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[2005] FCA 1886
Federal Court of Australia
2005-12-22
Gaudron J, McHugh J, Jacobson J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1. On 19 October 1999, the Refugee Review Tribunal ("RRT") affirmed a decision made by the respondent not to grant the applicant a protection visa under the Migration Act 1958 (Cth). 2. The applicant filed an application for order nisi in the High Court of Australia on 18 June 2003 and an affidavit in support on the same day. He had previously been a member of class action no S89 of 1999, Lie v Refugee Review Tribunal [2002] HCA 30. The application was remitted to this Court pursuant to orders made by Gaudron J, as varied by McHugh J, following the delivery of judgment in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 ("Muin"). 3. By correspondence dated 12 November 2004, the District Registrar of the Court advised the applicant that the court proposed to consider whether there is an arguable case for the making of an order nisi on the basis of the written material before the court. The applicant was invited to file written submissions and submissions drafted by counsel for the applicant, Ms Tibbey, were filed on 10 December 2004. 4. Though the submissions were filed in December 2004, the matter has only recently been allocated to me, as it was previously understood that no written submissions had been filed. 5. I propose to deal with this application on the papers.
Background 6. The applicant, a citizen of Sri Lanka, is a Singhalese from Colombo. He claims to fear persecution by reason of his race, religion, nationality membership of a social group and political opinion. 7. The applicant asserted that his family has close ties with Tamils in Jaffna and were well-respected in Colombo by both Tamils and Singhalese, however after the 1983 ethnic riots, his father was branded an LTTE supporter. The applicant claims that after the civil war in Sri Lanka, Singhalese who supported Tamils either physically or politically were systematically harassed and subject to arrest, torture and abduction. 8. The applicant claims that he undertook gemology studies in 1980 in Sri Lanka and in the United States, and in 1985 he commenced work with a prestigious gem shop. He stated that his work brought him into contact with Tamils who looked into the financial side of the LTTE and bought valuable gems from him. The authorities became suspicious of his involvement with them, so he started to avoid servicing Tamil customers, which affected his business. 9. The applicant claims that in January 1991, the shop where he was employed bought a valuable gem which a foreigner bid unsuccessfully for. The foreigner approached an 'authority' who ordered the shop to sell the jewel for the price he offered. The applicant stated that they requested time to think about it, and when they returned to the shop, waiting thugs attacked them, and smashed and burned five vehicles at the applicant's father's private travel business. The thugs accused them of having Tamil/LTTE connection and warned that they were being watched and would be arrested at any moment. The applicant left the country and though returning to Sri Lanka on occasion, he lived in Zambia until 1995. 10. In its reasons for decision, the RRT noted that at the hearing in August 1997, the applicant was questioned about events leading to his departure from Sri Lanka in 1991 and subsequent events. It put to the applicant that notwithstanding the involvement of a prominent politician, the incident in January 1991 appeared to have been a commercial dispute or a criminal extortion, not for any Convention reason. 11. The applicant stated that in February 1996, soon after he returned to Sri Lanka, he was walking with a friend when police detained him and the CID questioned him. They accused him of arms smuggling with the LTTE. 12. The applicant claims that in September 1996, LTTE militants were arrested at the airport and found in possession of jewels, including African diamonds, which the applicant said the militants confessed had been brought into the country under his specific orders. The militants also said that the applicant and another dealer were transporting gems out of the country. The applicant stated that when he was arrested in September 1996, he was assisting the LTTE, but he had never engaged in smuggling. 13. As a result, the applicant was arrested and taken to CID headquareters where he was "assaulted, humiliated and tortured" to extract information about the LTTE. The applicant claims the police accused him of being in the LTTE and threatened with being handed over to army deserters who would kill him if he did not provide required information. The applicant asserted that these army deserters were hired by the President and Ministers to target people, including political opponents, and to torture and kill Tamil youths. 14. The RRT noted that at the hearing, another significant claim emerged that the applicant was seriously mistreated by the CID when he was arrested in September 1996. The mistreatment included being raped by several police officers. He told his father but no one else, and told the RRT that he had lost his dignity. 15. On 2 September 1999, the RRT wrote to the applicant and his advisor. The letter made reference to this claim of serious mistreatment at CID headquarters and noted that during the previous fortnight, three other cases had come before the RRT involving Sri Lankans, all with the same adviser, where the very same serious mistreatment was alleged. The RRT noted this raised a question as to whether the events were in fact the applicant's own experience, and requested any further comments by 16 September 1999. 16. By letter dated 15 September 1999, the applicant provided comments in response. He stated that he had never discussed the mistreatment at CID headquarters with his legal advisor, nor anyone else other than the RRT. The applicant stated that he never wanted the matter disclosed to the Sri Lankan community. 17. The RRT stated that all the evidence and submissions were taken into consideration in reaching its decision, and proceeded to deal comprehensively with the applicant's claims. It did not attach significance to minor inconsistencies in the applications submissions, but was concerned by some serious discrepancies in his claims. 18. Though the RRT found the applicant to be a credible witness, it concluded that he embellished or emphasised certain matters to suit his case. In particular, the RRT was not convinced by the applicant's claim that army deserters were hired to harass and kill, observing that the applicant made this claim without providing any evidence, and the RRT could not find any evidence in independent material to support this assertion. 19. The RRT referred to country information about the political situation in Sri Lanka since the early 1980s, citing four sources as examples of the general country information it has consulted. Whilst accepting that the applicant was coerced by threats and violence, it found that the motivation for such threats were commercial, criminal and self-interested, and not for any Convention reason. The RRT also found that the applicant's capacity to depart and return to Sri Lanka on numerous occasions from 1991 onwards indicated that throughout this time, he did not have a genuine subjective fear of persecution. 20. The RRT turned to consider the specific claims of arrest in February and September 1996. It stated that it had not drawn an adverse inference from the fact that prior to the RRT hearing, the applicant had failed to raise the claim about mistreatment at CID headquarters. However, the RRT found that on both these occasions, it was satisfied that the applicant was not questioned for a Convention reason (such as ethnicity or political opinion) but on the basis of a reasonable apprehension that he breached a criminal law of general application by involvement in illegal criminal activities in importing gems and/or arms for terrorist organisations. 21. The RRT considered that the circumstances of the claim did not give rise to a suggestion that the detention involved an imputed political opinion. It was satisfied that to the extent that the authorities may have viewed the applicant as sympathetic to LTTE, this followed from their specific suspicions of smuggling and did not provide a motivation for his arrest or subsequent mistreatment. The RRT found that the applicant's mistreatment whilst in custody amounted to a serious criminal offence, but it was not satisfied that the mistreatment had been motivated by the applicant's ethnicity or a political opinion imputed to him or any other convention reason.
