M142/2003 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This application is for leave to appeal from a judgment of the Federal Magistrates Court, given on 18 March 2004 in Applicant M142/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 147. The learned Federal Magistrate made orders refusing an application for an order nisi, and ordering the applicant to pay the respondents' costs, fixed in the sum of $2 000. 2 By s 24(1A) of the Federal Court of Australia Act 1976 (Cth), an appeal is not to be brought from an interlocutory judgment unless the Court or a judge gives leave to appeal. In NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297, a Full Court of this Court held that an appeal from a refusal of an order nisi, in a proceeding in which the High Court of Australia had remitted the application for an order nisi to this Court, pursuant to s 44(1) of the Judiciary Act 1903 (Cth), was an interlocutory judgment. There is therefore no doubt that the judgment of the Federal Magistrate was an interlocutory judgment. It was given in a proceeding in which the High Court remitted to this Court, pursuant to s 44(1) of the Judiciary Act 1903 (Cth), an application for an order nisi in respect of a decision of the Refugee Review Tribunal ('the Tribunal'), the second respondent to this application. The application was further remitted by this Court to the Federal Magistrates Court and dealt with in the judgment the subject of this application. 3 In considering whether to grant leave to appeal, I apply the well-known principles which have been the subject of a line of authority referred to by the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398. In substance, those principles involve the application of two tests. The first relates to the prospects of the proposed appeal. It is whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered. The second test is whether substantial injustice would result if leave were refused, supposing the decision to be wrong. It is clear that the two tests should be considered together. They bear upon each other, so that the degree of doubt sufficient in one case may be different from that required in another. Ultimately, the question is one of discretion that may depend on a balancing of considerations. 4 The applicant is a citizen of Sri Lanka. She applied on 20 August 1997 for a protection visa pursuant to the Migration Act 1958 (Cth). Her application was refused on 16 October 1997 by a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs, the first respondent to this application). She applied to the Tribunal for review of that decision. On 16 August 2000, the Tribunal affirmed the delegate's decision. 5 Somehow, the applicant's case came to be regarded as associated with proceedings in the High Court of Australia, in which two classes of persons alleged to have been denied procedural fairness by the Tribunal were concerned. The High Court's judgment in relation to those two classes of persons is dealt with in Muin v Refugee Review Tribunal [2002] HCA 30 (2002) 190 ALR 601. The two classes are known respectively as the Muin and Lie classes. In each case it was established, by means of an agreed statement of facts, that the person concerned had received a communication from the Tribunal with respect to the documents it either proposed to take into account or had taken into account. The person concerned had been misled by that communication. If not misled, the person could have taken a course that might have brought about a different result in his or her case. 6 The material that is filed in support of the application for an order nisi that gives rise to the present case does not bring into consideration any of those elements that were found in the Muin and Lie cases. The claim here is that the Tribunal relied on information from various sources about the circumstances prevailing in Sri Lanka at the time, without giving to the applicant any adequate opportunity to respond to the evidence contained in that material. 7 In his reasons for judgment, the Federal Magistrate summarised briefly the material that was before the Tribunal. He referred to the fact that the Tribunal had before it written submissions made to it on behalf of the applicant by a solicitor then acting for her. The Tribunal also had her oral evidence given in a hearing on 30 May 2000. 8 It is plain from an examination of the Tribunal's reasons that it did have access to, and did make reference to, other material about the circumstances in Sri Lanka. What is not at all clear is that it did so without giving the applicant an adequate opportunity to comment on such material or to refute it if she could do so. The Tribunal's reasons are short. They disclose that it rejected the applicant's evidence that she was threatened by an organisation called the JVP on any occasion between 1987 and 1994, and that her home was destroyed by the JVP after the 1994 general elections. It rejected that evidence on several grounds which were explained, and which the Tribunal summarised in its description of the evidence, as inconsistent, implausible and contradictory. It did note, in the course of its reasons for decision, that the applicant had conceded to it in the course of the hearing that there may not be much JVP activity now. This tends to suggest that the Tribunal did at least give to the applicant some opportunity to comment on material on which it proposed to rely about the circumstances in Sri Lanka. 9 What the reasons of the Tribunal make clear is that it did not reject the applicant's claim solely on the basis of such material. It rejected her claim largely because it did not accept her own evidence, because of the quality of that evidence itself, rather than because of any comparison of that evidence with any other material. It found that the applicant had given inconsistent dates about when events she described occurred. It regarded as implausible evidence by the applicant that she had been threatened, given what it found to be her relatively low level of political activity, and found to be contradictory much of her evidence about why she feared being persecuted on returning to Sri Lanka. 10 In short, the Tribunal did not rely solely on evidence other than that provided by the applicant. To the extent to which it did, it appears to have given her an opportunity to deal with that evidence in the course of the hearing. 11 In the material that she placed before the High Court, and which was before the Federal Magistrates Court, the applicant made no detailed analysis of the Tribunal's reasons for the purpose of identifying material on which it relied, on which she might have said that she had had no opportunity to have her say. She made no attempt to deal with the circumstances of the hearing, and to provide material suggesting that at the hearing she was not given a proper opportunity to comment on the material relied on by the Tribunal. 12 The applicant made no attempt to say what she would have done if she had been notified of any adverse material, and what material she might have put to the Tribunal that might have brought about a different result. Relying on Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 (2003) 195 ALR 502, followed in Applicant M115/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1448, the Federal Magistrate made a finding in the following terms: 'There is no material before me of a kind which would lead the court to conclude that the outcome of the RRT decision would have been different had the applicant been given the opportunity to comment on country information.' 13 The Federal Magistrate also drew attention to the fact that the applicant had not filed any additional material pursuant to a direction made by a judge of this Court before the matter was remitted to the Federal Magistrates Court. His Honour was also concerned about the question of extension of the time limits under the High Court rules in respect of the applications for certiorari and mandamus, which were part of the order nisi that the applicant sought. 14 In the circumstances, I am not able to detect any error on the part of the Federal Magistrate in dealing with the applicant's application for an order nisi. It seems to me that his Honour's decision was perfectly correct on the material before him, and that the applicant would not have been able to advance the case significantly, even if she had chosen to provide further material. It follows that the judgment below is not attended by sufficient doubt to warrant its reconsideration. 15 Because of the nature of the case, the time that has elapsed between the Tribunal's decision and the application to the High Court, and the consequent necessity for a significant enlargement of the time limits provided in the High Court rules, and because of my own analysis of the Tribunal's reasons, I conclude that even if the judgment below were wrong, there would be no substantial injustice if leave were refused. As I see it, it is extremely unlikely that the applicant would have any real prospect of establishing jurisdictional error on the part of the Tribunal. She would need to establish such error in order to succeed. 16 For those reasons, the application for leave to appeal must be dismissed. The orders of the Court will be: