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Federal Court of Australia |
Last Updated: 27 April 2004
FEDERAL COURT OF AUSTRALIA
Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489
MIGRATION- Application for protection visa
refused – Refusal upheld by Refugee Review Tribunal –
Application to High
Court for orders nisi in respect of Tribunal’s
decision remitted to Federal Court – Application for enlargement
of
time in which to seek constitutional writs – Applicable
principles - Relevance of prospects of success if enlargement
granted.
Migration Act 1958
s 417
Re Ross; Ex parte The Australian
Liquor, Hospitality and Miscellaneous Workers Union [2001] FCA 770; (2001) 108 FCR 399
applied
Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177 ALR
491 applied
Applicant A2 of 2002 v Minister for Immigration and
Multicultural and Indigenous Affairs [2003] FCA 576 cited
Applicant
A16 of 2002 v Minister for Immigration and Multicultural and Indigenous
Affairs [2003] FCA 567 cited
Applicants A64/2002 v Minister for
Immigration and Multicultural and Indigenous Affairs [2003] FCA 568
cited
Applicant M29 of 2001 v Minister for Immigration and Multicultural
and Indigenous Affairs [2003] FCA 1266 considered
Applicant VUAD of
2003 v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 1331 considered
Daniel v Minister for Immigration and
Multicultural and Indigenous Affairs [2004] FCA 21
considered
Applicant M216/2002 v Minister for Immigration and
Multicultural and Indigenous Affairs [2003] FCA 931 considered
Chan v
Minister for Immigration and Multicultural and Indigenous Affairs [1989] HCA 62; (1989) 169
CLR 379 cited
Saha v Minister for Immigration and Multicultural
Affairs [2001] FCA 520 considered
Raheem v Minister for Immigration
and Multicultural Affairs [2001] FCA 940 cited
Ratnayake v Minister
for Immigration and Multicultural Affairs (unreported, Federal Court 14
September 1998) considered
Minister for Immigration and Multicultural
Affairs v Indatissa [2001] FCA 181 applied
Minister for Immigration
and Multicultural Affairs v Al-Miahi [2001] FCA 744 applied
WAEE v
Minister for Immigration and Multicultural and Indigenous Affairs [2003]
FCAFC 184 cited
NACM v Minister for Immigration and Multicultural and
Indigenous Affairs [2004] FCAFC 64 cited
SGDB v Minister for
Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 59
cited
SBBA v Minister for Immigration and Multicultural and Indigenous
Affairs [2003] FCAFC 90 considered
SDAQ v Minister for Immigration and
Multicultural and Indigenous Affairs [2003] FCAFC 120
considered
Applicant S422 of 2002 v Minister for Immigration and
Multicultural and Indigenous Affairs [2004] FCAFC 89
considered
VIVEKANANDA
HARI DAS and MAHALEDCHIMY HARI DAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL
AFFAIRS and ADOLFO GENTILE Constituting
the REFUGEE REVIEW
TRIBUNAL
V 177 OF 2003
SUNDBERG
J
27 APRIL 2004
MELBOURNE
|
VIVEKANANDA HARI DAS and MAHALEDCHIMY HARI
DAS
APPLICANT |
|
|
AND:
|
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT ADOLFO GENTILE Constituting the REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT |
THE COURT ORDERS THAT:
1. The application for an order nisi be dismissed.
2. The applicant pay the first respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
AND:
|
REASONS FOR JUDGMENT
1 The applicants, who are husband and wife, are Tamil citizens of Sri Lanka. They arrived in Australia on 9 August 1995, and later that year applied for protection visas. The applications were refused by a delegate of the first respondent (the Minister) on 18 March 1997. The delegate’s decision was affirmed by the Refugee Review Tribunal on 25 September 1998. On 8 May 2001 the applicants commenced proceedings in the High Court pursuant to s 75(v) of the Constitution seeking orders nisi in respect of the Tribunal’s decision and a decision made by the Minister under s 417 of the Migration Act 1958 (the Act). Insofar as it concerned the Tribunal’s decision, the application was remitted to this Court on 28 November 2002 together with an application by the applicants to amend the grounds upon which they sought the orders nisi. On 23 April 2003 leave to amend was granted. The application was supported by an affidavit sworn by the first applicant. It is convenient to refer hereafter to him as "the applicant".
