Applicants M237/2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 On 8 December 1997 the applicants, who are citizens of Sri Lanka, made an application in Australia for protection visas. The principal applicant is of Tamil ethnicity. Her daughter is the other applicant. On 5 February 1998 a delegate of the Minister rejected the application. On 10 July 2000 the Refugee Review Tribunal ('the RRT') affirmed the decision of the delegate. The applicants then applied to the Court for review of the RRT's decision. The application was dismissed by Marshall J on 8 June 2001 (see CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682) ('the first review decision'). An appeal from Marshall J's decision was dismissed by a Full Court on 6 December 2001 (see CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 1707) ('the first Full Court's decision'). 2 The applicants sought special leave to appeal against the first Full Court's decision, but the application was discontinued on 4 July 2002. Subsequently, the applicants made an unsuccessful request to the first respondent under s 417 of the Migration Act 1958 (Cth) ('the Act') to substitute for the decision of the RRT a more favourable decision. 3 In December 2002 the applicants applied to the High Court for writs of prohibition and certiorari to issue against the RRT. The matter was remitted to the Court on 7 February 2003. The Applicants' order nisi application contained the following grounds: '1. The decision made by the Second Respondents did not observe procedures that were required by the Act or the regulations to be observed in connection with the making of the decision[.] PARTICULARS The Tribunal failed to observe the procedure prescribed in s 430(1)(d) of the Act in that the Tribunal prepared a statement of reasons for its decision which failed to refer to the evidence or any other material on which a finding on a material question of fact was based, namely the finding that 'the available information runs counter to the claim that landlords or people hosting their relatives in Colombo are detained until their tenants or guests are cleared of LTTE connections.' 2. The decision involved an error of law being an error involving an incorrect interpretation of the applicable law. PARTICULARS The Tribunal in construing the statutory definition of "protection obligations under the Refugees Convention as amended by the Refugees Protocol["], misinterpreted the word persecuted, as was demonstrated by the Tribunal's failure to make a finding on the applicant's claims that Sri Lankan security officers assaulted the applicant by kicking her and pushing her around and pointing their guns at her during regular checks of her home from 1995. AND IT IS FURTHER ORDERED THAT time be enlarged to permit the prosecutors to make the present application for prerogative relief.' 4 On 11 August 2003 North J made an interlocutory order dismissing an application for extension of time in relation to the certiorari application (see Applicants M237/2002 v MIMIA & Anor [2003] FCA 1183) ('Applicants M237/2002'). The applicants appealed against his Honour's order, but on 27 February 2004 the second Full Court dismissed the appeal as incompetent because the applicants had failed to obtain leave before bringing the appeal (see Applicant M237 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 61) ('Applicant M237 of 2002'). 5 The remaining part of the remitted proceeding is the application for a writ of prohibition. The difficulty confronting the application is that it is based on the same substantive grounds as those that have already been rejected by the Court on previous occasions. 6 The applicants' main claims before the RRT were summarised by the Full Court in the first Full Court's decision at [3]-[8]: 'In a document attached to her application for a protection visa, the first appellant described herself as "… a refugee on account of the of the on-going ethnic violence in Sri Lanka and also [a] woman at risk under these conditions as I have been abandoned by my husband who now lives in Saudi Arabi". She also described herself as a victim of race riots in 1983 in which her property was burnt down. She and many of her relatives were tortured and her nephew was fatally shot. One of her uncles committed suicide because he could not bear the torture and another uncle died from heartbreak at the death of his son. All of these matters made her fearful of living in her country of birth. The first appellant's husband left her in August 1995 and went to Saudi Arabia promising to bring her and her daughter there, a promise which was never fulfilled. She and her daughter were left living alone in a flat in a predominantly Sinhalese area. Her Muslim in-laws rejected her because of her ethnicity. Her Sinhalese neighbours passed adverse comments about her ethnicity and would report her to Security Authorities and the Sri Lankan army. Several times a month, according to the first appellant, her house was checked by Sri Lankan army officers wielding guns. They would come knocking on the door in the middle of the night and search the house. On several occasions she and her daughter were taken at night to a police station and questioned about visitors. These were visitors from the north who were staying with them. She was expected to register visitors with the police. This could not be done within one night. Someone in the block of flats in which the appellants lived had called the police and told them there were Tamil Tigers in the appellant's house. On several occasions the first appellant and her visitors were locked up in the police station for days without food or water until police were satisfied that she was in the clear. On one occasion she had to spend about eleven days in a police station as one of her visitors was from Jaffna. The police suspected the first appellant of being a terrorist as well as her visitor. Only when her visitor was cleared