Applicant S1486 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 80

FEDERAL COURT OF AUSTRALIA

Applicant S1486 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 80 APPLICANT S1486 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 1696 OF 2005 TAMBERLIN J SYDNEY 14 FEBRUARY 2006

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1696 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: APPLICANT S1486 OF 2003

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 14 FEBRUARY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The appeal is dismissed 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

NEW SOUTH WALES DISTRICT REGISTRY NSD 1696 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: APPLICANT S1486 OF 2003

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: TAMBERLIN J

DATE: 14 FEBRUARY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Federal Magistrate Nicholls ("the Federal Magistrate") delivered on 26 August 2005 dismissing an application for review of a decision of the Refuge Review Tribunal ("the Tribunal") made on 19 August 1999. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant the appellant a protection visa. 2 The primary ground of review on which the Amended Notice of Appeal is based is that the Tribunal committed jurisdictional error by failing to ask itself the right question, namely, whether the appellant's resistance to corruption and criminality was conduct by which a political opinion could have been imputed to him. The appeal also raises the question of whether there was a breach of natural justice because the appellant was not given an opportunity to consider and make submissions on the cases relied on by the Court. Finally, the appellant asserts that the country situation is dangerous for him and his family. In relation to the latter ground, the manner in which it is put by the appellant is that "there is no change in the country situation and peace is ever eluding." 3 The appellant is a citizen of Sri Lanka who arrived in Australia with his wife and two adult children on 15 July 1997. All four applied for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs on 27 August 1997. It was only the appellant who made specific Refugee Convention related claims. The wife and two children did not make any separate Refugee Convention related claims and their application was dealt with on the basis that all claims were dependent on the outcome of the appellant's application. 4 The matter has had a long history which, in brief, is as follows. On 19 August 1999, the Tribunal affirmed a decision of a delegate of the Minister to refuse a protection visa to the appellant. On 16 September 1999, the appellant sought review in the Federal Court. On 24 March 2000, Katz J made orders by consent that the application be dismissed with costs. On 3 May 2000, the appellant filed a Further Amended Statement of Claim in the High Court of Australia. The appellant was included in the additional schedule of represented parties to this Statement of Claim. On 25 November 2002, Gaudron J made several orders in relation to these proceedings. On 29 May 2003, a draft order nisi was filed and the proceedings were remitted, as a result of the orders of her Honour, to the Federal Court of Australia. On 20 February 2004, Emmett J made orders refusing the application for an order nisi. On 30 July 2004, the appellant sought review in the Federal Magistrates Court and, on 26 August 2005, that application was dismissed. 5 A Notice of Motion was filed by the Minister in the Federal Magistrates Court seeking orders that the application be dismissed on the basis of issue estoppel, Anshun estoppel or an abuse of process of the Court. 6 The Federal Magistrate found it unnecessary to deal with the question of estoppel because he formed the view that there was no substance in the single ground raised before him, namely, that the Tribunal had committed jurisdictional error by failing to ask itself the right question. 7 I have considered the material before me and the submissions of the parties. In relation to the primary question of whether the Tribunal failed to ask itself the right question, I am satisfied that the reasons for decision of the Tribunal sufficiently addressed this issue. 8 At 17-19, the Tribunal accepted that the appellant was engaged in duties as a Customs Officer which led him into conflict with those involved in illegal smuggling and made him aware that the smugglers were protected by corrupt connections. The Tribunal also accepted that, on several occasions, the appellant was directly threatened to abandon particular investigations and, in most instances, he appeared to have done what was demanded of him. In general, the Tribunal considered that the appellant had embellished the events relied on by him by suggesting that they occurred because he was a Tamil and that the Liberation Tigers of Tamil Eelam ("LTTE") played a key role. The Tribunal observed that the appellant had repeatedly added and modified his evidence to provide this emphasis. 9 The issue of criminality and imputed political opinion is referred to at 17, where the Tribunal said: "In relation to the threats from a particular criminal in 1989, the Tribunal is quite satisfied that this had nothing to do with the Applicant's race or anything other than his official duties and the fact that he was investigating matters the criminal did not want investigated. In the absence of any corroborative evidence, the Tribunal does not accept that Singhalese customs officers were never threatened in this way or that the police refused to act on any threats by criminals." 