2 The High Court Rules require an application for a writ of mandamus to be made within two months of the date of the refusal to hear or within such further time as is, under special circumstances, allowed by the Court: Order 55 rule 30. An application for a writ of certiorari is not to be granted unless the application is made not later than six months after the date of the decision in question: Order 55 rule 17(1). In respect of remitted proceedings this Court has a discretion to extend the periods prescribed by the High Court Rules: Re Ross; Ex parte The Australian Liquor, Hospitality and Miscellaneous Workers Union (2001) 108 FCR 389 at [39]. Cf ss 23 and 38(2) of the Federal Court of Australia Act 1976 and Order 60 rule 6(1) of the High Court Rules.
3 In Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [13] McHugh J, considering the High Court’s power to extend time under Order 60 rule 6, said:
"In Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 I said that the grant of an extension of time under O 60 r 6 is not automatic. This is as true of an application for constitutional relief under s 75(v) as it is in respect of an appeal. I also said that, when the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. A similar inquiry must be made when the proceeding is for an extension of time in which to commence s 75(v) proceedings to quash an act, decision or judgment. A ‘case would need to be exceptional’ before the time for commencing proceedings was enlarged by many months. The explanation for such a delay is also a relevant consideration."
After referring to the facts of that case, at [15] his Honour continued:
"An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions."
4 In Marks the applicant sought to quash the decision of a tribunal made seventeen months before he filed his application for relief. McHugh J continued at [16]:
"Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12, ‘the rules of court must prima facie be obeyed’. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court."
5 His Honour’s observations in Marks have been applied in many cases in which an extension of time has been sought to challenge decisions of the Tribunal by applications for orders nisi remitted to this Court. See, for example, Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576, Applicant A16 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 567 and Applicants A64/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 568.
6 The Tribunal’s decision was given on 25 September 1998. The two month period within which the mandamus application should have been made expired on or about 25 November 1998. The application to the High Court was made on 8 May 2001. Accordingly an extension of time in the order of two and a half years is involved. The extension in respect of the certiorari application is in the order of two years and four months. In each case the extension is much longer than the seventeen months delay that McHugh J in Marks required the presence of "very exceptional circumstances" to excuse.
7 The applicant submitted that it was important to take into account what had happened in the interval between the Tribunal’s decision and the application to the High Court in May 2001. He said he was "without sufficient means and was unable to obtain any other form of support" to seek a review of the Tribunal’s decision within the time permitted. He therefore applied to the Minister under s 417 of the Act for a more favourable decision than that of the Tribunal. That application was made on 25 October 1998. On 11 June 1999 the Minister declined to act under s 417. On 24 June 1999 another s 417 application was made, and representations in respect of this application were made to the Minister on the applicant’s behalf by a member of Parliament. On 14 July 1999 the applicant sought review in the High Court. It does not appear whether the review was of the Tribunal’s decision or the Minister’s s 417 decision or both. The probability is that it was of both decisions, because on 23 November 1999 part of the proceeding was remitted to this Court. The applicant says he was advised that the representations of the member of Parliament in support of his second s 417 application would be considered provided he discontinued the proceedings before the High Court and the Federal Court. He therefore instructed his solicitors to discontinue these proceedings, and they were dismissed by consent on 30 and 31 October 2000. In April 2001 the applicant was informed by the member of Parliament that the Minister had declined to act under s 417. On 8 May 2001 he commenced proceedings in the High Court for an order nisi in respect of the Minister’s decision under s 417 and the Tribunal’s decision of 25 September 1998. The sequence and timing of the events described above can more readily be seen from the following chronology:
Tribunal’s decision 25 September 1998
Section 417 application to Minister 25 October 1998
Section 417 application refused 11 June 1999
Second s 417 application 24 June 1999
Application to High Court 14 July 1999
(remitted to Federal Court)
Dismissal of High Court and 30/31 October 2000
Federal Court proceedings by consent
Second s 417 application refused 9 April 2001
Second application to High Court 8 May 2001
(remitted to Federal Court)
8 In Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 Weinberg J considered an application for an extension of time in which to apply for mandamus and certiorari. After referring to Marks his Honour said at [10] and [12]:
"In the present case, the decision of the RRT, which is impugned, was made on 26 November 1999. The application to the High Court for an order nisi was not made until approximately sixteen months later, on 29 March 2001. The only explanation proffered for the delay was the request that the applicants made, in October 2000, some eleven months after the RRT’s decision, for ministerial intervention pursuant to s 48B and s 417 of the Act.