was she released. In August 1997, according to the first appellant's statement in support of the protection visa application, police entered a Tamil home in a flat close to her and shot and killed a five year old child, accusing its parents of knowing the whereabouts of terrorists who had visited them some time previously. The police allegedly shot the child to teach the parents a lesson. The first appellant said that she needed a break from all these tensions and applied to come to Australia on a holiday to visit her sister and family until the tension in Sri Lanka ceased. A recent bombing in the city two months previously had also scared her. Her sister and husband in Australia had been trying to reconcile her failed marriage by inviting her estranged husband to come to Australia on a holiday. But reconciliation failed. The first appellant said she was left to face the consequences of returning to Sri Lanka "…and living the life as a single woman at risk and as a suspected terrorist for no fault of mine except for my ethnicit"'. Her application for a protection visa was said therefore to be based on a fear of persecution in Sri Lanka on account of her ethnicity and suspicion of involvement with the LTTE on account of entertaining Tamil relatives from the north. In a submission put to the Tribunal by Victoria Legal Aid on behalf of the appellants, a summary of their claims was set out. In that summary reference was made to the fear which the first appellant said she experienced as a result of the 1983 race riots in Colombo and the burning of her house by Sinhalese people. It referred also to the assassination of President Premadasa in 1993 and media speculation that the Tamil organisation, LTTE, was behind the killing. The first appellant was said to be fearful of being killed by Sinhalese at this time. Incidents in which police visited her home in 1995 were referred to. The first of those occurred when relatives from Jaffna stayed at her home. The second occurred in August 1995, at the time of her daughter's birthday. She once again had visitors from Jaffna and police searched her premises for LTTE information. She claimed to have been assaulted by security officers who kicked her and pushed her around and pointed guns at her. She complained of selective harassment and discrimination in 1996 by the management and staff of her local bank in Colombo and of her complaint to the bank manager about a security officer who swore at her and refused her entry. Police were called and she was taken to a police station where she claimed to have been verbally and physically humiliated for several hours. In March 1996, when a friend visited the first appellant from Jaffna, a Sinhalese neighbour abused her on the stairway of the flats for using Tamil language and slapped her on the face. She made a complaint to police who did nothing about the incident. She was questioned in Sinhalese and could not explain herself properly. No action was taken on her complaint. She said that abusive signs and messages were placed on and under her door about her being a Tamil and a supporter of the LTTE. On another occasion in 1996 she was taken to a police station and questioned after standing waiting for a friend outside the Colombo YWCA. At Christmas time that year, a relative from Jaffna stayed with the first appellant in Colombo. Both were subsequently arrested by police and detained for about ten days. The relative was tortured and the first appellant interrogated at gun point and denied water or food for ten days. She also claimed to have been the subject of an attempted rape by an officer in charge of security officers searching her house in September 1997 as part of a response to information that the LTTE were planning to blow up the domestic airport, Telecom and the Water Board in Colombo.' 7 The RRT made adverse findings in respect of the principal applicant's credibility and also in respect of a number of her claims. It concluded that: · the applicant did not fear persecution by the authorities or her Sinhalese neighbours due to her Tamil ethnicity because after her house burned down she bought another house in the same neighbourhood, and because she returned to Sri Lanka repeatedly after overseas visits; · it was not plausible that the applicant would fail to notify the authorities when she had Tamil visitors, especially after the problems she had faced with unregistered visitors in the past; · it was not plausible that she would have been detained by the authorities for a prolonged time, nor that her daughter would have been detained, while waiting for visiting relatives to be cleared; · it was not plausible that after being 'abducted at gunpoint and threatened for prolonged periods with death and rape' she would not have left the country, or at least moved to another area where she would have felt safer; · the applicant's claim to have been detained and mistreated for several days was 'contrived or at least highly embellished'; and · the applicant 'contrived the claim that she was subjected to a sexual attack in September 1997' because she did not report it to anyone prior to the RRT hearing. 8 In relation to the applicant's daughter, the RRT found that, although there was some evidence that she had 'been traumatised and is depressed and anxious', there was 'only a very remote chance' that she would face persecution if she were to return to Sri Lanka. 9 In the first review decision Marshall J dismissed the application for review after determining that the applicants had failed to establish any of the grounds upon which they had relied. Those grounds were summarised in the first Full Court's decision at [19]: '1. Failure by the Tribunal to observe procedures required by the Act to be observed in making its decision. The particulars of this ground included failure by the Tribunal to set out in its reasons a finding on the question whether Sri Lankan security forces assaulted the applicant during visits to her home by kicking and pushing her and pointing their guns at her ("the intimidation question"). A further particular in support of the first ground asserted failure by the Tribunal to set out in its reasons a finding on the question whether the Sri Lankan government provided adequate protection for women in the applicant's position from sexual assault by members of State agencies ("the single woman at risk question"). 