10 The Tribunal considered, in relation to an incident in March 1990, that there was no evidence that it gave rise to any persecution or that any difficulty experienced by the appellant was Convention-related. The Tribunal did not accept that the appellant, acting under direct orders and in accordance with government policy, would have had pro-LTTE opinions attributed to him. There is a specific finding by the Tribunal on the question of imputed political intention which demonstrates that there is no substance in the primary ground of appeal. In support of this finding, the Tribunal noted that no significant adverse inferences were drawn from his activities because the appellant was again promoted to a more senior position within the following two years. The Tribunal specifically did not accept the appellant's belated claim that he was motivated by anti-LTTE sentiment. Nor did it accept that the LTTE threatened the appellant's life at the time or that it subsequently took any action against him for this reason. 11 Although the Tribunal accepted that threats were made by two particular officers of the Special Task Force in 1994, after the appellant had been instrumental in an investigation which uncovered their involvement in smuggling cigarettes, the Tribunal found that nothing subsequently occurred as a result of or related to this event, and it was therefore not satisfied that the threat by two officers gave rise to any well-founded fear of persecution for a Convention reason. 12 At 18, the Tribunal expressed its satisfaction that an incident in September 1995, which was relied on by the appellant, involved persons or groups who wished to protect their illegal smuggling operations but considered that any threats directed against the appellant were made because he was a person in a position to threaten those illegal operations and not because of his ethnicity, imputed political opinion or for any other Convention reason. Similar conclusions were reached in relation to the alleged kidnapping of the appellant's son in March 1996. The Tribunal was satisfied that any actions and threats were made in order to induce the appellant to protect the illegal operations. In the opinion of the Tribunal, the fact that one or more of the officials, who were said to be corrupt and involved in the alleged conspiracy with the LTTE, were Singhalese demonstrated that the LTTE's hostility was not based on ethnicity or imputed political opinion. 13 Accordingly, since the crux of the Tribunal's decision on this point was that any threats to the appellant arose from his courageous stand in relation to corruption and criminal activities, and not from ethnicity nor imputed political opinion nor any other Convention reason, the appellant has failed to make good this ground of appeal. 14 The second ground raised in the Amended Notice of Appeal is that the appellant did not have an opportunity to make submissions on the copies of reported case law given to him "on the date of adjournment" and, because these were relied on by the Court to dismiss the application, there was a breach of natural justice. 15 The first point to note on this issue is that on 23 February 2005, the Federal Magistrate did not "adjourn" the matter but rather reserved his decision. Thereafter, the appellant had until the decision was handed down on 26 August 2005 - a period of some six months - in which to seek to address, or make any further submissions in relation to, the case law. It is true that the appellant was not specifically given an opportunity to do so, but it is important that he made no attempt to deal with the cases discussed before the Tribunal or to make any submissions on them. There is no suggestion that the Tribunal indicated that it would postpone its decision or consider any further submissions on behalf of the appellant in relation to the case law. Nor is there any indication that the appellant asked for an opportunity or period of time within which to make any submissions on the case law after the hearing. A third consideration is that there is no obligation on the Court, after a hearing, to give an opportunity to a party to make further submissions, especially in the absence of any request to do so. Although the appellant appeared in person, I do not consider that, in the circumstances of this case, there was any obligation on the Tribunal, or any legitimate expectation in the appellant in the absence of specific conduct or indication on the Tribunal's part, that he would be given a further opportunity to address legal questions and authorities referred to at the hearing, or would be given an opportunity to refer to other authorities. Of course, if a party wished to pursue this course, submissions could be sent in, and, if the Tribunal considered it appropriate, these could be taken into account. However, no attempt was made by the appellant to ask for an opportunity to file any further submissions in this matter. 16 Accordingly, I am of the view that there was no breach of natural justice in the present case. 17 A claim was also made by the appellant at (ix) of the Amended Notice of Appeal that, due to the orders made by Gaudron J on 25 November 2002, the respondent was not entitled to seek the dismissal of the application on the grounds of estoppel or abuse of process. However, these claims overlook the fact that the Minister's submission on estoppel was based on the appellant's previous proceedings before Katz J, and not his participation in the class action. 18 As far as the substance of the estoppel questions is concerned, there is no necessity to deal with these questions, as there is no merit in the other grounds raised in the Amended Notice of Appeal or arising from the submissions of the appellant. 19 I also note that the appellant alleges that there has been no change in the country situation and that there is no peace in Sri Lanka. This does not assist his case, as it is a question of fact for the Tribunal to determine and the contention of the appellant is simply a matter of assertion. 20 I have read the decision of the Tribunal and of the Federal Magistrate in detail and I am not persuaded that there is any error of law or principle disclosed in either of these decisions. 21 Accordingly, the appeal is dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.