Applicant M135 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

In his decision the Federal Magistrate said the applicant asserted there had been a breach of procedural fairness in that the Tribunal relied upon country information without giving him the opportunity to respond to these matters, but did not provide any affidavit material or other evidence to support his claim. His Honour said:

"It is clear that in its decision the RRT noted the claims of imputed political opinion being pro‑LTTE arising from the employment by the applicant of a Tamil worker on a poultry farm. The RRT clearly considered the evidence of the applicant and rejected his evidence. It noted that the applicant did not apply for a protection visa for almost a year after he arrived in Australia and otherwise relevantly referred to matters raised by the applicant. The RRT's reasons do not in fact depend upon any country information as a prime basis for rejecting the applicant's protection visa claim. Accordingly, there is no arguable basis for this application. … In this matter I am satisfied that there is no arguable basis for the application and accept the respondent's submissions that there has been a failure in this application by the applicant to discharge the necessary evidentiary burden …. Applying the principles to which I have been referred in the present application, I am satisfied that the applicant has not provided material of a kind which would enable this court to grant the orders nisi sought."

The failure to "discharge the necessary evidentiary burden" and the "principles to which I have been referred" refer to authorities establishing that an applicant who complains of the Tribunal's failure to provide him with information in its possession must put forward material to enable the Court to determine whether, had the information been provided to him, he could have dealt with it in a way that might have affected the outcome of the case. See, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte A (2001) 185 ALR 489 at 501 and Applicant M115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1448 at [18]‑[21].

3 The ground of appeal appearing in the applicant's affidavit in support of the application, repeated in the draft Notice of Appeal, does not appear to have been pursued before the Magistrate. The applicant's account of his activities in Sri Lanka mentions no events that took place in 1994. It would appear that the final paragraph of his affidavit, and the ground in the Notice of Appeal, have been mistakenly copied from a similar application by Applicant M116/2003. Accordingly I will treat the applicant as wishing to repeat on appeal the matters he raised before the Magistrate. 4 In my view the Magistrate's decision is not attended by sufficient doubt to warrant it being reconsidered by the Court, whether a Full Court or a single judge. See Décor Corporation v Dart Industries (1991) 33 FCR 397. His Honour correctly stated the law applicable, in an order nisi context, to alleged non‑disclosure of information by the Tribunal. He also correctly stated that the Tribunal's conclusion did not depend upon any country information as a "prime basis" for rejecting the applicant's case. In fact the Tribunal disbelieved important parts of the applicant's evidence, which led it to conclude that he did not have a subjective fear of persecution. This conclusion was not in any way influenced by the country information. As to that the Tribunal said it "indicates the continuing problems that the LTTE campaign is causing in Colombo and it is natural that the Applicant (and his parents) may wish him to seek a better future in Australia, however, those problems do not make the applicant a refugee under the Convention." 5 In determining whether to grant leave it is also necessary to consider whether substantial injustice would result if leave were refused, supposing the Magistrate's decision to be wrong. As was said in Décor at 399, the "doubt" and "injustice" questions bear upon each other. In view of the remoteness of the prospect of success on appeal, if leave were granted, it is artificial to suppose the decision below is wrong. In the circumstances, I am not satisfied that substantial injustice would result from a refusal of leave. 6 Leave to appeal is refused. The applicant must pay the respondent's costs of the application. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Solicitor for the Respondent: P Barker, Australian Government Solicitor