Discussion 22. The grounds upon which relief was claimed in the draft order nisi were as follows:-
"1. The Second Respondent made the decision in circumstances which amounted to a failure to accord the Applicant natural justice.
The Second Respondent constructively failed to exercise its jurisdiction in that it failed to take into account relevant considerations in the exercise of its power under the Act, which it was bound by the Act to take into account in the circumstances of the case, and/or took into account irrelevant considerations in the exercise of power under the Act.
That the decision of the Second Respondent was so unreasonable that no reasonable decision maker could have made it.
The Second Respondent constructively failed to exercise its jurisdiction in that it was affected by an error of law in the exercise of its power under the Act.
The Second Respondent failed to exercise its jurisdiction in that in making the decision there was an improper exercise of power conferred by the Act, because the decision was:
c. not made in accordance with the procedures set out in the Act.
The Second Respondent failed to exercise the jurisdiction conferred on it by the Act in that the exercise of power under the Act is based on a finding for which there was no evidence or other material.
The Second Respondent made the decision in circumstances which were otherwise contrary to law." 23. To obtain an order nisi, an applicant must show that he or she has at least an arguable case that the RRT, whose proceedings are called into question, has erred in a manner that would justify final relief by way of an order absolute. 24. The applicant does not contend that, as was the case in Muin, he was misled into believing that the RRT had material before it which it in fact did not. Rather, the applicant contends that there was a denial of procedural fairness because the applicant was not provided material entitled "DIMA Country Information Service Data Holdings" ("DIMA material") upon which the delegate, and the RRT relied. 25. The applicant takes issue with the RRT's finding that any persecution experienced by the applicant was not for a Convention reason. It is submitted that the DIMA material could have supported the applicant's claim, and the applicant ought to have been given this material along with the other material the RRT referred to, for it was relied upon in a way adverse to the applicant and he ought to have been provided the opportunity to respond to it. 26. Though the RRT makes no reference in its decision to the DIMA material, the applicant submits that it is reasonable to assume the RRT relied it. The applicant argues that because the RRT did not fully particularise the material it relied upon and only cited some references by way of an example, this indicated that the RRT had regard to more than the cited material. 27. The applicant submits that had he been provided with the DIMA material, he could have then provided the RRT with information and evidence about the "general collapse of the criminal justice system". 28. However, as the applicant acknowledges, the RRT makes no reference to the DIMA material. In my view, no arguable case has been made that it was not open to the RRT to make the finding it did that there was no persecution for a Convention reason. 29. Turning to the other grounds in the draft order nisi, the applicant has not provided any particulars to support his claim that the RRT was biased. There is nothing before me to indicate an arguable case of actual or apprehended bias. 30. The applicant also claims jurisdictional error by the RRT in reaching a conclusion that mistreatment of the applicant was not due to imputed political opinion. The applicant asserts that the RRT failed to take into account the fact that the applicant was detained because of his association with an alleged Tamil arms smuggler, and that he was tortured whilst in custody. 31. However, the RRT made specific reference to this information, and it is for the RRT to determine what weight to give it. The applicant submits that the RRT's conclusion was illogical on the information before it, and against the weight of that evidence. In my view, there is no arguable case that the RRT was not entitled to reached the conclusion it did on the information before it. 32. I note that the refusal of the orders presently sought would not constitute a final determination of any question between the applicant and respondent named in the draft orders nisi. Accordingly, as observed by the Emmett J in Applicant S195 v Refugee Review Tribunal [2005] FCA 1571 ("Applicant S195") at [10], the refusal would not give rise to any issue estoppel or res judicata. 33. For the reasons set out in Applicant S195 at [11], it is appropriate for Order 51A rule 5(1) of the Federal Court Rules to be dispensed with, and the application for orders nisi is refused.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.
Solicitor for the Respondent: Australian Government Solicitor
Applicant S317 of 2003
Minister for Immigration and Multicultural and Indigenous Affairs