Applicant M90 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 109

FEDERAL COURT OF AUSTRALIA

Applicant M90 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 109 APPLICANT M90 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS V 52 of 2004 BLACK CJ, DOWSETT AND BENNETT JJ MELBOURNE 5 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 52 OF 2004

BETWEEN: Applicant M90 of 2003

APPlicant

AND: Minister for Immigration and Multicultural and Indigenous Affairs

RESPONDENT

JUDGES: BLACK CJ, DOWSETT AND BENNETT JJ

DATE OF ORDER: 5 MAY 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application for an extension of time for leave to appeal and the application for leave to appeal be refused, with costs. 2. The appeal be struck out incompetent, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 52 OF 2004

BETWEEN: Applicant M90 of 2003

APPlicant

AND: Minister for Immigration and Multicultural and Indigenous Affairs

RESPONDENT

JUDGES: BLACK CJ, DOWSETT AND BENNETT JJ

DATE: 5 MAY 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT (Revised from transcript) The Court: 1 This is an application for an extension of time to apply for leave to appeal from an order of a judge of the Federal Court made on 22 December 2003 and, if an extension of time is granted, an application for leave to appeal from such order. 2 The applicant, who is a Tamil businessman from Colombo, Sri Lanka, first arrived in Australia with his wife and daughter on 26 February 1996. On 29 May 1996, he applied for a protection visa. This application was refused by a delegate of the respondent and the applicant then sought review of this refusal by the Refugee Review Tribunal ('RRT'). He attended a hearing before the RRT on 13 August 1997 with his wife and advisor. On 19 August 1997 the RRT affirmed the delegate's decision. 3 The applicant appears to have then sought, unsuccessfully, a more favourable decision from the Minister under s 417 of the Migration Act 1958 (Cth) ('the Act') on 22 May 1998. 4 The applicant joined the Muin and Lie class action (commenced in reliance upon O 16 r 12 of the High Court Rules) on 8 November 1999. That action was heard by the High Court in August 2002 (see Muin v Refugee Review Tribunal (2002) 160 ALR 601). Following the success of that class action, Justice Gaudron ordered, on 25 November 2000, that leave be granted to each of the individuals identified in the Schedule to the Statement of Claim for the Muin and Lie class action to file an application seeking an order nisi for constitutional writs in relation to the respective decisions of the RRT concerning that individual. The applications were to be filed on or before 1 June 2003. Her Honour further ordered that any application so filed should be remitted instanter upon filing to this Court pursuant to s 44 of the Judiciary Act 1903 (Cth). The applicant, who is one of the individuals identified in the Schedule to the Statement of Claim, filed an application for an order nisi seeking writs of prohibition and certiorari in respect of the RRT's decision. He did so within the time limited by her Honour's order. 5 The application having been remitted to this Court, a directions hearing was held on 17 December 2003. The respondent requested to be heard on an application for summary dismissal of the matter, primarily on the basis that the applicant had failed to provide evidence to support his claims that the RRT had not afforded him procedural fairness. Following a short discussion between the primary judge and the applicant, his Honour told the applicant that he was not satisfied on the material before him that the grant of an order nisi would be appropriate. He asked the applicant to identify precisely the failure by the RRT to observe procedural fairness. In particular, he requested the applicant to identify what information in the US State Department Annual Report on Human Rights favourable to the applicant he claimed the RRT had failed to take into account. To give the applicant a further opportunity to do this, the primary judge adjourned the hearing of the respondent's application for summary dismissal until 22 December 2004. 6 When the matter came on for hearing again on 22 December 2004, the applicant did not appear. The respondent asked that the application be dismissed, referring to the directions hearing of the previous Wednesday and the fact that the matter was before his Honour that morning for the applicant to provide the further material and address the issues. His Honour then said: 'In those circumstances, due to the non-appearance of the applicant, I will order that: 1. The application for orders nisi for writs of prohibition and certiorari be refused 7 His Honour also ordered that the applicant pay the respondent's costs of and incidental to the application. It is not clear whether his Honour refused the application in the exercise of the powers conferred in O 20 r 2(1)(a) of the Federal Court Rules, or pursuant to s 20(5)(c) of the Federal Court Act 1976 (Cth), O 10 r 3(2)of the Federal Court Rules, or if the matter were treated as a 'trial', O 32 r 2(1)(c). 