M1013 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-06-30|Before: Crennan J

REASONS FOR JUDGMENT 1 The prosecutor/applicant ("applicant") seeks relief pursuant to an application for an order nisi for constitutional writswhich has been remitted from the High Court. The applicant was one of the parties joined in a representative proceeding before the High Court: Lie v Refugee Review Tribunal (2002) 190 ALR 601("Lie"). 2 The applicant is a national of Sri Lanka and is Sinhalese. He is literate in both Sinhalese and English and speaks Tamil. He entered Australia on 15 January 1996 on a short stay visitor visa. In his application for a protection visa (Class XA) made on 19 January 1996, which included the applicant's Colombo based wife and two children, he claimed there was a real chance of being persecuted in Pottuvil in the Batticaloa Province by the Liberation Tigers of Tamil Eelam ("LTTE") owing to his refusal to support the LTTE's cause. He also claimed to be in danger of persecution by government authorities because of an imputed political affiliation with the LTTE. 3 On 20 September 1996 a delegate of the first respondent ("the Minister") refused to grant the applicant a protection visa. On 8 October 1996 the applicant sought review of that decision in the Refugee Review Tribunal ("Tribunal"). Prior to the hearing before the Tribunal, the applicant was joined in representative proceedings in this Court. Those proceedings were dismissed by the Full Court on 24 November 1998: see De Silva, Liyanage Pilak Robert Leonard and Others v Minister for Immigration and Multicultural Affairs 89 FCR 502. A hearing was convened before the Tribunal on 21 April 1998 at which the applicant gave oral evidence. On 28 May 1998 the Tribunal affirmed the decision of the delegate not to grant a protection visa. 4 On 7 July 1998 the applicant sought a review of the Tribunal decision in this court under the now repealed Part 8 of the Migration Act 1958 (Cth) ("the Act"). Heerey J dismissed the appeal on 2 February 1999: see Kumara v Minister for Immigration and Multicultural Affairs [1999] FCA 54 ("Kumara"). There is accordingly an issue in this application as to whether the applicant is precluded from pursuing a cause of action based on the Tribunal decision when that action has already been the subject of a Court judgment. The applicant did not appeal from the decision of Heerey J. However, on 30 May 1999, the applicant made applications to the Minister under ss 417 and 345 of the Act. The Minister refused those applications and instead granted the applicant a bridging visa. 5 The applicant was joined in further and separate representative proceedings before the High Court on 10 February 2000: see Lie. On 29 May 2003 the applicant filed an application for an order nisi for prerogative relief in the High Court of Australia. On 25 November 2002, the application for an order nisi was remitted to this court pursuant to s 44 of the Judiciary Act 1903 (Cth). On 16 October 2003 Marshall J ordered, by consent, that the application for an order nisi and the hearing of the return of the order nisi, if granted, be conducted as a single hearing. Such an order is consistent with O 51A r 5(1)(a) of the Federal Court Rules. 6 The draft order nisi names the Tribunal members as parties to the proceedings. However, as McHugh J observed in Re Ruddock; Ex parte Reyes (2000) 177 ALR 484, at 489, it is not proper practice to make a person constituting a Tribunal the respondent in applications for prerogative relief. I shall proceed on the basis that the Tribunal is substituted as a party for the two members named as second respondents. The order nisi calls upon the first respondent to show cause why a writ of prohibition should not be issued prohibiting the Minister from proceeding further with the matter that had been before the Tribunal and decided by it on 28 May 1998, and why a writ of certiorari should not be issued to quash the Tribunal's decision. As Gray J has pointed out in Re application for writs of certiorari and prohibition against the Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Batuwantudawa [2003] FCA 684 there is nothing to prohibit when the Tribunal is functus officio. Application for extension of time 7 Six years have elapsed since the decision of the Tribunal (and five since the hearing of an appeal before Heerey J) and so far as the application for the writ of certiorari is concerned, leave is necessary to have it filed and heard out of time. The respondent has submitted, that the time limit prescribed in O 55 r 17 of the High Court Rules applies to the remitted proceedings insofar as the applicant seeks a writ of certiorari and that unless the time fixed by O 55 r 17 is enlarged, the applicant cannot proceed. The applicant's submissions also proceeded on the basis that the High Court rules applied to this remitted matter. 8 There is a general power to enlarge time under the High Court Rules (O 60 r 6). The principles that govern enlargement of time were explained by McHugh J in Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491. 9 There is also a question as to whether there are any time limits in relation to relief by writ of prohibition or whether delay in seeking that relief is simply a matter to be taken into account in exercising the court's discretion. See generally: Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054 ("Thayananthan"). 10 The Lie matter was heard in October 2001 and judgment was given on 8 August 2002. When the applicant's matter was remitted to this court on 25 November 2002, it was obvious to the remitting judge that persons who joined the representative Lie proceedings would require leave to make an application for any order nisi not least one seeking a writ of certiorari. Her Honour granted leave to persons named in a schedule, which included the applicant, to file an application seeking an order nisi on or before 30 May 2002. Her Honour also granted liberty to apply to the same persons, at any time prior to 30 May 2002 for an extension of the period of time within which to file an application for an order nisi. As mentioned the applicant filed his application on 29 May 2003. Accordingly, it does not seem necessary to further consider the issue of an extension of time as Justice Gaudron has already enlarged the time for the bringing of an application for an order nisi. 11 A convenient summary of the proceedings before the Tribunal is contained in the judgment of Heerey J:see Kumara v Minister for Immigration and Multicultural and Indigenous Affairs [1999] FCA 54.

Res Judicata, Issue estoppel and Anshun estoppel 12 The applicant's counsel urged that the range of grounds available to an applicant for judicial review in the High Court are considerably broader than those that were available under the former Part 8 of the Act such that it is now possible to challenge a Tribunal decision on the grounds of a breach of natural justice or because an exercise of power was unreasonable. The applicant's grounds were framed accordingly and it was argued that the earlier decision of Heerey J did not cover the ground now sought to be argued. Both parties submitted that the estoppel issues raised were complicated. A short judgment had been delivered under the former Part 8 of the Act. The applicant now seeks to raise three claims essentially of denial of procedural fairness. It is convenient to deal with those on the assumption, without deciding, that the applicant is not estopped.

Denial of procedural fairness and related claims 13 Accepting that the applicant is now entitled to pursue his claims under the new Part 8 of the Act (see Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), Item 7(5)) and assuming, without deciding, that the applicant is not estopped from proceeding, the applicant claims in his particulars that he had been denied procedural fairness for three reasons: (i) the Tribunal dismissed two police reports which he states supported his claims; (ii) the Tribunal failed to consider certain country information; and (iii) the applicant was not given an opportunity to comment on a cable from the Department of Foreign Affairs and Trade ("DFAT"). 14 Whilst there were references in the order nisi to other jurisdictional errors, particulars and submissions were mainly concerned with claims of denial of procedural fairness. Furthermore, in oral argument the applicant's counsel said: "It is clear, in my submission, that what is put before your Honour is basically a complaint about procedural fairness. It may spill over into the area of taking account of relevant or not taking account of relevant matters. But in my submission it is a square case of jurisdictional error that's advanced with a main focus on procedural fairness." During the course of oral argument a fourth complaint was raised. This was that the Tribunal did not have on its file a copy of the United States Department Country Report on Human Rights Practices 1995 which was listed in Part B of the delegate's decision. It was claimed that it could be inferred from the way in which the Tribunal reached its decision that it failed to have regard to the issue of abuse in detention dealt with in that country report. This appears to be a claim that the Tribunal made a jurisdictional error in respect of not taking into account relevant matters. It was argued that although this claim was not particularised in the order nisi it fell within the broad claims of jurisdictional error there set out.

