Applicant A168/2002 v Minister for Immigration and Multicultural and Indigenous Affairs

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.