SDAC v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicants in these proceedings, citizens of Sri Lanka, are a man, his wife and their daughter. They arrived in Australia on 4 November 1997 and on 29 January 1998, they lodged an application for protection (Class AZ) visas with the Department of Immigration and Multicultural Affairs. That application was unsuccessful. On 13 January 1999, a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refused to grant them the visas that they had sought. On 3 February 1999, the applicants applied to the Refugee Review Tribunal ("the Tribunal") for a review of the Minister's decision. Once more they were unsuccessful. The Tribunal affirmed the Minister's decision on 12 September 2000. 2 The applicants next sought review of the Tribunal's decision by the Federal Court. On this occasion they were successful: Schwallie v Minister for Immigration and Multicultural Affairs [2001] FCA 417. On 11 April 2001, I set aside the decision of the Tribunal and remitted the matter back to the Tribunal to be determined according to law. I had concluded that the Tribunal had not complied with the provisions of s 424A of the Migration Act 1958 (Cth) ("the Act"), in that it had failed to provide a written invitation to the applicants that would have given them the opportunity to comment on material upon which the Tribunal had relied; material which was adverse to their claims. I was of the view that the ground of review in par 476(1)(a) of the Act (as then in force) had been made out. The application was reconsidered by the Tribunal, differently constituted, but, once again, the applicants were unsuccessful. On 21 January 2002 the Tribunal affirmed the decision not to grant the applicants the protection visas that they had sought. Once more, the applicants have applied to this Court to review the most recent decision of the Tribunal. 3 As only the applicant husband had made specific claims under the Refugees Convention, the Tribunal, for convenience, referred to him in its reasons as the applicant. I will do likewise. The applicant's primary claim was that, should he be returned to Sri Lanka, he would fear persecution from members of the Peoples Alliance party ("the PA") for his political opinions because of his membership of the United National Party ("the UNP") and his association with senior members of the UNP. Initially, his association with the UNP was based upon his role as the caterer for the party's functions but later it was because of his employment by a Mr Cooray who was, at one time, a minister in the UNP government. The applicant also claimed that he is now afraid of Mr Cooray. 4 The Tribunal in its reasons, first addressed the issue of the Tamil ethnicity of the applicant's wife. In a carefully structured set of the reasons, the Tribunal considered and rejected the proposition that there was a real chance of the applicant or his wife or his daughter being persecuted because of his wife's alleged Tamil background if they were to be returned to Sri Lanka now or in the reasonably foreseeable future. 5 The Tribunal also dealt with the applicant's classification as a Burgher. As to this, the Tribunal said: "The Tribunal does not accept that given the small number of Burghers remaining in Sri Lanka that they are a significant component of the "entourage of the ruling elite" and that their ethnicity and religion (most are Christians like the applicant) are part of the characteristics which distinguish this purported social group. The Tribunal does not accept that the "entourage of the ruling elite" is a group which shares certain characteristics or elements which unite them and makes them cognisable in Sir Lankan society. It therefore finds that the applicant was not persecuted because he was a member of this particular social group." 6 The Tribunal next considered the question of the applicant's political opinions. Although it was prepared to accept that the husband had joined the UNP in 1990 and that, up until 1994, he had assisted the party by putting up posters and banners, it did not accept that those activities nor his employment by Mr Coorey gave the applicant a political profile; it did not consider him to be at risk of persecution for reason of his political opinions. The Tribunal went so far as to find that the applicant had fabricated certain of his claims. 7 As I have earlier noted, the Delegate's decision was made on 13 January 1999 and the Tribunal's decision in issue here was made on 21 January 2002. 8 In the amended application for an order of review that was filed in this Court on 5 September 2002, the applicant listed one ground of review only, which was in the following terms: "The Applicant was denied procedural fairness in that he was not made aware of the substance of the documentary information (Country Information) which was received between the time of the Delegate's decision and the Tribunal's decision and which contained adverse material." 9 It was claimed that this documentary information was adverse to the interests of the applicant and that he had been denied the opportunity of answering it. It was submitted that a breach of the common law requirement of procedural fairness constituted jurisdictional error which allowed this Court to intervene. That submission must be rejected. In NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 ("NAAV"), von Doussa J addressed the question of procedural fairness and the provisions of s 474 of the Act. His Honour said at [648]: "… the natural justice requirements of procedural fairness were not met. I agree that the statements made by the Tribunal, and the Tribunal's subsequent use of important documents that were not brought to the attention of NAAV, had the affect (although unintended) of misleading him. However, in my opinion, the rules of procedural fairness have been excluded by s 474. It follows that the Tribunal's decision was lawfully made." In separate judgments, the Chief Justice and Beaumont J agreed with these remarks of von Doussa J. However, and notwithstanding the decision in NAAV, I turn to consider the merits of the present application. 10 In the course of its reasons for its decision, the Tribunal referred to three cables from the Department of Foreign Affairs and Trade ("DFAT"). Counsel for the applicant, Mr Clisby, said that his search of the appeal book failed to reveal any indication that the applicant had been forewarned either formally or informally of the intention of the Tribunal to make reference to these items of material. The cables to which the Tribunal referred were as follows: