assisted them when required to do so”.

11                  The RRT did not accept that the fact that the applicants are Tamils would cause them any special difficulty, as they had not experienced any difficulties in the past in travelling in and out of the country. 

12                  The RRT concluded by noting articles in the BBC, dated August and September 2002, regarding peace talks between the Sri Lankan government and the LTTE.

13                  The RRT observed that

“…notwithstanding some optimism being expressed about the progress with the talks, the situation in Sri Lanka is largely unsettled and volatile and there are many political and social problems.”

14                  However, the RRT was satisfied that the applicants could safely return and reasonably re-establish themselves in Sri Lanka. 

15                  The applicants sought judicial review of the decision of the RRT.  Their application was heard and determined by Federal Magistrate Driver on 16 June 2003 in SNABG & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 242.  The applicant asserted two legal errors in the decision of the RRT.  The first was that the RRT proceedings were said to have been procedurally unfair because the applicant was not given an opportunity to comment upon the BBC articles, to which I referred above. 

16                  The learned Magistrate observed that the hearing before the RRT took place on 17 July 2002, and that the three BBC reports were created after that date.  Accordingly, he accepted that the applicant was not given an opportunity to comment on the reports.  However, the Federal Magistrate found, at [7], that there was no procedural unfairness in the failure of the RRT to disclose the three reports to the applicant.

17                  Two reasons were given for this.  First, the RRT did not treat the content of the reports as adverse to the applicant's claim.  Second, the RRT had already concluded that the applicants were of no interest to the Sri Lankan government or the LTTE.  Accordingly, the only effect of the BBC reports was, in the Magistrate's view, to establish to the RRTs satisfaction that the conclusion that the RRT had already reached should not be altered upon the basis of the country information. 

18                  The second issue which was raised before the Magistrate was an assertion that the RRT had failed to deal with an element or integer of the applicant's claim.  However, the Magistrate came to the view that the RRT had considered this aspect of the claim. 

19                  Accordingly, the Magistrate found no jurisdictional error and dismissed the application.  The Magistrate did observe at [12] that the applicants were accepted as genuine in their fears by the RRT and that they were in 1993 victims of the Sri Lankan civil war.  He observed that they had spent most of their lives since then outside of Sri Lanka, that they are from the Jaffna Peninsula and in the circumstances they are understandably afraid to return to Sri Lanka on a permanent basis.  The Magistrate observed that there are humanitarian issues in the case but that this is beyond the scope of the proceedings.

20                  The applicants filed a notice of appeal from the decision of the Federal Magistrate but the appeal was discontinued on 1 September 2003.  In his affidavit filed in support of the present application the applicant made the following statements in support of his claim of denial of procedural fairness relying upon the decision in Muin:

“That decision of the Tribunal indicates to me that the Tribunal did not receive from DIMIA and consider the documents referred to in Part B of the Delegate’s decision dated 20 March 2000, nevertheless by letter dated 4 April 2000, the Tribunal undertook to look at such documents, together with other documents on my file, when determining my claims.  Further, by letter dated 17 June 2000, the Tribunal subsequently informed me that it had looked at all the material relating to my Application.  I am thereby misled.  If the Tribunal had not misinformed me, I would have obtained such material from DIMIA and would then have brought to the attention of the Tribunal any material in the delegate’s decision, which was favourable to me.”

21                  Mr Reilly, Counsel for the Minister, submits that the applicant's argument based on Muin must fail because there are no agreed facts in the present case and also because the matters put forward in the applicant’s affidavit do not establish a denial of procedural fairness consistent with the High Court’s decision in Muin; see NADR v The Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 465 at [24] to [26] per Kiefel J, with whom Spender J agreed.

22                  It seems to me that Mr Reilly's submissions are correct.  The applicant's affidavit does not provide any particulars of the information which he says the RRT failed to consider.  The evidence in the affidavit is not sufficient to make out a claim that the applicant was misled. 

23                  The second limb of the applicant's application is that the RRT had before it country information on which the RRT relied and which was adverse to the applicant's claim.  He refers to this in [11] of his affidavit.  He says that the RRT failed to bring the information to his attention and failed to provide him with an opportunity to respond.  The claim must therefore be taken as a claim of denial of procedural fairness or an alleged contravention of section 424A of the Migration Act 1958 (Cth) (“the Act”).

24                  However, the applicant does not identify what information the RRT failed to bring to his attention.  If what is contended is that the RRT failed to bring to his attention the BBC reports of August and September of 2002 there can be no denial of procedural fairness for the reasons given by the Federal Magistrate.  Moreover, there could be no breach of section 424A(1) for the same reason and in any event the documents would fall within the exception contained in section 424A(3)(a) of the Act because the information “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”.

25                  In summary, therefore, there is no material before me which can be pointed to as giving rise to a claim of denial of procedural fairness. 

26                  Mr Reilly submitted that the application is precluded by the principles of res judicata, issue estoppel and abuse of process.  He referred to the decision of Lindgren J in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36] -[39], and the decision of the High Court in Walton v Gardner (1993) 177 CLR 378 at 393.  However, in view of the conclusions I have reached on the two grounds relied upon by the applicant in support of the claim for constitutional writs, it is unnecessary for me to decide the application on the basis of either res judicata, issue estoppel or abuse of process.

27                  The applicant sought an extension of time because the application was made outside the time limits stated in the High Court rules.  It is not necessary for me to deal with this aspect of the application.  However, I note the Minister's concession that having regard to the comments in Applicant S422 of 2002 v MIMIA [2004] FCA FC 89 at [29], it is not contended that the time limits in the High Court Rules O 55 rr 17 and 30 apply to this matter.  Nor does the Minister contend that the application should be treated as an application for orders nisi only.  The Minister states, in her written submissions, that pursuant to O 51A r 5 of the Federal Court Rules, the application should be treated as an application for constitutional writs on a final basis so that my decision will be final rather than interlocutory; see Applicants S61 of 2002 v Refugee Review Tribunal (2004) 206 ALR 461. 

28                  Accordingly, I will order that the application for constitutional writs be dismissed and the applicant is to pay the respondent’s costs of the application.

Associate:

Date:                26 October 2004