Applicant A236 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1439

FEDERAL COURT OF AUSTRALIA

Applicant A236 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1439 APPLICANT A236 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS S200 OF 2003 EMMETT J 14 NOVEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY S200 OF 2003

BETWEEN: APPLICANT A236 OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MEMBER REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 14 NOVEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the two notices of motion fixed for hearing today be dismissed; 2. the applicant pay the first respondent's costs of the motions. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY S200 OF 2003

BETWEEN: APPLICANT A236 OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MEMBER REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: EMMETT J

DATE: 14 NOVEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Sri Lanka. He last arrived in Australia as a visitor in November 1998 and applied for a protection (class XA) visa under the Migration Act 1958 (Cth) ('the Act') on 26 November 1999. On 30 March 2000, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused the application for a protection visa and, on 9 May 2000, the applicant lodged an application with the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. On 3 October 2001, the Tribunal affirmed the decision not to grant a protection visa. 2 On 8 October 2002, a draft order nisi and affidavit in support were filed in the High Court of Australia seeking prerogative writ relief in respect of the Tribunal's decision. On 7 February 2003, Hayne J ordered that the proceeding be remitted to the Federal Court. The matter was remitted to the South Australia District Registry of the Court. 3 On 26 May 2003, von Doussa J ordered that, if an extension if time within which to commence the proceeding is required, the applicant file and serve, by 3 July 2003, a notice of motion seeking an extension of time together with an affidavit by the applicant personally explaining the reasons for the delay. The applicant was also required to file and serve an amended application and submissions. On 18 July 2003, Selway J varied those orders by requiring the steps to be taken within 28 days of that date rather than by 3 July 2003. His Honour also ordered that the matter be transferred to the New South Wales District Registry of the Court. 4 The matter came before me on 19 September 2003, when there was no appearance of the applicant. I therefore ordered that the applicant be dismissed pursuant to O 10 r 3(2) of the Federal Court Rules. However, I directed that the Minister inform the applicant as soon as practicable of the terms of O 35 r 7(2)(a): see Applicant A236 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1157. On 23 September 2003, the applicant filed a notice of motion seeking orders that the order for dismissal be set aside. Subsequently, on 10 November 2003, the applicant filed a further notice of motion seeking declarations that the Minister is not entitled to argue that the initial application was out of time. That second motion was supported by an affidavit of the applicant alleging, in effect, that officers of the Minister's department told him that he did not have to commence any proceedings by a particular time. 5 The two motions are before me today for hearing. The solicitor for the Minister has indicated that there is a dispute as to the allegations said to give rise to an explanation by the applicant for the failure to commence proceedings in time. However, before considering that question, the first issue is whether there is any possible substance in the application for prerogative writ relief in respect of the Tribunal's decision. The decision having been given on 3 October 2001, relief would be precluded by s 474 of the Act if the decision of the Tribunal is a privative clause decision within the meaning of s 474(2). It would be such a decision if it was a decision of an administrative character made under the Act. It certainly purports to be such a decision. The question, though, is whether the decision was infected in any way by jurisdictional error, such that it could be concluded that there was no decision made under the Act. 6 In an application for an order for review filed in the court on 12 August 2003, the applicant alleges several grounds as follows: (1) a breach of the rules of natural justice occurred in connection with the making of the decision. The particulars refer to reliance by the Tribunal on '25 extrinsic documents'; (2) the procedure that was required by law to be observed in connection with the making of the decision was not observed. The particulars refer to alleged contravention of s 424A(1) of the Act; (3) the decision involved an error of law. The particulars assert that the Tribunal failed to give adequate weight to the applicant's sworn evidence and gave excessive weight to unreliable evidence of no great importance; (4) the Tribunal ignored crucial evidence, in particular, the fact that the applicant's cousin's brother was shot dead by mistake instead of the applicant. 7 All of the grounds raise matters that go to the merits of the decision of the Tribunal, which are not subject to review in this Court. The one exception is the possible reliance on denial of procedural fairness. The only denial of procedural fairness adverted to on behalf of the applicant is the failure to comply with s 424A(1) of the Act. That section requires that, subject to s 424A(3), the Tribunal must give to an applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. 8 However, under s 424A(3)(a), the section does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or the other person is a member. The only documents identified in the particulars, and in the affidavit sworn in support of the application, are documents that are clearly within the category described in s 424A(3)(a). That is to say, they are documents generally describing conditions in Sri Lanka. In any event, the Minister asserts that the substance of those matters was put to the applicant in the course of the hearing before the Tribunal. I have not investigated that question. 