Police reports 15 The Tribunal rejected the applicant's claim to a protection visa on the basis that "… the Tribunal is satisfied that the applicant, whilst he may have a genuine fear of returning, does not face a real chance of persecution should he return to Colombo. As a result the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason." 16 The two police reports submitted to the Department were dated 15 and 23 May 1996. The first report, described as "Extract from the Complaint Information Book of Monaragala Police Station" concerned an incident on 27 September 1993. This incident occurred when the applicant was transporting goods for the LTTE under coercion which the LTTE was said to have applied to the applicant because he resided in the LTTE stronghold area in the east. The first police report contained a statement given to police by the applicant giving an account of a police check of goods he was transporting on 26 September 1993. The police had found two boxes of torch batteries and the applicant reported "The Police Officer who checked the said items informed me that these items were banned by the government authorities for transporting to north & east. I was not aware of loading such battaries (sic) and my journey to Colombo and back only to collect charges which are due to me from various customers." The applicant's address was recorded in that report as "Batticaloa Road, Pottuvil", which is in the east. 17 The second police report described as "a true copy of an extract taken from the C.I.D. Book kept at Narahenpita Police Station" and dated 23 May 1996 concerned an incident on 25 October 1993. In the opening section it records the applicant's address thus "Batticaloa Road, Pottuvila while living at the above address, on days of arriving in Colombo, I live at No 410/7 Bauddhaloka Mawatha, Colombo 7." That report records his statement that a search of his lorry by police revealed he was carrying a box containing aluminium powder for the destination of a hardware store in Pottuvil. The statement was recorded by a Police Sergeant and signed as being copied truly and correctly by him. 18 The Tribunal stated in its reasons for decision that the earlier of the reports had been examined "by the document examination unit" and that the unit had stated that police documentation is generally prepared in Sinhala, not English and that it bore a simple wet seal and a 10 rupee postage stamp. The applicant alleged an apprehension of bias or unreasonableness because the Tribunal did not explicitly refer to the document examination unit's conclusion which was: "Conclusion. I can offer no firm opinion on the authenticity of this document, which is returned herewith." 19 Counsel for the applicant submitted that "… here you have a tribunal which, in my submission, has simply put out of consideration material which was advanced as corroborative. There is no reason that the tribunal gives for that material not being potentially corroborative. There was not a stark finding of lying or destruction of the applicant's credit such as to allow the tribunal to say, "I've assessed your credit in such a damaging way that there is nothing that you could say or advance to me from any source at all that could possibly corroborate your claims." 20 Counsel for the applicant also submitted that the Tribunal ought to have allowed the applicant the opportunity to comment on the document examination unit's report. He referred to a number of cases in support of that argument: see for example, WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; NAFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 473. Both cases are distinguishable from this case on their facts. 21 The applicant relied on the copies of police statements being statements he made to police as evidence that he had "been questioned by the Sri Lankan police." The police reports were proffered in support of the applicant's claims that he was found transporting prohibited items twice as a result of which he was detained by military police. The Tribunal noted that the police reports were not obtained until the applicant arrived in Australia and said: "[The police reports] seem to be no more than reports to the police and do not in the Tribunal's view substantiate [applicant's] claims." Read in context, this is a clear reference to the applicant's claims that he suffered detention by military police on two occasions as a result of being coerced to assist the LTTE. In submissions in reply, counsel for the applicant conceded, quite properly, that the police reports could not corroborate the applicant's claims concerning detention. They could only corroborate, as he put it, "significant interaction between the applicant and the authorities." 22 The authenticity or otherwise of the police reports did not determine the Tribunal's decision. The decision was made irrespective of some doubts about the applicant's claims of detention as follows: 'Whilst the Tribunal has some doubts about this period of detention, [the first period claimed] it occurred in 1994. He has lived in Colombo since then and no longer carries on the business he was involved in at that time. Whilst the applicant makes claims of being approached by the LTTE in Colombo the Tribunal is satisfied that he is not at any risk of a similar detention by the LTTE whilst he resides in Colombo." 23 As to the second claimed period of detention, the Tribunal found: "The applicant is no longer travelling to the east. In considering the reasonably foreseeable future, this in itself means that there is no real chance that he will experience any detentions in the future by the police in the course of transporting goods from government to rebel held areas." It is clear from each of these passages the Tribunal never rejected the applicant's claims that he had been questioned twice by the Sri Lankan police. To the extent the police reports corroborated this they were accepted by the Tribunal. In practical terms the Tribunal did not doubt the authenticity of the police reports in their terms; rather it did not accept them as evidence of detention or mistreatment, issues upon which the police reports were wholly silent. This does not constitute a "dismissal" by the Tribunal of these reports as claimed in the order nisi. The claims of jurisdictional error based on alleging the Tribunal "dismissed" the police reports (whether put in terms of denying procedural fairness or acting unreasonably or raising an apprehension of bias) are unarguable on the facts and have no prospect of success.

