M159 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a judgment of Goldberg J delivered on 6 February 2004: M159 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 131. By that judgment, his Honour, in effect, refused to grant an order nisi seeking what are generally described as "constitutional writs". His Honour's judgment was interlocutory. For that reason, the applicant requires leave to appeal. 2 The matter came before Goldberg J on remitter from the High Court. It was commenced in that Court on 26 May 2003 when the applicant sought an order nisi for the issue of writs of mandamus, prohibition and certiorari and ancillary injunctive relief in respect of a decision of the Refugee Review Tribunal ("the Tribunal"). On 30 June 2000 the Tribunal had affirmed the decision of a delegate of the then Minister for Immigration & Multicultural Affairs ("the Minister") who had refused the applicant a protection visa. 3 The draft order nisi filed in the High Court by the applicant contained what might be described as "the usual grounds", closely mirroring the language of s 476 of the Migration Act 1958 (Cth) ("the Act"), as it then stood. The grounds were singularly uninformative. However, they were not subsequently expanded or amended. 4 In an affidavit filed in support of the application for the order nisi, the applicant made it clear that he relied upon the High Court's decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601 as the basis for his claim, and also as providing the explanation for the lengthy delay that had occurred between the Tribunal's decision and the application to the High Court. The matter was remitted by the High Court to this Court on 25 November 2002. 5 The background to this application can be stated briefly. The applicant is a Sri Lankan national, and is of Sinhalese ethnicity. He arrived in Australia on 12 January 1998. On 23 February 1998 he lodged an application for a protection visa. The application was rejected on 27 April 1998. On 5 May 1998 the applicant sought merits review of that decision by the Tribunal. 6 The applicant's claim to protection was based solely upon political grounds. He relied upon his prior connection with the activities of the United National Party ("UNP"), Janatha Vimupthi Peramuna ("JVP") and the Liberation Tigers of Tamil Eelam ("LTTE"). 7 The Tribunal concluded that the applicant was not a credible witness. It found that there were a number of inconsistencies between what he had told the delegate, and the account he gave at the hearing before it. The Tribunal also found that there were inconsistencies between the various accounts that he gave, and the country information before it. It noted his claim that his parents had been strong supporters of the UNP and that in 1987 he had been forced to undergo indoctrination for the JVP. It also noted his claim that in 1988, JVP members had come to his house, shot his parents, and destroyed their property because his parents supported a particular UNP faction. 8 The applicant also made a series of claims regarding threats that had been made by opponents of the UNP, including the JVP. He claimed that he had been regarded as a supporter of Tamil extremism, and alleged that the security forces had mistreated him. He produced several letters from relatives in Sri Lanka written in the period shortly before the Tribunal hearing that were said to demonstrate a continuing interest on the part of the authorities in his whereabouts. 9 The Tribunal referred to a body of country information in relation to both the JVP and LTTE. It set out a brief history of the JVP which had been formed in 1964, and then stated: "The evidence is overwhelming that there has been a complete change in the situation vis-a-vis the JVP from the situation which prevailed in the late 1980s when the applicant was in Sri Lanka; and there is general agreement among informed opinion that the JVP was effectively subjugated by March 1990, following two insurrections in early 1988 and late 1989 and a massive and brutal response by the government during which JVP leader Rohan Wijeweera and his deputy Upatissa Gamanayake were killed. Since then, as can be seen from the reports below, the evidence points conclusively to the demise of the JVP as a force capable of conducting a campaign of violence and terror." 10 The Tribunal concluded that the JVP had been neutralised as a major political force by about 1989, and noted that it was no longer a proscribed organisation but a legal political party with parliamentary representation. In August 1994 it had won one seat in the parliamentary election. To the extent that the applicant claimed to fear persecution, whether by the JVP, or because of some association with that organisation, the Tribunal rejected that claim as not being well-founded. It considered his claim that the JVP had made threats against him after 1993 as "far fetched and implausible". It rejected his claims based upon his support for the UNP, and his supposed links with the LTTE. It found that the letters sent by his relatives contained information that was "unreliable" and inconsistent with the country information. 