FEDERAL COURT OF AUSTRALIA SDAC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1482 No question of principle Migration Act 1958 (Cth) ss 424A, 474, 476(1)(a) Schwallie v Minister for Immigration and Multicultural Affairs [2001] FCA 417 cited NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 followed Kioa v West (1985) 159 CLR 550 cited Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited NADD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 275 cited VAAR of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 252 cited Re Minister for Immigration and Multicultural Affairs; ex parte "A" (2002) 185 ALR 489 cited SDAC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No S 75 of 2002 O'LOUGHLIN J ADELAIDE 28 NOVEMBER 2002 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 75 OF 2002 BETWEEN: SDAC APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE OF ORDER: 28 NOVEMBER 2002 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicants pay the respondent's costs which costs are to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 75 OF 2002 BETWEEN: SDAC APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE: 28 NOVEMBER 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicants in these proceedings, citizens of Sri Lanka, are a man, his wife and their daughter. They arrived in Australia on 4 November 1997 and on 29 January 1998, they lodged an application for protection (Class AZ) visas with the Department of Immigration and Multicultural Affairs. That application was unsuccessful. On 13 January 1999, a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refused to grant them the visas that they had sought. On 3 February 1999, the applicants applied to the Refugee Review Tribunal ("the Tribunal") for a review of the Minister's decision. Once more they were unsuccessful. The Tribunal affirmed the Minister's decision on 12 September 2000. 2 The applicants next sought review of the Tribunal's decision by the Federal Court. On this occasion they were successful: Schwallie v Minister for Immigration and Multicultural Affairs [2001] FCA 417. On 11 April 2001, I set aside the decision of the Tribunal and remitted the matter back to the Tribunal to be determined according to law. I had concluded that the Tribunal had not complied with the provisions of s 424A of the Migration Act 1958 (Cth) ("the Act"), in that it had failed to provide a written invitation to the applicants that would have given them the opportunity to comment on material upon which the Tribunal had relied; material which was adverse to their claims. I was of the view that the ground of review in par 476(1)(a) of the Act (as then in force) had been made out. The application was reconsidered by the Tribunal, differently constituted, but, once again, the applicants were unsuccessful. On 21 January 2002 the Tribunal affirmed the decision not to grant the applicants the protection visas that they had sought. Once more, the applicants have applied to this Court to review the most recent decision of the Tribunal. 3 As only the applicant husband had made specific claims under the Refugees Convention, the Tribunal, for convenience, referred to him in its reasons as the applicant. I will do likewise. The applicant's primary claim was that, should he be returned to Sri Lanka, he would fear persecution from members of the Peoples Alliance party ("the PA") for his political opinions because of his membership of the United National Party ("the UNP") and his association with senior members of the UNP. Initially, his association with the UNP was based upon his role as the caterer for the party's functions but later it was because of his employment by a Mr Cooray who was, at one time, a minister in the UNP government. The applicant also claimed that he is now afraid of Mr Cooray. 4 The Tribunal in its reasons, first addressed the issue of the Tamil ethnicity of the applicant's wife. In a carefully structured set of the reasons, the Tribunal considered and rejected the proposition that there was a real chance of the applicant or his wife or his daughter being persecuted because of his wife's alleged Tamil background if they were to be returned to Sri Lanka now or in the reasonably foreseeable future. 5 The Tribunal also dealt with the applicant's classification as a Burgher. As to this, the Tribunal said: "The Tribunal does not accept that given the small number of Burghers remaining in Sri Lanka that they are a significant component of the "entourage of the ruling elite" and that their ethnicity and religion (most are Christians like the applicant) are part of the characteristics which distinguish this purported social group. The Tribunal does not accept that the "entourage of the ruling elite" is a group which shares certain characteristics or elements which unite them and makes them cognisable in Sir Lankan society. It therefore finds that the applicant was not persecuted because he was a member of this particular social group." 6 The Tribunal next considered the question of the applicant's political opinions. Although it was prepared to accept that the husband had joined the UNP in 1990 and that, up until 1994, he had assisted the party by putting up posters and banners, it did not accept that those activities nor his employment by Mr Coorey gave the applicant a political profile; it did not consider him to be at risk of persecution for reason of his political opinions. The Tribunal went so far as to find that the applicant had fabricated certain of his claims. 7 As I have earlier noted, the Delegate's decision was made on 13 January 1999 and the Tribunal's decision in issue here was made on 21 January 2002. 8 In the amended application for an order of review that was filed in this Court on 5 September 2002, the applicant listed one ground of review only, which was in the following terms: "The Applicant was denied procedural fairness in that he was not made aware of the substance of the documentary information (Country Information) which was received between the time of the Delegate's decision and the Tribunal's decision and which contained adverse material." 