FEDERAL COURT OF AUSTRALIA

M166 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 966

M166 OF 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

VID 1318 OF 2004

NORTH J

30 JUNE 2005

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         The appellant is to pay the respondent’s costs of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Riethmuller FM delivered on 7 October 2004, in which his Honour ordered that the order nisi made by Weinberg J on 15 March 2004 be discharged, and the application be dismissed.  The appeal was heard by a single judge of this Court, pursuant to a determination to that effect made by the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) on 1 February 2005.

2                     The application for an order nisi related to a decision of the Refugee Review Tribunal (the Tribunal) of 21 November 1997.  The Tribunal affirmed the decisions of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, not to grant protection visas to the appellant, his wife and child.  After the decision of the Tribunal, the husband (whom I shall refer to as the appellant) joined the class action in the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 (Muin).  The High Court handed down its decision in that case on 8 August 2002.  The appellant then made an application to the High Court for an order nisi for review on 23 May 2003.

3                     That application was remitted to this Court and came before Weinberg J for directions on 15 March 2004.  The case of the appellant, as it was then framed, contained contentions of fact and law in terms so broad that Weinberg J ordered the appellant to further particularise his contentions.  The appellant provided further particulars on the same day.  Weinberg J examined the further particulars and granted an order nisi limited to one ground alone.  His Honour then remitted the matter to the Federal Magistrates Court.

4                     The ground upon which the order nisi was made was as follows:

The tribunal failed to accord procedural fairness or breached the rules of natural justice in that while it conceded in its decision that information about attacks on members of the UNP, submitted by the applicant, complements information available to the tribunal (page 15, paragraph 2), then refers to several supporting newspaper articles in this area, it provided the applicant with no chance to comment on its observation that many reports on the human rights situation in Sri Lanka, from such bodies as Amnesty International and Asia Watch, make no reference to such persecution.

5                     The Federal Magistrate heard argument on that formulation and rejected the appellant’s application.

6                     The appellant is a national of Sri Lanka who arrived in Australia on 24 February 1995 on a visitor’s visa together with his daughter.  His wife arrived on 19 May 1995.  He was aged 47 at the time of his arrival in Australia.  He made a number of claims relating to his activity in politics in Sri Lanka.  The claim relevant to the present proceedings concerned his involvement as a member of the UNP, and his fear of persecution from the opposing People’s Alliance Party supporters.

7                     Whilst the argument centred on the paragraph emphasized in the following passage, it is useful to set out a longer extract which shows the way in which the Tribunal approached this part of the appellant’s claim.  The Tribunal stated, at 15–17:

The Applicant claims that he is at risk of being attacked by the current government because he is a member of the UNP.  His fears are exacerbated because he believes he has been targeted by Minister Ratwatte. As found above, the Tribunal does not accept that the Applicant was shot at in 1994 or threatened at his house in 1995. These were incidents he claimed were perpetrated by Ratwatte’s followers and are disbelieved. He has submitted information about attacks on members of the UNP that complements information available to the Tribunal. That information shows that UNP members and supporters have been attacked on a number of occasions recently by PA members and supporters. In April 1996 the Sri Lanka Information Monitor reported the occurrence of political violence outside Colombo where a group of persons described as supporters of a ruling party politician opened fire at Anamaduwa in Puttalam district on April 1 while members of the UNP were preparing for a political party rally later on during the day. At least eight persons were reported to have been injured in this incident. Other media articles also reported this incident. The Sunday Times, ‘Police Checking Bodyguards of all Politicians’, 7 April 1996, commented that scores of UNP members and supporters were injured while houses and property were heavily damaged. Bodyguards of all politicians who were around the area during the time of the violence were told have their weapons checked. Reuters, ‘Sri Lanka opposition, government supporters clash’, 3 April 1996 reported the incident as follows:

‘Government supporters burnt tyres and blocked roads to try to disrupt the Tuesday afternoon meeting by the main opposition United National Party (UNP) in the town of Anamaduwa, 120 km (75 miles) north of Colombo. Five UNP supporters and nine from the ruling People’s Alliance were wounded on Monday when unidentified gunmen opened fire after the two groups clashed in the town.’