Country information - Information Request No LKA 155548.E 24 The applicant alleged that there is some evidence favourable to the applicant in this material which came from the Documentation, Information and Research Branch of the Immigration and Refugee Board ("DIRB") Canada and was entitled "Sri Lanka: Current information on the ill‑treatment of Sinhalese who are suspected of supporting the LTTE" and dated 19 November 1993. The document was listed by the delegate in Part B of the record of the decision. The applicant's counsel argued that since the document was not mentioned in the Tribunal's decision it could be inferred that the Tribunal did not read it. It was also alleged in evidence that copies of the Part B documents did "not appear in the RRT file relating to the Applicant". This was a reference to a hard copy file. It was also submitted on behalf of the applicant that had the applicant been aware the Tribunal would not consider the document he would have brought it forward. It was not submitted, nor could it have been, that this document did not fall within the exception in s 424A(3)(a) of the Act considered in VACC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74. That exception was an exception to a statutory obligation on the Tribunal under s 424A(1) to give particulars of certain information to the applicant and to invite the applicant to comment on it. These obligations do not apply to information which is not specifically about the applicant and is about a class of persons of which the applicant is a member. Section 422B of the Act now provides that Division 4, of which s 424A(3)(a) is a part, is an exhaustive statement of the natural justice hearing rules in relation to the matters it deals with. However, s 422B applies only to applications made after 4 July 2002 therefore it does not apply here; see Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), Sch 1, Item 7(5). 25 The document provided information from a doctoral candidate specialising in Sri Lankan affairs at Cornell University in New York as follows: "Current information on the ill‑treatment of Sinhalese who are suspected of supporting the Liberation Tigers of Tamil Eelam (LTTE) is unavailable to the DIRB. However, a doctoral candidate specialising in Sri Lankan affairs at Cornell University in Ithaca, New York, states that there have been linkages between anti‑government Sinhalese groups and the Liberation Tigers of Tamil Eelam (LTTE) (19 Nov. 1993). The source adds that in some cases the Sri Lankan authorities have used alleged LTTE affiliation to legitimize their arrest of anti‑government Sinhalese." 26 There was also before the Tribunal a DFAT cable CL38234 which provided: "Neither we, nor our contacts, have heard any recent plausible reports of Sinhalese suspected of sympathising with the LTTE. There may well have been cases of Sinhalese people who, for financial gain, have given assistance to the LTTE - eg through selling arms - but our contacts are unable to recall any recent examples. There was one report that an individual connected with a recent LTTE attack in Colombo had 'appeared to be Sinhalese', but nothing further has been said on this. May of our contacts seemed to regard our questions on this with almost amusement. They suggested that if a Sinhalese was caught assisting the LTTE (whether out of sympathy or for financial gain), they would be treated in the same way as a Tamil, by being prosecuted under the Prevention of Terrorism Act." 27 A submission was made on behalf of the applicant that if the Tribunal considered both pieces of information together they supported the applicant's claims that Sinhalese persons could be targeted by Sri Lankan authorities on the grounds of suspected links with the LTTE even if such a person were not politically opposed to the Sri Lankan government. In that context it has to be noted that the part of LKA 155548.E relied on by the applicant and quoted above is confined to "anti‑government Sinhalese groups" who are alleged to have "LTTE affiliation." 28 The respondent's counsel submitted that document LKA 155548.E was of marginal relevance in the light of the Tribunal's specific findings that the applicant is not a supporter of the LTTE and he and his family are part of the Sinhalese majority in Sri Lanka. It was the applicant's case that he was not a supporter of the LTTE; his claim of persecution from the LTTE was predicated on that fact that he refused to support the LTTE. Furthermore, there was no evidence from the applicant that he had any political involvement nor did he argue that he was at risk from the government on the grounds of any political involvement. He did not claim to be part of any "anti‑government Sinhalese group." In such circumstances no procedural unfairness arises from the way in which the Tribunal dealt with this information. It may or may not have had access to it through on‑line resources. The information did not deal with any class of persons of which the applicant was a member. The information on its face was not relevant to the applicant's case; it did not apply to him as he had put his case and it could not assist him in the case which he asked the Tribunal to accept. 29 The applicant's claims in this respect are no more than claims seeking to re‑agitate the evidentiary merits of the case on an application for constitutional writs. This is not permitted by the Act and even if this aspect of the applicant's claims might be considered arguable, on analysis, no jurisdictional error or denial of procedural fairness is made out.