9 It was claimed that this documentary information was adverse to the interests of the applicant and that he had been denied the opportunity of answering it. It was submitted that a breach of the common law requirement of procedural fairness constituted jurisdictional error which allowed this Court to intervene. That submission must be rejected. In NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 ("NAAV"), von Doussa J addressed the question of procedural fairness and the provisions of s 474 of the Act. His Honour said at [648]: "… the natural justice requirements of procedural fairness were not met. I agree that the statements made by the Tribunal, and the Tribunal's subsequent use of important documents that were not brought to the attention of NAAV, had the affect (although unintended) of misleading him. However, in my opinion, the rules of procedural fairness have been excluded by s 474. It follows that the Tribunal's decision was lawfully made." In separate judgments, the Chief Justice and Beaumont J agreed with these remarks of von Doussa J. However, and notwithstanding the decision in NAAV, I turn to consider the merits of the present application. 10 In the course of its reasons for its decision, the Tribunal referred to three cables from the Department of Foreign Affairs and Trade ("DFAT"). Counsel for the applicant, Mr Clisby, said that his search of the appeal book failed to reveal any indication that the applicant had been forewarned either formally or informally of the intention of the Tribunal to make reference to these items of material. The cables to which the Tribunal referred were as follows: 1. DFAT cable O.CL 439 of 30 December 1996 (CX20894) 2. DFAT cable CIR No 92/98 of 20 February 1998 (CX29237) 3. DFAT cable CIR No 72/99 of 11 March 1999 (CX34305) 11 As to the first of the those cables, the Tribunal stated that it accepted as accurate the information from DFAT that indicated that there were "almost no incidents of violence" carried out by PA supporters against UNP supporters in the period following the 1994 election. It then quoted the following passage from the first cable, CX20894: "However, during both the August 1994 parliamentary elections and the November 1994 presidential elections, the People's Alliance, led by Chandrika Kumaratunga, campaigned strongly against such criminal links. The 1994 elections, which were monitored by international observers, were regarded as free and fair and there were few incidents of violence, relative to previous elections. There had been some fears that an opposition election victory might lead triumphant PA supporters to avenge violent incidents in the past by engaging in violence against the UNP members and their supporters in the period immediately following the elections, but in the event almost no such incidents occurred. The President has used various platforms to speak out against political violence." 12 As to the second cable, CX29237, the Tribunal said that it noted the following comment by DFAT about Mr Cooray: "Sirisena Cooray was also a powerful minister in the UNP government. He was a close ally of the late President Premadasa. It has been alleged that Cooray was behind some of the political killings during the UNP regime. He has a reputation for corruption." 13 Finally the Tribunal said that it noted the following comment by DFAT from the third cable, CX 34305: "Meanwhile, senior UNP supporters continue to campaign openly and vigorously for election in Sri Lanka. The UNP is still the largest and best-organised political party in Sir Lanka, and some of the most prominent members of the Sri Lankan community are active supporters." 14 The Tribunal went on to say: "The Tribunal finds that the applicant's political profile did not put him at risk of persecution for reason of his political opinion prior to his departure from Sri Lanka." 15 Mason J (as he then was) in Kioa v West (1985) 159 CLR 550 at 587 discussed procedural fairness and the need to give information to an applicant, saying: "In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter …" 16 In Muin v Refugee Review Tribunal [2002] 190 ALR 601 ("Muin") Hayne J discussed the question of procedural fairness, saying at [250]: "The parties have agreed that, in each of the present cases, the Secretary sent to the Registrar the departmental file relating to the plaintiff but did not send any of the Part B documents. Further, facts are agreed from which it would open to infer, in each case, that, neither before the Tribunal conducted its review 'on the papers', nor before it made its decision to affirm the decision refusing to grant a protection visa, did it examine those Part B documents. In each case it is agreed that, if the plaintiff had known that the Tribunal had not considered all the Part B documents to which the Delegate had referred, the plaintiff would have taken various steps to place the information in the Part B documents and submissions about its significance before the Tribunal." 17 That passage from the judgment of Hayne J in Muin was quoted by North, Mansfield and Downes JJ in their joint judgment in NADD of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 275 at [24] ("NADD"). Their Honours noted that each of the elements that constituted the denial of procedural fairness in Muin had been the subject of evidence "all be it by way of an agreed statement of facts": [25]. In dealing with the circumstances that applied in NADD, their Honours went on to say: "In the present appeal, the argument concerning the denial of procedural fairness was not raised before the primary judge. No application has been made to the Full Court by the applicant to rely on further evidence on the appeal. Mr Levet, who appeared as counsel for the applicant, drew attention to the fact that the Delegate's decision indicates that DIMA Country Information Report: CX32164 (7 October 1998) (CX32164) was part of the evidence before him, but the Tribunal decision does not record that this document was before it. However, there was no evidence before this Court of the full text of the CX32164. Further, there is no evidence that the applicant was misled into thinking that the Tribunal had not read the CX32164. And, there is no evidence that the applicant would have taken any different course had he been so misled. In these circumstances, it is impossible for the applicant to succeed in reliance on the Muin decision." 18 VAAR of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 252 was another case in which it was alleged that the decision of the Tribunal was tainted with jurisdictional error because the Tribunal had failed to show certain material to the appellant which was adverse to his claim for a protection visa. That material was said to be: * a departmental submission that the appellant had knowingly participated in a scam to enter Australia as part of a bogus Sri Lankan dance group; and * a photograph of the dance group with its members (one of whom was the applicant) wearing traditional dress and holding traditional instruments. 19 In VAAR the applicant had entered Australia ostensibly as a member of a dance group. However, his sponsor withdrew her sponsorship when she discovered that he was not a bona fide entertainer. As a result, his visa was cancelled and he had been taken into immigration detention. It was contended before the Full Court that, by failing to advise the appellant of the submission and the photo, the Tribunal had denied him procedural fairness. Reliance was placed on the judgment of the High Court in Muin. In Muin, certain material that was adverse to the refugee claimant had been received by the Tribunal after the Delegate's decision but the content of that adverse material had not been communicated to Mr Muin. As a result, he was unable to make a submission about it. The High Court had jurisdiction to deal with the claim of a denial of procedural fairness under s 75(v) of the Constitution – a jurisdiction that was not then available to this Court. At that time, par 476(2)(a) of the Act provided that an application to the Federal Court to review the decision of the Tribunal was not able to include a ground "that a breach of the rules of natural justice occurred in connection with the making of the decision". The Full Court in VAAR found, as a fact, that it was clear that the Tribunal had not taken into account in any adverse way, the appellant's appearance in the group photograph of the supposed dance troupe. It said that the Tribunal had made it clear in its reasons that it had assessed the appellant's claims only by reference to the assertion that he had a well-founded fear of persecution by reason of his political opinion. The members of the Full Court, in their unanimous judgment, went further however. They said at [25]: "In any event if, contrary to our view, the appellant's role in the so-called scam was taken into account, it is unlikely that the RRT erred by failing to give the appellant advance notice of that fact. It should have been obvious to the appellant that the RRT might have regard to his previous visa application in assessing his current application." 20 The Tribunal, in its closing remarks, also made reference to a Reuters briefing note that had not been drawn to the attention of the applicant. The Tribunal said: "As the Tribunal has found that the applicant was not persecuted in the past because he was a member of the UNP and worked for the UNP leadership, it does not accept that there is a real chance that if the applicant were to return to Sri Lanka that he would be persecuted for these reasons in the future. The Tribunal notes that the UNP regained power at the election held on 5 December 2001 (Reuters Business Briefing, 7 December 2001, CX60399). If the applicant were to return to Sri Lanka and decide to resume his membership of the UNP and to actively support the UNP, or even to work again for senior figures in the UNP, the Tribunal finds that he would not be persecuted for reason of his political opinion or a political opinion imputed to him." 21 That Reuters Briefing Note ("CX60399") post-dated the hearing of the application before the Tribunal and was, in a sense, adverse to the applicant's claim because of his earlier support of the UNP. Be that as it may, Dr Perry, counsel for the Minister, submitted that the reference to CX60399 did not make any difference to the applicant's position. She pointed out that there was no evidence before this Court that he would have adduced additional or different evidence or made additional or different submissions if he had known that the Tribunal intended to rely on the contents of CX60399. According to Dr Perry, this position was different from the position in Muin, where it was agreed that "the plaintiff would have taken various steps to place the information in the Part B documents and submissions about its significance before the Tribunal". And as she pointed out, the Full Court in NADD had noted in that case that there was "no evidence that the applicant was misled …". The absence of material was also the subject of comment by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte "A" (2002) 185 ALR 489 at [54] where his Honour said: "Thirdly, the applicant has not placed before this Court a clear indication of the type of evidence or material that he would have placed before the tribunal if he had known of the Country Information made available to it. In default of some indication of the nature of the opportunity which the applicant says he was denied (and the presentation of evidence or material which constitute an arguable case that might result in a different outcome) any omission by the tribunal to disclose the Country Information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in this case." 22 In my opinion, the material that was contained in the three DFAT cables and in the Reuters briefing note can properly be classified, in the language of par 424A(3)(a) of the Act, as information: "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;" As such, s 424A of the Act did not come into operation. There was no obligation on the Tribunal to give to the applicant particulars of the material upon which the Tribunal intended to rely as the reason, or part of the reason, for affirming the decision that was under review. 23 The general nature of the "Country Information" and the failure of the applicant to explain the nature of the evidence or material that he would have placed before the Tribunal if he had known that the Tribunal intended to make use of the contents of the cables and the briefing note leads, inevitably, in my opinion, to the conclusion that this application must be dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 28 November 2002 Counsel for the Applicant: Mr MW Clisby Solicitor for the Applicant: Mr MW Clisby Counsel for the Respondent: Dr MA Perry Solicitor for the Respondent: Sparke and Helmore Date of Hearing: 12 September 2002 Date of Judgment: 28 November 2002