Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 Before the Court is an application filed in the High Court on 10 December 2002 and remitted to this Court on 7 February 2003. The applicant seeks constitutional writs and declaratory and injunctive relief in relation to a decision of the Refugee Review Tribunal (the Tribunal) handed down on 8 August 1996. I have heard argument on preliminary issues as to (i) whether an enlargement of time is necessary and (ii) if so, whether the enlargement should be granted. 2 The person referred to in these reasons as "the applicant" is the first of four persons with the same surname whose names appear as "Prosecutors/Applicants" in the heading of draft order nisi filed in the High Court. I infer that the second to fourth persons are respectively the wife and children of the applicant. The applicant's wife and children were not included in his application for refugee status before the Tribunal. The applicant's wife lodged an application for refugee status in her own right, in which the elder child was included. The younger child was born after the applicant's application to the tribunal. Not being a subject of the Department's primary decision, the younger child's case could not be considered by the Tribunal. I shall therefore treat this case as the application of the applicant alone.

Earlier Proceedings 3 The applicant is a non-citizen and an ethnic Tamil national of Sri Lanka. He was born in 1952. 4 He claimed that he had become a supporter of the Liberation Tigers of Tamil Eelam (LTTE). He had completed an apprenticeship as a printer and had printed and distributed some literature for the LTTE in Colombo. In November 1980 he was taken into custody by the police and detained for four days and severely tortured for nearly 12 hours. After his release he continued to do printing for the LTTE. He experienced general harassment in everyday life along with other Tamils in Colombo. He left Sri Lanka on 2 July 1981 after paying 15,000 rupees to an agent for a passport and visa. 5 He went to West Germany and unsuccessfully sought asylum. He lodged an appeal but did not await its outcome because he heard many appeals were being rejected. In July 1983 he went to Switzerland. He lodged another application for refugee status in that country. This application was also refused. He lodged an appeal against that decision but later withdrew it. He was then permitted to stay in Switzerland using a residence permit renewable annually. In 1987 he formed a relationship with a fellow Tamil. The couple's elder child was born in May 1988. They married in February 1989. 6 While the applicant was in Switzerland he helped local LTTE militants by printing and distributing their publications, by donations and by assisting in the organisation of cultural functions and a demonstration. He was threatened by the rival Tamil group People's Liberation Organization of Tamil Eelam (PLOTE) when he refused to give money to them. 7 The applicant obtained a passport in 1991 from the Sri Lankan Embassy in Switzerland. He made many journeys within Europe using this passport, and one to Australia for about 10 days at the end of 1991, but has never returned to Sri Lanka. He did not apply for refugee status in any of the countries he visited because he thought he would be refused as he had been in Germany and Switzerland. The applicant left Switzerland in January 1995. Since his departure his Swiss entry permit has expired and he cannot return there. 8 On 23 January 1995 the applicant entered Australia on a subclass 673 family visitor visa, his wife having arrived earlier. A second child was born to the couple in Australia in December 1995. The applicant lodged an application for a protection visa on 2 February 1995. That application was refused on 14 September 1995. The delegate's decision was confirmed by the Tribunal on 8 August 1996. 9 The Tribunal had reservations about the applicant's credibility in relation to some aspects of his application. The Tribunal did not accept that the applicant faced a real chance of persecution by reason of his association with LTTE before he left Sri Lanka in 1981. His only association with the LTTE was to print and distribute some literature for them. The Tribunal accepted that the applicant had been detained and tortured in November 1980 and that this was an instance of persecution. However the applicant had been released after a short time, had never since been detained or otherwise troubled by the authorities and had been subsequently employed in the government printing offices. He was able to obtain a new passport in 1991. 10 The Tribunal found that the applicant's association with the LTTE in Switzerland was minor, non-violent and lawful. It accepted that the PLOTE might have attempted to extort money from the applicant and his family. However the Tribunal rejected the applicant's claims that PLOTE members had ever seriously threatened to bring his LTTE connections to the attention of the Sri Lankan authorities. In any event, there was nothing to report, since his activities in Switzerland had been minimal and peaceful. In the Tribunal's view, it was difficult to see that the Sri Lankan authorities would be interested in such information. The PLOTE evidently had not reported the applicant to the Sri Lankan authorities at the time he obtained his passport in 1991. 11 The Tribunal concluded that the applicant, as a Tamil civilian in Columbo, would not generally be subject to anything worse than short-term detention and possible ill-treatment short of persecution. The applicant did not meet the profile of those Tamils in whom the authorities might take a particular interest. 12 In an affidavit sworn on 10 December 2002 in support of his High Court application the applicant deposed that he did not seek review of the Tribunal's decision at the time because of "financial difficulties". He did not elaborate on the nature of those difficulties. 13 On 22 October 1996 the applicant was granted a Class TT subclass 435 Sri Lankan visa valid until 31 July 1998. On the latter date he applied for a Class AG sub class 806 visa claiming to be a special need relative of his sister. 14 A delegate on 13 February 2002 refused to grant the special need relative visa and on 12 June 2002 the Migration Review Tribunal (MRT) affirmed that decision. 15 On a date which does not emerge from the material, the applicant lodged an application for review by the Federal Court of the decision of the MRT but on 12 November 2002 he withdrew that application "because of financial difficulties". 16 As already mentioned, on 10 December 2002 the applicant filed an application for constitutional writs and other relief in the High Court. The draft order nisi included an order "that time be enlarged to permit the prosecutor to make the present applications for prerogative relief". 17 On the present hearing the applicant foreshadowed his intention to seek leave to amend the grounds raised in the draft order nisi by adding the grounds that there was jurisdictional error by the Tribunal in not considering (a) that extortion by PLOTE of funds from the applicant in Switzerland was or could be persecution for one of the reasons specified in the Refugees Convention, (b) that short and possibly repeated detention of the applicant involving ill treatment would be or could be persecution for a Convention reason, (c) the question whether the applicant had a well-founded of persecution by the LTTE, this being a relevant matter because of his claims that his co-operation with the LTTE in Sri Lanka and Switzerland had been obtained under threat and (d) whether the previous conditional release of the applicant by the authorities would affect the risk of him being persecuted were he to be subject to "short-term detention" as a Tamil. 18 On 7 February 2003 Hayne J ordered that further proceedings in the application be remitted to the Federal Court and that "the application proceed in that Court as if the steps already taken in the application in this Court had been taken in that Court". Further procedural directions were given. The order did not explicitly state, as has been done in some other remitter cases, that the High Court Rules should apply.