8 On 21 January 2004, the applicant filed a notice of appeal against his Honour's orders. A number of procedural issues arise in relation to that notice of appeal. The first, of course, relates back to the nature of the order made by his Honour. If it was made under O 10 r 3(2) or O 32 r 2(1)(c), the appropriate course would have been for the applicant to apply to have those orders set aside and to reinstate the appeal. If it was made under O 20 r 2(1)(a), two other procedural issues arise. The first isthat an order refusing an application for an order nisi is an interlocutory order and therefore leave to appeal is required: see NAHQ v Minister for Immigration and Multicultural Affairs [2003] FCAFC 297 and s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The second is that the applicant's notice of appeal was filed out of time. 9 On 21 January 2004, the applicant also filed an application for an extension of time in which to file and serve a notice of appeal. In his affidavit in support of his application for an extension of time, he submitted that an extension should be granted because he was under the misapprehension that he had 21 days in which to lodge his notice of appeal rather than the 7 provided for in O 52 r 10(1)(b) of the Federal Court Rules. 10 On 18 March 2004, the applicant filed a further application. This was for leave to appeal. Although not accompanied by an affidavit setting out the grounds of that application, it was accompanied by an amended notice of appeal. This amended notice of appeal was in purported compliance with an order made at the callover on 10 February 2004. 11 Before the Court today, the applicant explained that he did not appear before his Honour, the primary judge, on 22 December because he mistook the date, and in fact, attended the Court on 23 December, when of course the matter was not in the list. 12 In any event, one of the issues relevant to whether an extension of time and leave to appeal should be granted is the strength or otherwise of the applicant's case: see Applicant S442 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 28 at [8]; and when this case is considered it is clear that the applicant has not demonstrated that any injustice would result from his application for leave to extend time or leave to appeal being refused. 13 The applicant's application for a protection visa was based on his claim that he faced a real chance of persecution on return to Sri Lanka for two reasons: · first, he was a United National Party ('UNP') supporter who had been threatened by People's Alliance ('PA') supporters and could not access state protection against those threats; and · second, the Sri Lankan authorities knew that he had financially supported the Liberation Tigers of Tamil Eelam ('LTTE'). 14 The RRT found, however, that the applicant was not consistent in his description of the events that had occurred in Sri Lanka, which gave rise to these two claims. The Tribunal noted that 'the Applicant has made a number of claims at different times in the process of applying for refugee status' and then set out in detail the claims which he made at different stages of his application. From this it is apparent that the applicant's claims to refugee status on the ground of political opinion varied significantly between his initial written claims, the claims he made during his interview with the Department and the claims he made at the RRT hearing. While both claims were put forward in his initial written claims, he only claimed persecution as a result of his financial support of the LTTE in his interview with the Department. At the RRT, conversely, the applicant first stated and repeatedly confirmed that his only claim was that the Sri Lankan security forces would mistreat him because of his connection to the UNP. It was only after the RRT adjourned the hearing to give the applicant an opportunity to consult with his lawyer that he again claimed that his fears were also based on his connections to the LTTE. 15 The RRT also found there to be a number of other inconsistencies in his evidence and between his evidence and that of his wife. These included the issue of when he had contacted the police about the threatening phone calls, whether such calls were of a political nature, the attitude of the police towards him, the manner in which he had begun his financial contributions to the LTTE and the content of a letter from the Human Rights Centre in comparison to the complaints he claimed to have made to the Centre. 16 In coming to its decision to affirm the delegate of the respondent's decision, the RRT said: '[The RRT] has had regard to the general human rights situation in Sri Lanka, to reports of the situation of people with [the Applicant's] characteristics in Sri Lanka, and to [the Applicant's] particular experiences and overall credibility… The Applicant husband's claims made at different stages of the status determination process raise serious issues of his credibility. In assessing the reliability of his evidence the Tribunal has considered the consistency of his claims over time, the consistency of his evidence with that of his wife, his overall demeanour and the inherent plausibility of his claims having regard to reliable country information about the political and social situation in Sri Lanka… Threats from PA Supporters and Access to State Protection … Having regard to the inconsistencies in the evidence, the vague, hesitant and confused manner in which he gave his evidence and the inherent implausibility of these claims, the Tribunal has a positive state of disbelief that the Applicant was refused state protection in relation to politically motivated threats to himself or members of his family. Accordingly as the Tribunal is