2. The decision was not authorised by the Act or regulations. This ground was particularised by reference to the Tribunal's failure to conduct a valid review as required by s 414 of the Act evidenced by its failure to make a finding on "the intimidation question". 3. The decision involved an error of law being an error involving an incorrect interpretation of the applicable law. This ground was particularised by assertions that the Tribunal misinterpreted the word "persecuted" as demonstrated by its failure to make a finding on the intimidation question. It was also said to have misinterpreted the statutory definition of "protection obligations under the Refugees Convention as amended by the Refugees Protocol" as demonstrated by its failure to consider the "single woman at risk" question. 4. The decision involved an error of law being an error involving an incorrect application of the law to the facts as found by the Tribunal. This ground was particularised, inter alia, by the contention that the Tribunal misapplied the statutory definition of "protection obligations" as demonstrated by its failure to consider the "single woman at risk" question. 5. There was no evidence or other material to justify the making of the decision.' 10 The applicants' grounds of appeal to the Full Court were set out in an amended Notice of Appeal filed on 8 November 2001, and were reproduced in the first Full Court's decision at [25]: '3(a) The trial Judge erred in his interpretation and application of MIMA v Yusuf (2001) 180 ALR 1, a decision of the High Court delivered after the hearing of the application by the trial Judge but before the trial Judge handed down his reasons for judgment. (b) The trial Judge erred: (i) in failing to hold that; or (ii) in failing to consider whether - the RRT's failure to make a finding about CCC's claims that Sri Lankan security forces assaulted her during visits to her home by kicking her and pushing her around and pointing guns at her provided a ground of review under section 476(1)(b), (c), and/or (e) of the Migration Act 1958. (c) The trial Judge erred by holding that the RRT did not misunderstand and/or misapply the meaning of 'persecuted' by not finding that CCC had a well founded fear of persecution on account of her race if returned to Sri Lanka by reference to the assaults referred to in ground (b) above. (d) The trial Judge erred: (i) in failing to hold that; or (ii) in failing to consider whether - the RRT's failure to make a finding about CCC's claim that the Sri Lankan government did not provide adequate protection for single women from sexual assaults by members of the armed forces or police provided a ground of review under section 476(1)(b), (c) and/or (e) of the Migration Act 1958.' 11 The Full Court in the first Full Court's decision rejected each of the applicants' grounds of appeal because they were all dependent on the applicants establishing that the RRT had not made findings on the 'intimidation' and 'single woman at risk' issues, and the Full Court found that it had. 12 When the remitted application in Applicants M237/2002 came before North J, his Honour refused the application for an extension of time on two grounds: (1) the claim was bound to fail on the merits as it had already been dismissed by Marshall J and the Full Court, and (2) res judicata and issue estoppel. North J stated at [28]-[29]: 'It is, therefore, clear that all of the grounds either formally raised in the present application, or which the applicants have, one way or another, indicated might be raised in the present application, have been considered by Marshall J and/or the Full Court, and are bound to fail on their merits … An alternative basis upon which the arguments raised are bound to fail, is by operation of the principles of res judicata and issue estoppel. Each of the arguments and the issues which underlie the arguments has been considered and determined between the parties in the litigation to date. Whether by operation of res judicata or issue estoppel, those grounds are no longer open to be argued. I adopt and apply the approach to res judicata and issue estoppel in this application as explained by Merkel J in Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677.' 13 The principal applicant appeared in person before a second Full Court on 27 February 2004 to appeal against 'the whole of the judgement of North J'. Finkelstein J (with whose reasons Heerey J agreed) stated in Applicant M237 of 2002 at [8]-[9]: 'The grounds of appeal allege errors of law on the part of the tribunal, but not the judge. No particulars of those errors are given aside from them being described as "jurisdictional" and "procedural" in the sense that the tribunal failed to accord the appellant natural justice. In this state of affairs two things are clear. The first is that the order made by North J is interlocutory in nature and cannot be the subject of an appeal as of right. The appellant was required to obtain leave before bringing her appeal. She has not done so. It follows that the appeal is incompetent. The Minister asks for the appeal to be dismissed for that reason and I would make an order to that effect. Even if I were to treat the appellant as having made an application for leave to appeal the decision of North J, I would refuse such application on the basis that an appeal would be hopeless.' 