FEDERAL COURT OF AUSTRALIA Applicant A168/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 860 MIGRATION – application under s 39B Judiciary Act 1903 (Cth) – reliance in Tribunal's reasons upon an event which post-dated hearing – information used had adverse impact on applicant – no opportunity for applicant to comment on matter or to make submissions as to its significance for applicant's case. Judiciary Act 1903 (Cth), s 39B Applicant A74/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 696 referred to Applicant A56/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 715 referred to Applicant A134 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 717 referred to Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited Kioa v West (1985) 159 CLR 550 followed David v Minister for Immigration and Ethnic Affairs [1995] FCA 807 distinguished APPLICANT A168/2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, ADOLFO GENTILE MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL S147 of 2003 FINN J 21 AUGUST 2003 CANBERRA (HEARD IN ADELAIDE) IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S147 OF 2003 BETWEEN: APPLICANT A168/2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT ADOLFO GENTILE, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: FINN J DATE OF ORDER: 21 AUGUST 2003 WHERE MADE: CANBERRA (HEARD IN ADELAIDE) THE COURT ORDERS THAT: 1. A writ of prohibition be directed to the first respondent prohibiting him from further proceeding upon the decision of the second respondent. 2. A writ of certiorari be directed to the second respondent quashing the decision. 3. A writ of mandamus be directed to the third respondent to have the Refugee Review Tribunal rehear and redetermine the application. 4. The first respondent pay the applicant's costs of the application. 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 S147 OF 2003 BETWEEN: APPLICANT A168/2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT ADOLFO GENTILE, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: FINN J DATE: 21 AUGUST 2003 PLACE: CANBERRA (HEARD IN ADELAIDE) REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa to the applicant. It raises a narrow issue which must be decided favourably to the applicant. In its reasons for decision the Tribunal relied upon an event which post-dated the hearing on the decision under review and to which it attributed a particular significance but without giving the applicant the opportunity to comment on the matter. The claim made in the application is that the information so used was adverse to the applicant and was significant to the decision made, though for reasons different to those inferred by the Tribunal. Procedural fairness required that it be put to the applicant and the failure to do so was a denial of procedural fairness. Factual Setting and the Tribunal's Decision 2 It is sufficient for present purposes to quote from parts of the Tribunal's reasons and to paraphrase other parts. 3 First the applicant's own circumstances and claims were described in the following terms: "The applicant is a 43 year old female citizen of Sri Lanka of Sinhalese ethnicity and Buddhist religion. She travelled to Australia as indicated above on a Tourist (short stay) visa. The essence of her claims is that she fears persecution at the hands of the People's Alliance ["PA"] government because of her support for the United National Party (UNP). The Tribunal accepts that the applicant's house was attacked and her car damaged around the 1994 general elections, because of her parents and her involvement in the UNP as claimed. The Tribunal consider this to be part of generalised behaviour around election time (see Country information below). The Tribunal accepts that the applicant is involved with the UNP as a supporter and that she has taken some role in the Women's front at her village level as she indicated at the hearing. The Tribunal accepts that she gave money to the UNP. In her initial claims the applicant indicated that her husband "has no interest in politics and has not supported any political parties in Sri Lanka", however at the hearing the applicant indicated that her husband is a member of the UNP, he gives financial assistance but does not claim to be a full-time supporter of the UNP like the applicant. The Tribunal notes that her husband remains in Sri Lanka and the applicant has not reported any incidents relating to him since she has been in Australia even though he is a member and supporter of the UNP. The applicant claims to have been threatened at the beginning of April 1999 by two persons on motorcycles. The Tribunal finds this claim implausible; the applicant did not provide any reason why this threat would have been made at this particular time and the fact that the applicant decided to leave after this incident does not sit well with her other statements about the way she treated previous threats, where she said that she did not take the threats seriously." 4 From country information dealing primarily with conditions within Sri Lanka between 1994 and early 2001, the Tribunal reached a number of conclusions that can be expressed in the following propositions. "The Sri Lankan Government generally respects the human rights of its citizens in areas not affected by the conflict with the LTTE." I would note in passing that Tamil conflict has no bearing on the present matter. "Available information confirms that violence continues to be pervasive in Sri Lanka, that there are still human rights abuses and police may sometimes act with impunity. Among the acts of violence are some that are politically motivated, including some incidents that have been directed at former UNP politicians and members of that party." … "Political violence takes place around election time. Where political violence takes place other than at election time, it will be in retaliation for events that took place during an election." … "Claims of political harassment of UNP members and supporters should be viewed with some scepticism. There may be individual cases of political rivalries leading to violence, but all parties have equal access to the law and to police protection." 5 Having referred to US, UK and DFAT sources and after noting their similarity, the Tribunal observed: "The available information makes it clear that political violence is not perpetrated only by the PA but also by other parties, including the UNP, and occurs around the time of elections or other significant campaigns. It is directed at groups of people rather than individuals, unless the latter happen to be high-profile members such as politicians or other leaders." 