S1430 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate ("the Magistrate") who, on 26 October 2004, dismissed an application by the appellant pursuant to a Notice of Motion from the Minister to strike out the applicant's application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 8 May 2000. 2 The basis of the Minister's Notice of Motion was that the appellant had failed to comply with an order made by the Magistrate on 8 September 2004. This order was that the applicant file and serve full particulars of each ground of his application together with an affidavit in support on or before 16 September 2004. The order stated that if the applicant failed to comply, the application would be dismissed. The matter was set down for hearing on 26 October 2004. The appellant today informed me that he was in a difficult position because his advisers were not able to comply with the order within the time. However, on 16 September 2004, the appellant filed an affidavit and this was the matter principally considered by the Magistrate on the hearing on 26 October 2004. 3 The Magistrate noted that he had been provided by the respondent with substantial submissions giving reasons why the application should be dismissed on substantive grounds, but the Magistrate considered that to properly investigate those grounds, it would be necessary to consider the Tribunal proceeding in its entirety and that this was not appropriate for an interlocutory application. 4 This appeal before me, being from an interlocutory decision of the Magistrate, requires leave. In considering whether leave ought be granted, I must have regard to the well-established principle that it is necessary for an applicant for leave to establish that the decision was attended by sufficient doubt to warrant the grant of leave. In addition, on an application for leave, it is necessary to consider whether substantial injustice would be caused, assuming that there was merit in the appeal, on the assumption that there had been an error in the judgment of the Magistrate or an error in the determination of the Tribunal. 5 The Magistrate examined in detail, on the basis of the affidavit and the submissions for the appellant, who appeared in person, whether the order had been complied with. The reasons disclosed that the Magistrate had considered the matters raised by the appellant. In particular, the Magistrate considered whether the Tribunal had exceeded its jurisdiction, taken into account irrelevant considerations, misunderstood the law or failed to take into account considerations made irrelevant by the governing legislation. The Magistrate did not consider that this last submission made a great deal of sense, however, it was a formula which he noted had been used in other applications. 6 The Magistrate went on to consider the appellant's allegation that the decision of the Tribunal was tainted by procedural unfairness or bias and that the Tribunal failed to accord the application natural justice in relation to the furnishing of documents referred to in Part B of the Ministerial delegate's decision. After considering these matters, the Magistrate considered that the appellant had not shown any reason why the application should not be dismissed and ordered that the application be dismissed with costs. 7 When the matter came on for hearing before me today, the appellant, in written submissions, which were supplemented by oral statements, principally raised the question of the Part B documents referred to in the delegate's decision, which has been handed to me, and also the failure of the Magistrate to afford natural justice by bringing to the appellant's attention a number of statements concerning country information which were referred to in the decision record. The appellant said that he did not have an opportunity to respond to the adverse country information on Sri Lanka. 8 In relation to the Part B documents, the appellant takes a similar position and says that he has never seen them. In particular, the appellant refers to three documents. These documents are country reports on human rights practices for 1998 published by the US State Department, a document relating to Muslim community concerns in Sri Lanka (Document No. CX1790) and a letter from lawyers for human rights and development relating to Tamils in Columbo (Document No. CX25780). 9 There is nothing before me in the evidence today which indicates that any of these documents concerned any matters particular to the appellant or to any class or group of which the appellant could be identified as a member or otherwise identified. Likewise, in relation to the country information which was referred to by the Tribunal in its decision, there is nothing to establish that the documents related in any particular way to the appellant, either as a person or as a member of a group of persons with any degree of specificity. 10 In these circumstances, I am not persuaded that there has been demonstrated any error of law or any error of principle which would warrant interference with the judgment below or with the decision of the Tribunal. 11 I note that the Tribunal's reasons for decision essentially turned on questions of credibility. The critical passage appears at page 15 of the reasons and reads as follows: "Having regard to the view I have formed of the Applicant's credibility, I do not accept that he was ever arrested, imprisoned or tortured by the authorities in Sri Lanka. I do not accept that the Applicant is presently being sought by the authorities in Sri Lanka, nor do I accept that his father has been taken into custody nor that he has had to pay bribes to the police. I consider that the two letters, translations of which the Applicant produced after the hearing, have transparently been written purely to provide support for the Applicant's claims that the police are searching for him in Sri Lanka. Since I do not accept the evidence of the Applicant (whom I have had the opportunity of observing giving his evidence) in that regard, I do not accept the evidence contained in those letters purporting to corroborate his account." 12 These letters are not in evidence so it is not possible for me to make a determination as to whether, on their face or otherwise, they support the appellant's case. However, in view of the strong credit findings made and the consideration given to the documents, and taking into account that these documents were not ignored by the decision maker, I am not persuaded that there has been any error of law in failing to deal with these documents. They have been referred to. Although the reasoning is not completely transparent, it appears clear that the documents were considered to lack authenticity and any credible weight. 13 The Tribunal member notes that matters were put to the applicant in the course of the hearing and the view was formed that even if his evidence were accepted, it was not considered that he came within the Convention. The Tribunal doubted whether the appellant was sought by police in Columbo and the Magistrate referred to any offences against Sri Lankan law as being matters concerning the enforcement of the law of general application which would not, without more, amount to persecution for a Convention reason. 14 There was a considerable amount of country information referred to by the Tribunal member in the reasons for decision but, as the appellant points out, there is no specific reference to the documents listed in Part B of the delegate's reasons for decision. It is not, however, necessary for a decision maker to set out in detail all the documents which have been taken into account and, in the present case, the documents which have been referred to are documents which appear to lend some support to the reasoning of the Tribunal member. The Tribunal member is not obliged to take into account all of the documents referred to by the delegate and provided that there is some information on which the Tribunal member can proceed, in the absence of any factor or consideration vitiating the reasons for decision, the decision reached in the present case was one which was open on the material before the Tribunal member. 15 Accordingly, the order of the Court is that the appeal should be dismissed with costs on the ground that no basis has been shown for any reasonable argument which would warrant the grant of leave to appeal, which is necessary as a consequence of the matter being interlocutory in nature. I dismiss the application with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.