14 The last observation is obviously relevant to the present application as the grounds relied upon in the present application for a writ of prohibition are the same grounds as were relied upon by the applicants for the writ of certiorari before North J. 15 I have set out in detail the manner in which the applicants' claims have been dealt with on previous occasions because it is clear that all of the applicants' claims of legal or jurisdictional error have, both with and without legal assistance, been rejected on the merits by seven judges of the Court (Whitlam J was a member of both Full Courts). 16 The first respondent's initial written submissions in the present application proffered three reasons why the Court should refuse the application for an order nisi for prohibition: '(a) First, because the Court has refused to extend time to apply for the issue of certiorari in relation to the Tribunal's decision, there is no basis on which the Court can grant prohibition against the Minister. (b) Second, in any event, the grounds on which the applicants seek prohibition are identical to the grounds on which they sought certiorari. Those grounds have been considered and determined by Marshall J and the Full Court in the earlier proceedings, and by North J on the application for an extension of time. Those decisions give rise to an issue estoppel. Further, the decisions demonstrate that grounds relied on by the applicants are clearly hopeless. (c) Finally, the additional material filed by the applicant does not reveal any arguable case of jurisdictional error.' 17 The applicants have not filed any evidence in support of the remitted application that raises a ground of review that can establish jurisdictional error that has not already been rejected in the previous decisions to which I have referred. Rather, the applicants have filed 26 pages of written submissions (plus attachments), which appear to have been prepared without the benefit of legal assistance, and which, in substance, seek either to re-agitate the merits of matters before the RRT or to argue grounds that have already been rejected by judges of the Court. 18 There are obvious difficulties about the applicants adducing evidence that might be relevant to a challenge to the RRT's on the ground of jurisdictional error. For present purposes it is sufficient to state that any evidence upon which the applicants wish to rely must be presented in an affidavit and be admissible as evidence. I am not prepared to treat the written submissions as evidence. 19 Nonetheless, as the principal applicant has appeared in person, I have considered the written submissions but do not regard them as raising issues that would be advanced by evidence, having regard to the requirement that jurisdictional error must be established. 20 The first respondent's additional submissions, in response to the applicants' written submissions, state: 'The applicants' further material does not raise an arguable case of jurisdictional error 4. As was the case with the material filed by the applicants in August 2004, most of the further material filed in January 2005 is directed to factual matters and constitutes an attempt to take issue with the merits of the Tribunal's findings of fact. 5. On page 1.1 of the applicants' covering submissions, the applicants purport to seek orders quashing the Tribunal's decision. This is directly inconsistent with the earlier refusal by this Court to grant an extension of time to apply for certiorari. The only remaining issue for this Court concerns the application for prohibition "directed to the [Minister] prohibiting [her] from proceeding further with matter No.V98/08458 in the Refugee Review Tribunal". It also goes without saying that the Court has no jurisdiction to make "an order that both of us be granted recognition as a refugee and/or any consequential necessary visa to enable us to remain in Australia". Mistakes made by the VLA solicitor. 6. The applicants refer to "mistakes" and "factual errors" and "omissions of vital points" in the submission to the Tribunal. The applicants also refer to a failure to "substantiate" a claim that Sri Lanka has a patriarchal culture perpetuated and controlled by the State. The allegations made under this heading are irrelevant to any issue concerning the validity of the Tribunal's decision. Mistakes made by the RRT member 7. Unfair procedure. The applicants complain about the adverse effect on their credibility arising from the correction of mistakes in the submission, and the failure by the Tribunal to make inquiries as to why the applicant would contradict statements in the submission. The applicants assert that the failure to make such inquiries, and to adjourn the hearing, amounted to a denial of procedural fairness. However, any problems arose due to failures on the part of the applicants or their solicitors. The Tribunal was not under any duty to make inquiries. There was no failure by the Tribunal to provide a fair hearing or otherwise accord procedural fairness to the applicant. 8. Adverse country information. Although the applicants assert that the Tribunal referred to adverse country information without notice to the applicants, the majority of the allegations under this heading involve an attempt to put forward a range of country information in support of the applicants' claims, and is no more than an attempt to revisit the merits of the findings of fact made by the Tribunal. 9. Sexual abuse. The applicants take issue with the merits of the Tribunal's finding rejecting the primary applicant's claim of sexual abuse, and complain about the failure of the Tribunal to make inquiries or question the primary applicant about the detail of her claims. These allegations do not raise any case of legal or jurisdictional error. 