Some incidents in Negombo (Colombo outskirts) reported in The Island of 22 September 1996 arose from fighting between PA and UNP supporters after the disruption of a UNP ‘golden jubilee’ celebration. Other articles refer to the same or similar incidents (see, for instance, ‘Anamaduwa doctrine: Reign of terror, says UNP’, The Sunday Times (Colombo), 7 April 1996; ‘Arson, assassinations worry UNP’, The Island, 7 April 1996; ‘UNP member assaulted’ and ‘UNP wants international probe into Anamaduwa fracas’, Sunday Observer, 7 April 1996; ‘Four killed, seven injured in Negombo shooting’, Lanka Link, 5 October 1996; ‘Top level inquiry into Negombo violence’, Sunday Observer, 22 September 1996; ‘One dead in PA-UNP clash at Katunayake’, The Island, 1 September 1996; ‘Human Rights Alert from UNP’, The Sunday Times(Colombo), 29 September 1996; ‘Dead are buried but threats continue’, The Sunday Times (Colombo), 29 September 1996; ‘Check political thuggery to ease Negombo’s tension’, The Sunday Times (Colombo), 8 September 1996; ‘Violence against UNP continues’, The Island, 20 October 1996; ‘Killing fields of Negombo’, The Sunday Times (Colombo), 22 September 1996; ‘End violence’, The Sunday Times (Colombo), undated; ‘CRM condemns political violence’, Sunday Observer, October 1996[)].

These reports refer to very few isolated and sporadic incidents which are not organized or orchestrated and cannot be seen as ‘part of a course of systematic conduct’ directed at UNP members or supporters. In the many reports on the human rights situation in Sri Lanka by Amnesty International, Asia Watch and many other organizations, which are available to the Tribunal, there is not, to this Tribunal’s knowledge, a single passage in which it is alleged that UNP members or supporters face persecution, human rights abuse, victimization or even harassment by reason of their political opinion.  (hereinafter referred to as the contentious paragraph)

Further, some of the reports suggest that the incidents are localized ones. ‘Criminalisation of politics’ describes the incidents as:

‘... a political war that had been raging in the Negombo, Katunayake, Seeduwa area between supporters of Sri Lanka’s two main political parties for quite some time now.’

Cable CL320 of 24 September 1996 reports that the district in which many of the incidents occurred is ‘a hotbed of political power struggles’ and that ‘the current violence is a result of endemic local political thuggery and attempts to take over lucrative business enterprises, which are controlled by local politicians’.

The Applicant does not come from the areas in which the isolated incidents of violence occurred, although he claims one of his former employees was among the victims of the Negombo incident in September 1996. If that is the case, the Tribunal does not accept that the employee’s fate was in any way linked with the Applicant, particularly as the incident occurred a long time after the Applicant’s departure. Apart from an attack on the day of the provincial elections, which he escaped unscathed, he has never been seriously harmed and he felt secure enough to resort to the police and then become involved in the Presidential elections. He remained in the country for several months without being harmed and since the 1994 elections and over more recent times the incidence of political violence has dramatically dropped, despite the ongoing war between the government and Tamil separatist groups.

If Mr Ratwatte had wished to harm the Applicant or his family and property, he could have done so by taking advantage of his Defence Ministry. He did not do so and there is no reason to believe that there is a real chance he might do so in the future, notwithstanding that the Applicant insulted him during a past political campaign. It is plausible that Ratwatte has appointed a PA supporter as a local police inspector and that the inspector favours PA members over UNP members. It appears that the Applicant took advantage of similar patronage when President Premadasa was in power, without the suggestion that anybody who was not a supporter of the UNP was persecuted. There is no evidence to support a claim that UNP supporters are now systematically harassed or seriously harmed by the present government, although it is plausible that UNP followers are less likely to be the beneficiaries of government largesse. In all of the circumstances, the Tribunal finds that the applicant does not face a real chance of persecution by reason of his UNP membership or activities or his former links with the DUNF.  (enphasis added)

8                     As the case started as part of the Muin litigation it is appropriate to view the current ground in that context.  In Muin it was observed that a claim that the Tribunal has misled the applicant must be made good by evidence.  In the present case there is no evidence that the Tribunal misled the appellant in the way that it used the country information referred to in the contentious paragraph.  There is no affidavit from the appellant about anything which the Tribunal may have said or done to mislead him.  The transcript of the proceedings before the Tribunal is not before this Court and was not before the Federal Magistrates’ Court. 

9                     Further, as the Federal Magistrate observed, the Amnesty International material was provided by the appellant himself to the Tribunal.  Counsel for the appellant informed the Court on the appeal that the appellant also provided to the Tribunal at least one of the critical newspaper reports referred to by it.  The appellant is therefore unable to make out the contention that he was misled about the existence of that material or that it was before the Tribunal and considered by the Tribunal.