9 While it is possible that there was a denial of procedural fairness, even though there was no breach of s 424A, the particulars of procedural unfairness alleged would not, in my view, constitute jurisdictional error. The only particulars are that the evidence contained in the extrinsic documents was not reliable and was unsworn while the evidence given by the applicant was under oath. It is also asserted that the evidence or information contained in the documents was not specific to the applicant's case. In the absence of anything further, that does not appear to me to constitute jurisdictional error. 10 The Tribunal's reasons were extensive. The Tribunal characterised the applicant's evidence as confused. The Tribunal found that the applicant appeared vague as to the details of the peace process with the Liberation Tigers of Tamil Eelam ('LTTE'), in which he claims to have taken part, thereby gaining a profile as a peace negotiator. He said that as soon as the People's Alliance had come to power, it had announced a truce with the LTTE. However, the Tribunal put to him that the parliamentary election which brought the People's Alliance to power was in August 1994 and the truce with the LTTE only began in January 1995. 11 The applicant suggested that those matters had not been public, but when the Tribunal put to him that it was a matter of public knowledge that the peace negotiations with the LTTE had begun in Jaffna in October 1994, he said that he had problems remembering dates and that the events had occurred seven years before. The Tribunal observed that, even accepting that the applicant was involved with the peace process initiated by the People's Alliance government in some capacity and that he was also involved in organising concerts or shows in support of Professor Peiris' devolution package over a period of five or six months in 1995, it did not accept that the applicant had a well-founded fear of persecution by reason of this involvement if he returned to Sri Lanka now or in the reasonably foreseeable future. 12 At the hearing before the Tribunal, the applicant said that he claimed that, when he had arrived back in Sri Lanka in June 1998, he had telephoned his mother from the airport and she had told him that it was too dangerous for him to return to his home in Polgahawela. Nevertheless, the applicant remained in Sri Lanka for a further four months, although he already had a visa to travel to Australia. He said, at the hearing before the Tribunal, that he had remained in hiding, observing what was going to happen. He conceded, however, that, during that time, he obtained a visa to travel to the United States of America. The applicant confirmed that, even after returning to Australia from the United States in November 1998, he had not made an application for protection visa until a year later. In fact, he applied initially for a student visa and it was only after that application was refused that he applied for a protection visa. 13 The Tribunal considered that it was legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution. The Tribunal considered that the applicant's behaviour, the fact that he returned to Sri Lanka in June 1998, that he remained there for four months and that, even after visiting the United States and returning to Australia, he waited for another year before applying for a protection visa, all suggest that he does not, in fact, have a subjective fear of being persecuted if he returns to Sri Lanka. 14 The Tribunal considered that it was fanciful that the applicant would be pursued in 2000 by army deserters or rogue elements in the armed forces by reason of his participation in the peace process as initiated by the People's Alliance government in Sri Lanka in 1995, as he claimed. The Tribunal observed that organisations far more prominent than the applicant's organisation, which were involved in the peace process, had not been threatened in that way. Moreover, the Tribunal considered that it would be absurd to suggest that the People's Alliance government, which at that time remained in power in Sri Lanka, would encourage or condone such victimisation of people involved in the peace process that it had initiated. 15 The Tribunal considered that there was nothing in the evidence before it to suggest that the Sri Lankan government would not extend to the applicant the same degree of protection as it would accord to any of its own or other nationals. Even if the Tribunal were to accept that the Sri Lankan government could not provide the applicant with a sufficient level of protection to remove a real chance of persecution if he were to return to his family home, the Tribunal considered that it would be reasonable to expect him to relocate to the Colombo area, where he lived and worked before joining his first ship in 1994 and, again, from December 1994 until very shortly before he joined his last ship in April 1998. 16 The Tribunal considered there was nothing in the evidence to suggest that law and order had collapsed in Colombo or that the Sri Lankan government was unable to protect its citizens from armed deserters, as the applicant claimed. The Tribunal considered that the Sri Lankan government would be able to provide the applicant with the level of protection in Colombo sufficient to remove a real chance of his being persecuted by army deserters. Those conclusions are clearly based on assessment of the evidence before the Tribunal. 17 There is no evidence in the applicant's affidavits that have been filed hitherto to suggest that there was any denial of procedural fairness on the part of the Tribunal. I consider that there is no prospect on the material before me that the application could succeed if I were to accede to the application now made to set aside my earlier orders. Accordingly, I propose to dismiss the motions with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.