10. The Tribunal does not base its conclusions on evidence or give reasons for its decision. The applicants simply identify a number of the Tribunal's findings of fact, and raise matters going to the merits of the Tribunal's decision. It may be noted that this Court has already rejected the grounds based on an alleged failure by the Tribunal to comply with s.430 of the Migration Act. 11. Relevant issues the member failed to mention in his findings. The applicants refer to a number of factual matters. Many of these matters were in fact referred to and considered in the Tribunal's reasons. However, all of the matters concern the merits of the Tribunal's decision. 12. Identifying a wrong issue. The applicants takes issue with the merits of the Tribunal's findings, and seek to rely on further evidence. 13. Errors of fact made by the RRT. Any errors of fact made by the Tribunal are not reviewable in these proceedings. It is not an error of law (let alone a jurisdictional error) for the Tribunal to make an incorrect finding of fact. 14. Underwent persecution due to my ethnicity. The applicants rely on factual matters going to the merits of the Tribunal's decision. 15. Benefit of the doubt. The applicants allege that the Tribunal failed to give them the benefit of the doubt when considering their claims. There is nothing to indicate that the Tribunal did not properly consider the applicants' claims in accordance with the "real chance" test. Beyond this, any alleged failure to give the applicants the "benefit of the doubt" would not involve legal or jurisdictional error. 16. Daughter not in a position to give evidence. This matter does not raise any possible legal error on the part of the Tribunal. 17. Cumulative grounds. The applicants refer to factual matters going to the merits of the Tribunal's decision. 18. Reliance on country information. The applicants seek to rely on a range of country information going to issues of fact before the Tribunal. 19. Tribunal failed to consider relevant information and factors. The allegations under this heading raise factual matters going to the merits of the Tribunal's decision. Further, it is open to question whether the Tribunal in fact failed to consider these factors and information. 20. RRT does not explain why it did not consider the conduct of the security forces was motivated by race. The allegations under this heading involve factual matters going to the merits of the Tribunal's decision. 21. Assessment of well-founded fear. The applicants allege that the Tribunal did not "dwell deep" in to the matter, and failed to discuss certain factual issues. These are factual matters going to the merits of the Tribunal's decision. 22. RRT based its conclusions on inaccurate and incomplete information. The applicants complain about alleged errors of fact and selective reliance on evidence and country information. These are matters going to the merits of the Tribunal's decision. In so far as the applicants allege prejudgment (or actual bias) on the part of the Tribunal (see page 24.5), these are serious allegations which should be strictly proved. The applicants bear a heavy onus in proving an allegation of actual bias. It is only in rare and exceptional cases that the combination of factors and circumstances will clearly prove actual bias. In particular, "[t]he mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision." There is no evidence in the present case which is capable of supporting any allegation of actual bias. 23. The transcript. There is no transcript of the Tribunal hearing in evidence in these proceedings. The respondent objects to the purported transcript attached to the applicants' further material. In any event, there is no proper foundation (evidentiary or otherwise) for any suggestion that the manner in which the Tribunal conducted the hearing amounted to a denial of procedural fairness. 24. Constitutional matter. Although the applicants have purported to raise a constitutional matter (page 25.5), the point is not a live issue in the proceedings, and in any event is unarguable. Accordingly, the Court may reject the submissions without any need to comply with s.78B of the Judiciary Act 1903.' (Footnotes omitted.) 21 In my view the submissions of the first respondent are soundly based and should be accepted. 22 I am not satisfied that an arguable case for establishing jurisdictional error has been made out. In any event, it appears that the issues sought to be agitated by the applicants, which are capable of giving rise to jurisdictional error, were decided adversely against the applicants in the first review decision and the first Full Court's decision. In those circumstances res judicata and issue estoppel would bar her from again raising those issues in the present proceeding. While the issues sought to be raised by the applicants on the present application might have extended beyond those raised in the first review decision and the first Full Court appeal, the decisions in those cases effectively precluded the applicants from establishing jurisdictional error. The one possible exception is a natural justice ground but I am not satisfied that an arguable case in support of such a ground has been made out. As I have decided to dispose of the application for an order nisi on the grounds that no arguable case for an order nisi has been made out and that any claims capable of giving rise to jurisdictional error are the subject of res judicata or issue estoppel, as was found by North J, it is not necessary for me to consider the respondent's submission that, as the application for a writ of certiorari has been dismissed, there is no basis for a writ of prohibition. 23 For the above reasons I am satisfied that there is no arguable case for an order nisi. In the circumstances it is appropriate to treat the present application as an interlocutory application, rather than a final hearing. I propose to direct, pursuant to the Federal Court Rules O 51A r 5(2) that, O 51A r 5(1) does not apply. 24 Accordingly, I refuse the application for an order nisi for a writ of prohibition and order that the applicants pay the respondents' costs of the application. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.