10                  In truth, the appellant’s argument moved away from its genesis in a Muin-type allegation.  It seemed to assume that the Tribunal was required to ask the appellant to comment on its analysis of the newspaper reports and reports from human rights organisations.  However, that goes beyond the obligation of procedural fairness.  It amounts to requiring the Tribunal to disclose its reasoning process to the appellant.  The Tribunal is not required to do so.  There is no breach of procedural fairness, or the rules of natural justice, if the Tribunal does not disclose its reasoning process, or if it fails to explain how it was thinking in relation to the evidence before it:  Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2 per Northrop, Miles and French JJ; NAPS v Minister for Immigration and Multiciultural and Indigenous Affairs [2004] FCA 159 at [38] per Allsop J.

11                  It became clear in the course of argument on the appeal that this was not really the essential argument which the appellant wished to advance.  Indeed, in his written outline the appellant addressed a series of additional arguments.  As Weinberg J had carefully considered the scope of the order nisi which should be granted, and the scope of the arguments which the appellant should be permitted to agitate, and further as no appeal was taken from his Honour’s orders, it would be quite wrong to allow the additional arguments to be agitated at this stage in the litigation.

12                  In any event, from the summary of argument which I heard it is clear that the argument proposed to be made was destined to fail.  The essence of the argument was that the Tribunal fell into jurisdictional error in the contentious paragraph.  Counsel for the appellant contended that the conclusion of the Tribunal that the reports referred to ‘very few isolated and sporadic incidents which are not organised or orchestrated’ was completely wrong.  He submitted that the article in the Sunday Times of 7 April 1996 entitled ‘Anamaduwa Doctrine: Reign of Terror, Says UNP’ referred to by the Tribunal demonstrated that the UNP that its supporters were targeted by members and supporters of the PA.

13                  The part of the decision of the Tribunal which has been extracted demonstrates a comprehensive analysis of the material before it concerning dangers to UNP members from PA members and supporters.  The passage to which particular criticism is directed is but one element in the reasoning.  For instance, immediately before the passage is a lengthy description of the incidents at Anamaduwa.  It is by no means clear that the conclusion reached by the Tribunal on the facts was wrong, but even if it were, it would not amount to a jurisdictional error.  This argument was bound to fail, and hence there is no justification for permitting it to be raised on appeal.

14                  The appellant also sought to introduce new evidence relating to the reference by the Tribunal to the Amnesty International and Human Rights Watch reports.  This was to support the following contention made in the outline of submissions:

17. Additional to submissions made at the Federal Magistrates Court, the appellant has recently received advice from the Tribunal’s library that publications under the name Asia Watch were discontinued in 1993, appearing after January 1994, and received by the library, under the name Human Rights Watch. The Human Rights Watch annual reports for 1998 and 1997, both published prior to Human Rights Day on December 10, covered events for the previous years 1997, and 1996 respectively, and both made specific reference to instances of violence between UNP and PA members and supporters. Further, the Introductions to both reports carry disclaimers to the effect that the extent to which issues are covered is not to be seen as reflecting their importance, for various reasons.

15                  I ruled that this evidence would not be received on the appeal as no attempt has been made to fulfil the requirements relating to the reception of new evidence on appeal.  The evidence was said to show that there were no Asia Watch reports at all after 1993, and that the reports of Human Rights Watch and Amnesty International for 1997 and 1998, covering the period 1996–97, made specific reference to instances of violence between UNP and PA members and supporters. 

16                  The report for 1997 seems to, and the report from 1998 certainly does, post-date the Tribunal decision.  They could not have been material upon which the Tribunal relied, and cannot therefore be used to show error committed by the Tribunal.  Finally the evidence would not have necessarily made any difference to the ultimate decision, because the Tribunal already had evidence of instances of violence between UNP and PA members and supporters before it, but analysed it in such a way as to conclude that there was not a direct threat of persecution to the appellant.  The appellant wished to rely on the new evidence simply to reagitate the Tribunal’s considerations on the facts.

17                  Furthermore, there was no effort to show that this evidence was not available to the appellant at the time of the Tribunal hearing, and no explanation given as to why it was not raised before the Tribunal.  Finally, the new evidence raised matters of fact which the respondent may have wished to dispute.  It was therefore not in the interests of justice that the new evidence be admitted at the appellate stage. 

18                  The appeal must be dismissed, and the appellant must pay the respondent’s costs of the appeal.

Associate:

Dated:              13 July 2005