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[2004] FCAFC 100
Federal Court of Australia (Full Court)
2004-05-07
Crennan JJ
Original judgment source is linked above.
The applICant's grounds of appeal 17 By his notice of appeal, filed on 19 December 2003, the applicant stated the following as grounds of appeal: '2. GROUNDS OF APPEAL The grounds on which the Appellant seeks orders under section 39 B of the Judiciary Act, in relation to the decision are as follows: A. There was an error of law in the Court's decision constituting a jurisdictional error. PARTICULARS I disagree with the decision of the Federal Court. I will provide further particulars when I am provided with a copy of the decision of the Federal Court. B. There was procedural error in the Court's decision constituting an absence of natural justice which was also a jurisdictional error. PARTICULARS I repeat the particulars as above.'
The applicant's letter to the Court dated 21 April 2004 18 By letter addressed to the Court, the applicant has stated: 'It is easy for some to conclude my claim that I am not a genuine refugee, but if you lived in the Philippines, you will understand where I am coming from. The Philippines is undeniably one of the worlds most dangerous and notorious countries and it continues to get worse. Most of my friends and colleagues have been either killed or tortured and I still feel that it is not safe for me to return. I came to Australia because it is a country where I can seek refuge away from all the violence and danger in the Philippines. Originally I came here as a tourist, but I have never been a burden to the country. I have worked hard on every job to support my family and have always paid my taxes. I am a law abiding resident of this country and in some ways already feel like a citizen through my contributions. I have had my business for over a decade and have created a lot of jobs for many Australians. Apart from what I have already mentioned above, another important reason why I am fighting to stay in Australia is because my fifteen year old daughter who is an Australian Citizen will be disadvantaged greatly. If I was forced to return to the Philippines she will not have a father and mother available to give her the emotional and financial support she needs at her stage in life. My son does not have the means to look after her and cannot see how it will be reasonable for him to take on a mother and father role to a fifteen year old. At the same time, my daughter cannot start a new life in the Philippines, if we were to go back, not only will she be out of place and not understand the language, but it is not a way of life suitable for her amongst all the danger. We no longer have a home in the Philippines, there is nothing there for us to return to. We have established our lives here in Australia, we are a very tight family unit and regard Australia as our home. I am asking for a fair decision for my daughter's sake, she is an Australian Citizen and cannot see how going back to the Philippines or losing a mother and father can be fair on her. Enclosed with this letter is a copy of the decision from the Administrative Appeals Tribunal regarding my case. Please feel free to read through it and hope that you will come to more of an understanding of our very difficult situation.'
Conclusions on the present application 19 In our opinion, for the reasons given by the respondent to his Honour, summarised at [16] above, the decision of the primary Judge was obviously correct; there is no arguable basis for the grant of judicial review here. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Weinberg & Crennan.
Associate: Dated: 7 May 2004 Solicitor for the Applicant: No appearance
Solicitor for the Respondent: Australian Government Solicitor
Applicant M143 of 2003
Minister for Immigration & Multicultural & Indigenous Affairs
The decision of the primary Judge 14 In dismissing the application for an order nisi for prohibition and certiorari, the primary Judge said that the applicant's arguments, written and oral, were (a) expressed 'in the most general terms'; and (b) did not disclose 'any real grounds' for the relief sought. 15 His Honour added ([2003] FCA 1536 at [5]): 'Although the applicant was a party to the Muin proceedings his contentions of fact and law do not raise, let alone satisfy, the factual bases for making out the grounds in Muin that must be satisfied before a court finds that procedural fairness has been denied. Rather, the applicant claims that the Tribunal failed to accord him procedural fairness in that it relied on a document ("United States Department of State Country Reports on Human Rights 1996, Philippines Report on Human Rights Practices for 1996") containing country information without providing the applicant with an opportunity to respond to that document. There are a number of difficulties with that claim, which are set out in detail in the respondents' submissions. The document to which the applicant points was not referred to in the Tribunal's decision and there is no basis for concluding that it was relied upon by the Tribunal or treated by it as relevant to the decision. Nor has it been established that the applicant was denied procedural fairness in relation to that document. It has not even been stated by him that the document was adverse to the case he was putting to the Tribunal. Accordingly, there is no basis for the grant of the relief that the applicant is seeking.' 16 The respondents' submissions mentioned by the Judge included the following: · The Tribunal did not rely on country information in rejecting the claims made by the applicant. · The Tribunal's decision was based principally upon the credibility problems with the application. · The Tribunal rejected the applicant's claims as lacking substance, finding that: o It was eighteen years since the applicant had any political involvement in the Philippines and, even then, such involvement as he had was of a very minor and low profile nature. o If the applicant's last political activity was in 1980 (as he claimed at the hearing) he remained in the country for about another year thereafter without encountering any problems. o The applicant obtained a passport in his own name without difficulty in 1981, and it was extended for him in 1983. o The applicant was able to leave and enter the Philippines twice without encountering any problems, even while former President Marcos was in power. · There is no evidence in the Tribunal's decision that it referred to, or relied on, this document. The only document referred to by the Tribunal was the 'Far East and Australasia 1996' for a history of the relevant period (page 7 of the decision). · Even if the applicant could show that the Tribunal relied on country information, the Tribunal's failure to disclose that information did not constitute a breach of procedural fairness because none of the information was 'decisive' or 'crucial' to the Decision (see Muin v Refugee Review Tribunal (2002) 190 ALR 601). · The applicant has not advanced any evidence that, had the country information about which he now complains been drawn to his attention, he would have advanced any further material or submissions. In Muin, it was an agreed fact that that would have occurred. There is no such agreement in this case. In the absence of such evidence, the applicant has failed to show that he suffered any unfairness as a result of the breach of procedural fairness alleged (see Ayan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 139; [20]).
(2002) 190 ALR 601