Opportunity to comment on DFAT cable 30 The cable in question was the cable referred to above. The applicant complained he was denied procedural fairness in not being given a chance to comment on this cable. Before the delegate the applicant's representatives filed a written submission of twelve pages in length. The cable was dealt with in detail in that submission which the Tribunal had. It was not argued, nor could it have been, that this document was not within the exception in s 424A(3) of the Act referred to above. 31 The respondent's counsel submitted that since the cable was referred to by the delegate the applicant was on notice of it for the purposes of the hearing before the Tribunal. 32 The Tribunal recognised that "there have been a few reported instances of Sinhalese helping the LTTE" and then referred to the cable as supporting a conclusion the Tribunal had reached on the facts that the applicant would not be imputed with support of the LTTE and that there is no real chance that he will face persecution for a Convention reason should he return to Colombo. 33 It is clear from the applicant's written submissions that he regards the apposite part of the cable as being the reference to the hypothesis that a Sinhalese "caught assisting the LTTE" would be likely to be subjected to the same treatment as Tamils. However, the Tribunal found as fact that the applicant is not a supporter of the LTTE a factual finding urged on it by the applicant. The Tribunal also found as a fact that it did not accept the LTTE sought out the applicant in Colombo or has any interest in him. It needs to be remembered the applicant's claim to be at risk of persecution from the LTTE was a claim to a risk of persecution based mainly on prior treatment of him in the east. The Tribunal assessed the applicant's claims to refugee status on the applicant's claims to refugee status on the basis that he has relocated to Colombo. It is not clear therefore how the hypothesis could have any application to the applicant in the future living in Colombo. The applicant was on notice of the cable (which fact was not denied on this application), his representatives had made written submissions about it before the delegate and the Tribunal had those submissions before it. 34 This aspect of the applicant's case illustrates the inherent tension between the applicant's alternative claims to refugee status. The findings of fact he urged upon the Tribunal in the context of a claim of persecution from the LTTE were antithetical to his alternative claim of being at risk of persecution from the authorities. The first claim turned on him being at risk of persecution for the LTTE for not supporting the LTTE. The second claim turned on him being at risk of persecution from the security authorities for supporting or being perceived as supporting the LTTE. No denial of procedural fairness can arise in the circumstances where the Tribunal made findings of fact which were urged upon it by the applicant in respect of one basis for claiming refugee status, which facts then rendered irrelevant country material which the applicant wishes to have taken into account in respect of an alternative and somewhat, although not wholly, inconsistent claim for refugee status. The findings of fact in respect of the applicant's first claim for refugee status took him out of the group referred to in this country material 35 Whilst this claim was arguable, no error, let alone jurisdictional error, is made out.

United States State Department Report 36 The sections of this document referred to and relied upon in oral argument by the applicant's counsel concerned detention mainly of Tamils particularly young Tamils. It was not argued, nor could it have been, that this material was not within the exception in s 424A(3) of the Act. The applicant is not a Tamil. As already explained, despite some doubts about detentions as claimed, the Tribunal noted these occurred in the past and in the east. The applicant no longer lives in the east but is a member of a Sinhalese majority in Colombo. As mentioned already, the Tribunal assessed the applicant's claims to refugee status on the basis that he has relocated to Colombo and also on the basis that he did not support the LTTE. He did not dispute this. As far as can be discerned, the argument was that the applicant's claim to be at risk of persecution from the authorities, should be assessed on the basis he would be treated by them just the same as a Tamil. This was relevant to his alternative claim for refugee status and was largely inconsistent with a finding of fact which he urged on the Tribunal in respect of the first basis on which he put his claim, namely that he was in danger of persecution from the LTTE because he would not support its cause. Since the Tribunal made a finding of fact that the applicant is not a supporter of the LTTE (which he urged on it and which he does not and could not challenge) it cannot be a jurisdictional error for the Tribunal not to mention it in its findings, country material dealing with Tamils and supporters of the LTTE, groups of which he was not a member. Whether or not the Tribunal had access to this report through on‑line resources or not, the fact that it is not mentioned in the Tribunal's decision does not amount to any jurisdictional error. Any failure to mention material, which may be considered to be of little or no relevance or assistance, is not, without more, a jurisdictional error. This claim, which was not particularised in the order nisi, was barely arguable. 37 Because some of the applicant's claims were arguable, though ultimately unsuccessful, the order nisi is granted. As no jurisdictional error or alleged breaches of procedural fairness were made out the substantive order will be that the order nisi is discharged with the applicant to pay the respondent's costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan.

Solicitor for the Respondent: Australian Government Solicitor

Migration Legislation Amendment (Procedural Fairness) Act 2002(Cth)

Migration Act 1958(Cth)ss 424(A)(1)

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