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[2004] FCA 749
Federal Court of Australia
2004-04-30
Sundberg J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 Application for leave to appeal from the decision of the Federal Magistrates Court dismissing an application for constitutional writs directed to the Refugee Review Tribunal in respect of its affirmation of the respondent's decision to refuse the applicant a protection visa. 2 The application is supported by an affidavit deposing that the applicant is a Sri Lankan who applied for refugee status on 8 March 1996. The application was refused. The decision of the respondent was affirmed by the Refugee Review Tribunal. He says he joined in the Muin proceedings in the High Court, and filed his application in that Court on 8 May 2003. The affidavit concludes: "I disagree with the decision of the Federal Magistrate dated 18 March 2004. I believe that his Honour failed to consider my case properly."
The draft Notice of Appeal contains the following grounds:
"1. There was an error of law in the Court decision constituting a jurisdictional error. I believe that Federal Magistrate did not or [failed] to consider my case properly. 2. I do not agree with a decision of the Federal Magistrate dated 18 March 2004." 3 The applicant and his wife were applicants before the Federal Magistrate. Only the male applicant seeks leave to appeal. The Magistrate said: "Overall there was a complaint about a lack of opportunity to comment on certain matters and I interpret it to be country information documents."
His Honour said it was clear from the Tribunal's decision that the applicant was able to put material before the Tribunal through his legal representatives concerning the political violence he alleged had been perpetrated against him. He noted that the Tribunal said it had examined documentation submitted by the applicant and his adviser concerning political violence. It concluded that there was nothing in that or any other available material that rendered well founded any fear of persecution he might have due to an association with the United National Party. The Magistrate said:
"Hence the key issue in the matters addressed by the RRT and the country information is clearly background information only to the extent that the RRT found that support of UNP of itself would not give rise to a well founded fear of persecution. Specific details were considered as submitted by the respondent in relation to the applicant and the RRT found that the applicant had a 'minor political profile'. Whilst other evidence was given by the applicant to the RRT it is clear that it made a factual finding. There is nothing in the material in my view which would provide any arguable basis for the application being granted in this case. … I am satisfied there is no arguable basis for the application and accept the respondents' submission that there has been a failure in the present application by the applicant to discharge the necessary evidentiary burden …. Applying the principles to which I have been referred to … the present application, I am satisfied the applicant has not provided material of a kind which would enable this court to grant the order 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 a failure to disclose information in the possession of the Tribunal 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].
4 The draft Notice of Appeal does not disclose any identifiable ground of appeal. 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 by the Tribunal of information. As he pointed out, the applicant submitted to the Tribunal material dealing with the political violence in Sri Lanka. It also took into account background country information showing that support of the UNP of itself would not give rise to a well founded fear. The applicant did not place before the Magistrate any material to enable him to determine whether had that background information been provided to the applicant his reaction to it would have made any difference to the outcome. 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 those 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: M Ngo, Australian Government Solicitor
Applicant M84 of 2003
Minister for Immigration & Multicultural & Indigenous Affairs