6 The Tribunal then characterised the applicant in the following way: "The Tribunal is not satisfied that the applicant has a high profile. The Tribunal regards the applicant as a loyal supporter of the UNP, not as someone with a high profile in the party." 7 The clear intendment of this finding in its setting, if I might interpolate, was that the applicant's potential exposure to political violence was only as a group supporter of the UNP and not as an individual. 8 The Tribunal then turned to the future and said: "In considering the future prospects of harm the Tribunal notes the following aspects of the applicant's story. She claims to have been persecuted as a member of the party since at least 1994, she travelled to India, Singapore and Malaysia in 1998 yet she does not report any attempt to seek protection in these countries; she came to Australia in March 1999 and returned to Sri Lanka without seeking protection then; given these events the Tribunal considers that the applicant's subjective fear has been exaggerated in her PV application. The Tribunal also notes that in the last elections in December 2001, the UNP regained power (BBC News – http//news.bbc.co.uk/world/south-asia/ - 9 December 2001) and has formed a government in a coalition with the Muslim Congress. Because of the general modus operandi of politics in Sri Lanka, as evidenced by the information quoted above, the applicant's political allegiances now favour her, thus making the prospect of suffering harm for her support of the UNP even more remote. Taking into consideration all of the available evidence, the Tribunal is not satisfied that there is a real chance the applicant will be persecuted for reasons of her political opinion, in the reasonably foreseeable future, should she return to Sri Lanka; thus the Tribunal finds that her fear of persecution for any convention reason is not well founded." 9 The paragraph highlighted above contains the adverse information on which this application is based. 10 Before turning to the substance of the BBC material to which reference was made I need to note the following. (a) The decision of the Minister's delegate that was affirmed by the Tribunal was made on 7 April 2000. (b) After the applicant had applied to the Tribunal to have the delegate's decision reviewed, the Tribunal wrote to the Applicant on 26 April 2000 concerning its review processes. That letter contained the following (on which, as will be seen, the Minister relies): "If there is any change in your circumstances that may affect your application, please tell the Tribunal in writing immediately." (c) On 9 August 2001 the applicant was notified that the Tribunal's hearing would be held on 12 September 2001 and that if she had any new documents or written arguments she should send them to the Tribunal with her response to the invitation to attend the hearing. (d) The hearing was held as scheduled. The election to which the Tribunal referred occurred on 9 December 2001. The Tribunal gave its decision on 5 February 2002. The Undisclosed Information and the Applicant's Evidence 11 I will set out in full the text of the BBC report (omitting pictorial and graphic matter): "Ranil Wickramasinghe has taken office as Sri Lanka's new prime minister after his opposition United National Party swept to victory in parliamentary elections last week. Mr Wickramasinghe was sworn in by his arch-rival, President Chandrika Kumaratunga, whose People's Alliance (PA) suffered a sharp setback in Wednesday's vote. The new prime minister said he plans to hold discussions with other political parties on forming a government of national unity. "We have some very serious problems facing the country. We can overcome them and go forward," Mr Wickramasinghe said. His emergence as prime minister marks the start of a potentially uncomfortable period of cohabitation between a powerful president and a hostile parliament. The swearing-in ceremony was not shown on state television, which is controlled by the president. And a television station owned by Mr Wickramasinghe's brother was reportedly banned from entering the president's residence to film the event. Indian Prime Minister Atal Behari Vajpayee, a personal friend of Mr Wickramasinghe, was one of the first leaders to congratulate the new prime minister on Sunday. Pledges for peace Despite winning the biggest number of seats, Mr Wickramasinghe's UNP has had to form an alliance with a Sri Lankan Muslim Congress to ensure a majority in the house. Correspondents say he is also expected to receive the backing of the Tamil parties, who are hoping he will launch a new round of negotiations with rebels fighting for a separate homeland in the north and east. Pledges to find a peaceful political settlement for the ethnic conflict, which has claimed more than 60,000 lives since 1972, formed a key part of Mr Wickramasinghe's election campaign. President Kumaratunga has preferred to pursue an aggressive military solution to the ongoing civil war. Although the PA has become the weakest opposition party in the country's recent history, President Kumaratunga will continue to wield substantial powers – including the right to name a cabinet and even suspend parliament. Bloody election Mr Wickramasinghe, who has previously served briefly as prime minister, made history by winning the largest number of preferential votes ever – more than 400,000 in his constituency. But the vote itself was marred by violence and allegations of corruption. Police have now lifted a curfew that was imposed after Wednesday's election – one of the most violent in Sri Lanka's history. Crowds rioted in the central town of Kandy in protest against the deaths of 10 Muslims on polling day. The army also prevented tens of thousands of minority Tamil voters from travelling out of rebel-controlled areas to cast their votes. At least 60 people died during the campaign and on election day." 12 The applicant swore two affidavits. The first was of a thoroughly unhelpful boilerplate variety commonly employed by migration agents and for the deficiencies of which I acquit the applicant (though not her advisers) of any responsibility: see Applicant A74/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 696; Applicant A56/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 715; Applicant A134/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 717. Mirroring the amended application, it made Muin type allegations without identifying any factual substratum capable of supporting those allegations: see Muin v Refugee Review Tribunal (2002) 190 ALR 601. 13 Her second affidavit did descend into evidence. It referred to the paragraph in the Tribunal's reasons highlighted earlier which referred to the BBC report and characterised it as being adverse to her claim given the manner of its use by the Tribunal. 