...
In my view, the delay has not been adequately explained. I agree entirely with the comments of von Doussa J regarding this very same issue in Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at pars [8]–[10]. There was nothing to prevent the applicants from pursuing their application for constitutional writs in the High Court while, at the same time, seeking ministerial intervention. The absence of any adequate explanation would, of itself, be sufficient to refuse the application for an extension of time."
9 In Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1331 Weinberg J again dealt with a s 417 request put forward as an explanation for the delay in applying for constitutional writs. His Honour said at [18]-[20]:
"It was submitted on behalf of the respondent that the applicant’s request under s 417 should be viewed as an indication that he was prepared to accept the RRT’s decision as correct, and that rather than challenge that decision by way of judicial review, he had elected to take another course. In making that submission, counsel relied upon a series of decisions of this Court ....
In Applicant A2 of 2002, von Doussa J said of the applicant that:
‘having taken that other course, [to make an application under s 417, and await a decision in respect of that application] in my opinion he must live with the consequence of the delay that occurred’.
This statement by von Doussa J crystallised the legal consequences of what Gray J, in Re Batuwantudawa, characterised as ‘inconsistent courses’.
It is also useful to have regard to what was said by Heerey J in Re Ruddock; ex parte LX [2003] FCA 561 at [42]:
‘As a matter of law there was no reason why that should have held up the filing of an application in the High Court. The terms of s 417 itself, including the provision that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such application where other avenues of possible relief are available as of right.’"
10 In Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 Goldberg J said at [14] that the applicant’s course of conduct in making a s 417 application was indicative of a decision to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law. At [15] his Honour said that the s 417 application in that case was not a sufficient special circumstance to warrant excusing the delay and allowing the extension of time, particularly because the applicant’s conduct implicitly accepted that the Tribunal’s decision was not to be the subject of challenge.
11 What was said in the cases considered above applies to the present case. The making of the s 417 applications are not a special circumstance excusing the delay and warranting an enlargement of time in circumstances where the making of the applications implicitly accepted that the Tribunal’s decision would not be challenged. In the present case there is a further consideration. The Minister does not have a duty to consider whether to exercise the power in s 417: see sub-s (8). Presumably taking the view that the applicant should not have on foot both a curial application for review and a considered application under s 417, the Minister required the applicant to discontinue the former. This he did. Accordingly, the applicant made a considered decision to elect in favour of the s 417 course. That is not just an "indication" that he was prepared to accept the correctness of the Tribunal’s decision. It is a positive election no longer to challenge it.
12 In further explanation for his delay in applying to the High Court the applicant said he was "without sufficient means and was unable to obtain any other form of support to seek a review of the decision by the Court within the time permitted". No particulars of the applicant’s financial position are provided, and there is thus no basis upon which to assess the extent or weight of the alleged financial constraints. I do not regard that unparticularised claim as a satisfactory explanation for the delay. Similar bald claims of lack of money were rejected in Applicant M29 of 2001, Applicant VUAD of 2003, Daniel and Applicant M216/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 931.