11 Before Goldberg J the applicant abandoned any reliance upon Muin. He submitted instead that the Tribunal erred in its treatment of the evidence relating to the JVP. He argued that the Tribunal's apparent acceptance of his claim that his parents had been killed in 1988 by the JVP gave rise to a sound basis for the existence of a well-founded fear of persecution. He submitted that, having overcome that hurdle, the Tribunal was obliged to make inquiries into the status of the JVP as at 2000, when it came to make its decision. He complained that the Tribunal had confined its investigation into the JVP to the period between about 1989 and 1995, and had not had regard to more recent information. This gave rise to jurisdictional error because its statutory responsibility was to determine whether the applicant had a well-founded fear of persecution as at the date of the decision, and that responsibility could not be discharged without ensuring that the country information upon which it relied was up to date. 12 Goldberg J dealt with that submission in the following way. "[19] I reject the submission that in the circumstances of the case before it the Tribunal had an obligation to make any further inquiries in relation to the situation of the JVP as at, or shortly prior to, the date of handing down its decision. It was not for the Tribunal to make the applicant's case for him, but rather it was for the Tribunal to decide the matter on the basis of the submissions and claims made by the applicant in the material available to it: see generally SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90, at [80]; Abebe v the Commonwealth (1999) 197 CLR 510 at 576; Prasad v Minister for Immigration & Multicultural Affairs (1985) 6 FCR 155 at 169-170; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1522 at par [25] and Rahman v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1277 at par [29]. [20] In fact, the Tribunal made a comprehensive analysis of a considerable body of JVP material and took into account the submissions and claims made by the applicant in relation to the JVP and such evidence as he produced in relation to it. The Tribunal did not accept as plausible the letters relating to the JVP and it was open to the Tribunal to so find. Any attempt by the applicant to suggest that the Tribunal´s findings in relation to the letters was not open to it must be seen as an attempt merely to seek to re-agitate the merits of the matter. [21] I am prepared to accept for the purposes of the argument that the Tribunal was required to make a finding as to whether the applicant had a well-founded fear of persecution as at the date of the decision. Properly analysed, the Tribunal´s findings were that at some point in time prior to the date of its decision, and well before the period of two years prior to the decision, the JVP had ceased to be a forceful entity which might be the cause of persecution of the applicant. As can be seen from the extracts in the Tribunal´s reasons, to which I have referred above in pars [10]-[12], the Tribunal made findings that the JVP had ceased during the 1990s to be the force for terror and persecution that it had been in the past. It was clearly open to the Tribunal, on the material before it, to make such a finding. [22] When the Tribunal found that it did not accept the applicant's fears of persecution either by or because of some association with the JVP, and that the applicant's claimed fears were not consistent with the country information, it was not making a finding that the applicant did not have a fear of persecution, but rather that any such fear was not well founded on an objective basis. That said, there is no inconsistency between the Tribunal's finding that it accepted that the applicant's parents were killed in 1988 by the JVP and that the applicant did not have a well-founded fear of persecution on the basis of actual or implied political opinion either for or against the JVP. [23] The applicant's submission confuses and elides the two matters which need to be determined in relation to whether there is a well-founded fear of persecution, namely whether there is a subjective fear on the one hand and, on the other hand, whether that subjective fear is objectively well founded. I am satisfied that the Tribunal made a finding that well before the date of the decision there was no objective basis for a fear of persecution either by or because of the JVP, and that its finding continued to be relevant up to the date of the decision. By the time of the decision there was no material upon which the Tribunal relied that would alter its earlier finding that the applicant did not have an objectively well-founded fear of persecution by the JVP. [24] Accordingly, there is no obligation on the Tribunal to make any further findings as at the date or approaching the date of its decision. The material relied upon by the Tribunal was not out of date, nor was it inadequate. I am satisfied that on a careful reading of the decision and reasoning of the Tribunal there is no reviewable error disclosed. The application will be dismissed." 13 The applicant now seeks leave to appeal from his Honour's judgment. The grounds set out in the proposed notice of appeal are as follows: "2 The learned Justice erred in failing to find that the RRT had misconstrued and misapplied the definition of 'refugee', as set out at Article 1A(2) of the Refugees Convention, by finding that the applicant did not have a well founded fear of persecution for a Convention reason, without consideration of the applicant's likely subjective state of mind given the RRT decision accepted his parents may well have been killed by the JVP in 1988. 