not satisfied that the Applicant sought and was refused assistance from the police, it is not satisfied that he has been refused the protection of the state against the claimed threats… The Applicant's Support for the LTTE … Having regard to the inconsistencies in the Applicant's own evidence, to the inconsistencies between his evidence and that of his wife, to the failure of the Human Rights Centre to mention this issue in its statement of January 1996 and to its inherent implausibility, the Tribunal has a positive state of disbelief that the authorities have found an LTTE pamphlet in the Applicant's home and that they suspect him of being an LTTE supporter. The Applicant left Sri Lanka legally, he was not arrested, or charged with any offence. This history is consistent with the findings above that the authorities do not suspect him of having any connection to the LTTE. As he is a respectable businessman and he is not a suspected LTTE supporter, the Tribunal is satisfied that there is no more than a remote chance that the authorities would mistreat him on his return to Sri Lanka.' 17 At first instance in this Court, the applicant alleged that: 'In making its decision, the Tribunal failed to observe or breached procedural fairness in that it made no reference to the US State Department Annual Report on Human Rights 1996 which was relied upon by the delegate of DIMIA. That by its lack of reference, I assume that it was not read by the Tribunal. I say there was some favourable information in that report to support my case. Procedural fairness requires that I be given a reasonable opportunity to present a case that I am a refugee as defined in the Convention relating to the Status of Refugees done at New York on 31 January 1967 ("the Refugee Convention") and to answer any material or information in the possession of the Tribunal which suggests otherwise.' 18 This contention is unfounded. The applicant was given a hearing at which it is apparent he was given the opportunity to present his case. This included an adjournment during the hearing, in which he was given an opportunity to consult with his lawyer. In addition, the failure of the RRT to refer specifically to the US State Department Annual Report on Human Rights, without more, cannot lead to the assumption that the RRT failed to take it into account: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47]. Indeed the RRT expressly stated at the commencement of its reasons for decision: 'In making its decision the Tribunal considered the following: * the evidence given at the hearing * all of the materials contained in the Tribunal's file and the Department's file * the submissions made by the Applicant's adviser in support of the application.' 19 In support of his present application, the applicant submits: 'The Tribunal failed to observe or breached procedural fairness when they make the decision and only relied upon newspaper reports, DFAT cables, amnesty international reports relating the ethnic conflict in Sri Lanka and the treatments of Tamil. The Tribunal has relied upon this information without giving me an opportunity to respond to those materials. His Honour also failed to consider my case properly and refused my application. I believe that the decision made by the Honour is not reasonable. Further, I believe that my case for Refugee status in Australia within convention reasons.' 20 In his written submission, the applicant submits that if the Tribunal had given him an opportunity to respond to the materials relied upon he would have made further submissions to the Tribunal. These submissions, he says, would have highlighted the parts of those documents which assisted his case and challenged the correctness or significance of those documents which were adverse to his case. He claims he would have also placed additional evidence in support of his claims before the Tribunal. 21 Putting aside, the inconsistency between the applicant's initial argument that the RRT failed to take into account material containing general country information and his current argument that the RRT failed to accord him procedural fairness in relying on such general country information without giving him the opportunity to respond to it, this argument cannot succeed without some evidence as to the specific documents which the RRT supposedly relied upon without given the applicant an opportunity to respond. Before the Court today, the applicant was again asked if he could identify any specific materials, and he has not done so. It appears that he has simply not been able to identify any such materials. 22 Further, while Muin v Refugee Review Tribunal (2002) 190 ALR 601 establishes that the RRT must put the substance of any adverse material that it intends to rely on to an applicant, this is not a requirement that all the documents relied upon be provided to the applicant: see Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 631 [122]) per McHugh J. The applicant would therefore need to provide at least some evidence, or some basis for concluding, that the RRT had not disclosed the substance of any adverse material that it relied upon to him. 23 In any event, in this case the RRT's decision rested primarily on its assessment of the applicant's credibility and not on 'newspaper reports, DFAT cables, amnesty international reports relating the ethnic conflict in Sri Lanka and the treatments of Tamil' as the applicant claims.