Applicant M118 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 792

FEDERAL COURT OF AUSTRALIA

Applicant M118 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 792 MIGRATION - application for protection visa - appeal from decision of Refugee Review Tribunal - refusal of adjournment of hearing - application for extension of time to bring application - Refugee Review Tribunal's findings on credibility - whether any error of law. Migration Act 1958 (Cth) High Court Rules O 55 r 17 Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601 Applicant S422 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 89

APPLICANT M118 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No V713 of 2003 KIEFEL J 21 JUNE 2004 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY V713 OF 2003

ON APPEAL FROM A DECISION OF THE REFUGEE REVIEW TRIBUNAL

BETWEEN: APPLICANT M118 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: KIEFEL J

DATE OF ORDER: 21 JUNE 2004

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The time within which this application be brought be extended to 21 May 2003. 2. The application be dismissed. 3. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY V713 OF 2003

ON APPEAL FROM A DECISION OF THE REFUGEE REVIEW TRIBUNAL

BETWEEN: APPLICANT M118 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: KIEFEL J

DATE: 21 JUNE 2004

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The applicant is a citizen of India. He arrived in Australia on 24 March 1994. On 5 February 1998, he lodged an application for a protection visa under the Migration Act 1958 (Cth) ("the Act"). On 28 April 1998, the Minister's delegate determined that the applicant was not a person to whom Australia has protection obligations and refused the grant of the visa. On 18 February 2000, the Refugee Review Tribunal ("the Tribunal") affirmed that decision. 2 The applicant seeks an adjournment of this hearing for some few months to enable him to better present his case and seek legal assistance from within his community. It is not apparent to me why he has not already done so. The application for an order nisi was filed on 21 May 2003 following judgment in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601 ("Muin and Lee"). Grounds were provided in the applicant's application for an order nisi, and he says he was assisted by others to put them in. He discussed the grounds with those who assisted him. Written submissions were filed on his behalf on 6 May 2004, again with some assistance. There does not seem to me to be any basis, in relation to the preparation of his case, for an adjournment. Another factor which might militate against the grant of an adjournment is if the applicant's case were futile. 3 The applicant also needs an extension of time for the bringing of the application. His application for an order nisi for certiorari was not brought within six months from the date of the Tribunal's decision, as O 55, r 17 of the High Court Rules require. The reason he and others did not file their applications within time would appear to be that they were awaiting the High Court's decision in Muin and Lie. 4 Accepting for present purposes that the remitter of the application for an order nisi encompasses an application for extension of time, a matter about which some doubt has been raised - see Applicant S422 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 89, it seems to me appropriate to grant an extension. 5 Before the Tribunal the applicant said that he was a strong supporter of the Tamil Tigers, or the LTTE (Liberation Tigers of Tamil Eelam), in Sri Lanka. The ethnic problem between the Tamils and the Sinhalese flared up in 1983. He was residing in Madras but provided support to Tamil refugees. In 1990, the problem again emerged, and he contributed money on this occasion and attended rallies. He was known as a supporter. Following the assassination of Prime Minister Gandhi in 1991, thought to be attributable to the LTTE or the DMK, of which he was also a member, the Indian Government sought out DMK members and some LTTE supporters whom it detained and did not release. The applicant said that there were stories of torture and disappearances. He went into hiding and heard that a number of supporters had been arrested. He was also suspected by the LTTE of having provided information to the government. He was afraid for his safety and made arrangements to leave India in March 1994. After he left, his family continued to receive threats. 6 The Tribunal did not find the applicant to be a credible witness. In particular, he could not explain the delay of four years in applying for a protection visa. He had been in contact with the Department of Immigration in 1996 and had himself received legal advice with respect to his attempts to remain in Australia. The Tribunal considered that the applicant was motivated to exaggerate his claims consciously or unconsciously. 7 Although it doubted the applicant's claim, the Tribunal accepted that he was an LTTE supporter and that after the 1991 assassination some supporters and members of the DMK were investigated. Some persons were arrested as being suspected terrorists. It accepted that he had changed his residence because he believed he might be questioned by the Indian authorities. It did not accept that anyone was in fact seeking him out. The likelihood was that the authorities did not know of his support or he was of no real interest to them. The Tribunal also noted that he was working at a hotel in New Delhi from July 1988 to March 1994 and the authorities could have easily found him. He said at the hearing that no one had sought him out for two years. 8 The Tribunal did not accept that the LTTE were pursuing him either. The claims, first made four years after coming to Australia, were not considered credible and were considered to be recent inventions. 9 Apart from the general list of grounds for judicial review, which are wholly unparticularised, the applicant relied, in his application for an order nisi, on breaches of procedural fairness and of a failure to follow the procedures required by the Act, and he said that the Tribunal asked itself the wrong question or misconceived its duty. 10 The first particular of denial of procedural fairness was that he was not given a reasonable opportunity to present his case. The second is combined with the alleged failure to follow procedures. In that regard, it is said that the Tribunal failed to give him information which it considered to be a reason for affirming the decision under review. The third ground was not explained in the application documents. 11 In his written submissions the applicant said that the Tribunal did not afford him procedural fairness because it did not refer to the DFAT cables that the delegate had referred to concerning Indians who were LTTE supporters. He infers that the Tribunal had not read them. If he had known this, he would have made further submissions to the Tribunal and placed additional materials and evidence before it. At the hearing, however, the applicant was unable to advance this ground. In any event, there would not appear to me to be any substance to it. 12 The cables say only that, following the assassination of the Prime Minister in 1991, the authorities were searching for some supporters. The delegate did not consider that there was anything to suggest that they were actually looking for him. Even if the Tribunal did not look at the cable or the delegate's description of it, it has clearly accepted that the authorities were looking for supporters and it came to the same view as the delegate. Nothing then turns upon it, not having referred to the cable in its reasons. 13 At the hearing, the applicant raised some further points. The first was that a relevant factor was some change in legislation in India some two years ago. The Tribunal could hardly have dealt with this as evidence, however, since it heard his matter four years ago. He also said that he had no time to prepare his case before the Tribunal, but it appeared that he had in fact had some few months notice of it. He asserted generally that he was unable to put his case at the hearing. It appears that, by this contention, he means not that he was prevented from putting his case, but rather that he was not asked what he referred to as the important questions. The only one which was identified related to his fear of arrest. 14 It is apparent from the Tribunal's reasons, and the extracts it sets out from his application for a protection visa, that it understood the basis of his fears, and it asked further questions about them. It may be that the applicant also thinks that the Tribunal should have approached questions in a way somehow favourable to his case. If this was possible, there is no such obligation on the Tribunal. There is nothing which suggests to me that there was a denial of procedural fairness. 15 The other grounds identified in the application and written submissions were not pursued. There is nothing in them in any event. There is nothing to suggested that he was denied an opportunity to present his case, as I have said. The Tribunal was not obliged to forewarn him of its views. The Tribunal did not misdirect itself. 16 The application should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.