3. The learned Justice erred in falling to find that the RRT had not complied with requirements essential to its exercise of power, in that while the RRT was required to make its decision with reference to facts as they exist when its decision is made, together with assessment into the reasonably foreseeable future, the RRT references no Country Information on JVP activities later than April 1994, more than 6 years prior to its decision of 30 June 2000. 4. Additionally and/or alternatively, the learned Justice erred in finding that the RRT, when faced with an absence of Country Information, was under no obligation in the fair exercise of its decision making power, to make its own inquiries, or have inquiries made." 14 The principles that govern leave to appeal from an interlocutory judgment are well established. They are set out in the judgment of the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In substance, the applicant must show that the decision at first instance was attended with sufficient doubt to warrant it being reconsidered. He must also show that substantial injustice would result if leave were refused, supposing the decision at first instance was incorrect. These tests are qualified in circumstances where substantive rights, rather than points of practice, are at issue. I accept that this is a case in which leave would more readily be granted because substantive rights are in issue. 15 Mr Hamilton, who appeared for the applicant before Goldberg J, and also before me, submitted that his Honour fell into error when he concluded, at [19] that the Tribunal had no obligation, in the circumstances of the case before it, to make any further inquiries in relation to the situation of the JVP as at, or shortly prior to, the date of handing down its decision. He submitted that there were passages in judgments not cited by his Honour that suggested that a duty to make further inquiries did exist in the circumstances of this case. 16 Mr Hamilton referred first to Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [62] per Gaudron J where her Honour said: "For the purposes of this case, it is necessary to note three important matters with respect to the Convention definition of "refugee". The first is that the Convention looks both to the position of the individual and to the conditions which pertain in the country of his or her nationality. More precisely, the question whether a person has a well-founded fear of persecution is one that has both subjective and objective elements and necessitates consideration of the mental and emotional state of the individual and, also, the objective facts relating to conditions in the country of his or her nationality." (footnote omitted) 17 It is difficult to see how this passage supports Mr Hamilton's contention. The requirement that the Tribunal have regard to "the objective facts" relating to conditions in the country of the applicant's nationality to which her Honour referred does not seem to me to impose any general obligation upon the Tribunal to carry out inquiries regarding any specific matter, and sheds no light upon the circumstances in which, exceptionally, it might be necessary for it to do so. 18 The second case to which Mr Hamilton referred was Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293, a judgment of a Full Court of this Court. Mr Hamilton referred to [31] in which the Full Court said: "It is also clear that the requirements of natural justice in any particular instance are to be determined in the relevant statutory context: see Kioa v West (1985) 159 CLR 550 at 584-585, 611. This means that it may be misleading, at least in Australia, to discuss 'natural justice' as if that term always has a fixed meaning in every statutory context. So, for example, the fact that an obligation to afford natural justice does not normally imply a duty upon the decision-maker to make inquiries (see Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206 at 213-214) does not mean that there may not be a duty to inquire in relation to a particular issue under a particular statute. Inquiries in relation to 'fitness to plead' may be an obvious example: see Eastman v The Queen (2000) 203 CLR 1." 19 The Full Court recognised, in this passage, that there may be cases where the obligation to afford natural justice will require a decision-maker to make inquiries. The example given by the Court of the circumstances in which such a duty may, exceptionally, arise is not illuminating. Questions of "fitness to plead" are almost sui generis, and do not provide great assistance in understanding the scope of any relevant exception. 20 The last of the three cases upon which Mr Hamilton relied was Azzi v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 48 where Allsop J cited a number of authorities in support of the proposition that generally a decision-maker is entitled to rely upon materials supplied by the applicant and has no duty to seek additional material. His Honour noted that while it was no part of the duty of the decision-maker to make the applicant's case for it, there might be cases in general administrative law in which a decision-maker who unreasonably fails to ascertain relevant facts known to be readily available will be taken to have exercised the decision-making power improperly. His Honour referred in particular to Luu v Renevier (1989) 91 ALR 39 at 50. However, Allsop J noted that the genesis of the doctrine that there might be a duty to enquire, failing which the decision maker may constructively have failed to exercise jurisdiction, was a series of cases that arose in the context of judicial review under the Administrative Decisions (Judicial Review) Act 1977(Cth). Review under that Act encompassed a range of grounds not available at that time under s 476 of the Migration Act. 21 It can be accepted for present purposes that there will be cases of an exceptional or special character whereby the Tribunal will be obliged to make further inquiries in relation to matters raised by an applicant in support of his or her claim. The question is whether it is reasonably arguable that the present case is such a case. 22 Goldberg J gave careful consideration to the treatment given by the Tribunal to the country information relating to the JVP. That information is set out in considerable detail at pp 9-12 of the Tribunal's reasons for decision. The Tribunal said, inter alia, regarding the JVP: "The evidence is overwhelming that there has been a complete change in the situation vis-ŕ-vis the JVP from the situation which prevailed in the late 1980s when the applicant was in Sri Lanka; and there is general agreement among informed opinion that the JVP was effectively subjugated by March 1990… the evidence points conclusively to the demise of the JVP as a force capable of conducting a campaign of violence and terror… "…Between September 1989 and January 1990, the Sri Lankan security forces effectively destroyed the JVP as a political force… The summary dispatch of the top JVP leadership and the arrest of thousands of its supporters and sympathisers resulted in the total collapse of the JVP as such…" 23 Mr Hamilton fixed upon a passage in the Tribunal's reasons noting that notwithstanding the evidence that the JVP had been destroyed by 1990, there was no lack of reports that it was regrouping. Apparently, a Professor Manor of Sussex University had expressed that view. However, a DFAT report of 17 December 1993 described his report as "simplistic" and rejected his conclusion in the clearest of terms. The latest DFAT report considered by the Tribunal (27 February 1995) concluded the security authorities were no longer interested in pursuing old cases involving minor connections to the JVP, or in detaining persons with vague past links to that organisation. 24 Whatever scope there may be for imposing a duty to carry out further inquiries in cases that are "exceptional", it is difficult to see how any such duty can be said to arise in the light of the country information that was before the Tribunal in this case. The Tribunal had before it a wealth of material that suggested that however great a threat the JVP may have been in the past, it had been defunct, at least for all practical purposes, since 1990. The organisation was no longer proscribed, and had even achieved a level of respectability by having a Parliamentary representative. If the applicant sought to rely upon his past links with that body, and in particular upon its actions in causing the death of his parents, as the basis for a well-founded fear of persecution in the future, it was incumbent upon him to place material before the Tribunal that suggested that the organisation had somehow revived and once again become a potent source of danger. It was not the Tribunal's duty, having regard to the overwhelming evidence that the JVP no longer functioned as anything but a shadow of its former self, to engage in any such further inquiry. 25 This was not a case of the kind referred to by Merkel J in Anthonypillai v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 136 when his Honour dealt with s 427(1)(d) of the Act, and noted at [14] the possibility that there might be such a duty if an applicant had been misled by the Tribunal into believing that such further inquiries would be undertaken. 26 It follows that I can see no basis for challenging the decision of Goldberg J upon the grounds set out in the proposed notice of appeal. His Honour's analysis of the sole ground relied upon in support of an order nisi was squarely based upon well-established authority, and his decision to refuse the order nisi was, in my view, plainly correct. 27 I should add that Goldberg J did not find it necessary to consider whether there should be an extension of time in which to seek an order nisi having regard to the period of almost three years that had elapsed between the Tribunal's decision, and the filing of the application to the High Court. Had the applicant been able to bring himself within the Muin principles, there might have been some legitimate basis for extending time. However, his abandonment of any reliance upon those principles would have made it almost inconceivable, having regard to what fell from McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-496, that an extension of time would have been granted. 28 It follows that the application for leave to appeal must be dismissed. The applicant must pay the respondent's costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.