14 The applicant noted, further, that: "6. The material was also significant in that it provided evidence of a change in circumstances in relation to the National Government in Sri Lanka which occurred after the date of the Tribunal Hearing. … 9. Had I been aware that this adverse material would be taken into account by the Tribunal prior to the making of the Tribunal's decision, I would have taken the following steps: 9.1 I would have given additional oral evidence to the Tribunal to the effect that even though the United National Party had regained power after 7 years, I would still be at risk of attack from my political opponents in the Peoples' Alliance and that my stated fear of persecution was still reasonable as of 9 December 2001. 9.2 I would have made written submissions to the Tribunal to the effect that notwithstanding that the United National Party had regained power I would still be at risk of persecution. 9.3 I would have submitted the following documents to the Tribunal to the effect that notwithstanding that the United National Party had regained power I would still be at risk and there was still a real chance of me being persecuted. Now produced and shown to me marked "MMKA 2" are four news items showing that although the UNP regained power in December 2001, violence against UNP activists continued after the elections. 10. Although the general election was won by the UNP in December 2001 the presidential office and presidential power was still with the Peoples Alliance Party as Chandrika Bandaranaike Kumaranatunga was still serving as the President of the Democratic Socialist Republic of Sri Lanka. The Peoples Alliance Party had held government and the Presidency from 1994 until December 2001 and continued to hold the Presidency after the elections in December 2001. This dichotomy of power resulted in the violence against each other not abating after the elections in 2001 and violence against UNP supporters and activists continued." Emphasis added. The four news items referred to were dated between 11 and 13 December 2001. Contentions and Conclusions 15 It is common ground between the parties that the guiding principle in a case such as the present is that "an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made": Kioa v West (1985) 159 CLR 550 at 629. 16 The respondent Minister's contention is that, having found that the applicant was not a "high profile" UNP member, the question before the Tribunal was whether the Sri Lankan government could provide effective protection to her. Having regard to the findings made about the protection available to UNP supporters in Sri Lanka, notwithstanding the incidence of political violence, the information as to the change of government was not significant to the decision made. It added nothing and was in that sense irrelevant to the decision. Further the electoral result was known to the applicant and if it had the significance that she suggests she should have notified this to the Tribunal as the letter of 26 April 2000 stipulated. 17 The applicant's case was that while the Tribunal attributed a particular significance to the electoral result, that result produced a quite different configuration between the two principal parties in relation to the exercise of governmental power in Sri Lanka from that which was obtained between 1994 and 2001 upon which the country information dealing with effective protection was based. As the report indicated, power was now divided between "a powerful [PA] president and a hostile [UNP] parliament". It was this, not the electoral victory of the UNP, that would be significant in determining the future of effective protection for UNP supporters. The Tribunal misapprehended the significance of the electoral change. By treating it as it did, it denied the applicant the opportunity to explain that the change was not adverse to her application but rather could be shown to be favourable to her case. 18 The suggestion that it was the applicant's responsibility to raise the significance of the electoral change some months after the review hearing had finished misapprehended the relative responsibilities of the parties in the circumstances. 19 In supplementary submissions both parties acknowledged that a like "dichotomy of power" occurred between August and November 1994 during which the UNP retained the presidency but the PA held government. In November 1994 the PA candidate was elected president. The applicant, further, has emphasised that the Tribunal accepted that the applicant's house was attacked and her car damaged around the 1994 election, because of her parents and her involvement in the UNP. 20 It is, in my view, quite understandable why the Tribunal drew from the BBC news report the conclusion that it did. That report seemingly was confirmatory of the correctness of the conclusion towards which the Tribunal was otherwise moving: contrast David v Minister for Immigration and Ethnic Affairs [1995] FCA 807. Nonetheless the change of government was an event which post-dated the hearing. The Tribunal attributed a particular significance to the event and one that was adverse to the applicant's case. 21 Though I consider the matter to be a borderline one – the more so because it may well be said that the material relied upon by the applicant is consistent simply with the country information accepted by the Tribunal – I am not satisfied that the applicant is simply acting opportunistically or unreasonably in the circumstances. I am satisfied that she should have been given the opportunity to submit evidence and make submissions to demonstrate an alternative view of the significance of the change of government. I am not prepared to conclude that the event was not significant or relevant to the decision to be taken even though it may be found ultimately to have created an apprehension that proved, or was likely to be, baseless. 22 I will make orders by way of relief that a writ of prohibition be directed to the first respondent prohibiting him from further proceeding upon the decision of the second respondent; a writ of certiorari be directed to the second respondent quashing the decision; a writ of mandamus be directed to the third respondent to have the Refugee Review Tribunal rehear and redetermine the application; and that the first respondent pay the applicant's costs of the application. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 19 August 2003 Counsel for the Applicant: S Walsh QC Solicitor for the Applicant: M Clisby Counsel for the Respondent: L Leerdam Solicitor for the Respondent: Sparke Helmore Date of Hearing: 22 July 2003 Date of Judgment: 21 August 2003