13 The applicants prospects of success in obtaining an order absolute for the issue of the writs must now be considered. The applicant alone made claims under the Convention. His wife’s case is dependent on his. At the time of the Tribunal’s decision the applicant was 65 years old. He is thus now 70. The applicant owned a variety of businesses over the years in Sri Lanka, and moved from Colombo to Jaffna and back following the changing political situation in the country. He claims that ever since the communal riots in 1977 and 1983, he has suffered discrimination because he is a Tamil. The applicant claims that when the Indian Peace Keeping Force (IPKF) arrived in Sri Lanka in 1987 his family was displaced in Chavakachcheri and narrowly escaped death in an IPKF bombing raid. He says that in 1988 one of his fingers was damaged so badly by an IPKF officer, who was trying to extract a confession of his association with the Liberation Tigers of Tamil Eelam (LTTE), that it had to be amputated. The applicant left Jaffna in mid 1995 and went to Colombo. There he obtained a visitor’s visa on which he entered Australia. At the applicant’s interview with the delegate he claimed that his youngest two sons were recruited into the LTTE, and that as a result he and his wife may be detained by the Sri Lankan security forces should they return to Sri Lanka. The applicant’s wife contradicted this claim at the interview, saying the sons had not joined the LTTE but merely sympathised with its aims.
14 The Tribunal accepted the applicant’s account of the communal riots in Sri Lanka, the arrival of the IPKF, the LTTE ‘government’ in the north and the Sri Lankan government offensive to recapture the north from the LTTE at about the time he left Sri Lanka. It also accepted that he became a displaced person as a result of the attempts at military control over certain areas of the country, and that he may have been questioned by the IPKF in relation to perceived involvement with the LTTE. The Tribunal noted that the applicant spent 36 years in Colombo, moved to Jaffna in 1983, remained there until 1995 except when he was a displaced person in Chavakachcheri, and returned to Colombo in May 1995.
15 The Tribunal then considered the concept of "persecution". Based on various authorities to which it referred the Tribunal noted that
• harm that is not inflicted for a Convention reason is not persecution for the purposes of the Convention • harm that is feared must be of a type or severity sufficiently serious to amount to persecution • whether in a particular case harm amounts to persecution is a question of fact and degree.
16 The Tribunal then referred to country information on the situation in Sri Lanka, and said:
"Country information indicates that the Government and the peoples’ representatives derive from a variety of ethnic groups, the laws of Sri Lanka are not discriminatory in the above sense, and even the Emergency Regulations are not designed to target an ethnic group but a rebel group whose views and aims are not shared by many people of like ethnicity .... While it is undeniable that Tamils in general continue to be from time to time adversely affected by this situation, the mere fact of being a Tamil is not sufficient ground to fear persecution due to the reasons outlined above. The issue arises as to whether such security measures as are taken can amount to persecution."
17 The Tribunal set out extensive passages from reports on the situation in Sri Lanka in the period 1997-1998. These reports can be summarised as follows:
(a) Because of the LTTE security threat, Tamils in Colombo are subjected to a greater degree of surveillance and suspicion than non-Tamils. However, while the security operations cause inconvenience and anxiety to Tamils, they do not amount to harassment or physical danger provided they are properly conducted. Almost all contacts acknowledge that the Government response to the very serious LTTE security threat is understandable.
(b) Tamil people in Colombo continue to have the protection of the law against unlawful activities by the security forces, and the Government prosecutes members of the security forces who break the law.
(c) The frequency of LTTE attacks in the south (since October 1997) has led to a considerable tightening of security in Colombo. Given the nature of the terrorist threat and the recent increase in bomb attacks, no one questions that security procedures in Colombo must be tightened. The security measures do cause great inconvenience to the Tamil population, and many people feel humiliated by them. For the most part they continue to be properly conducted and do not amount to harassment or physical danger, but in the context of the current security climate, the room for abuse of the regulations remains and incidents of abuse do occur.
(d) In Jaffna mistreatment of detainees in military detention occurs, but treatment of detainees in police detention is generally satisfactory. Improvements include the introduction of Tamil language classes for Sinhalese soldiers, especially those manning security checkpoints.
(e) A failed asylum seeker would be of no interest to the Sri Lankan authorities by virtue of being a failed asylum seeker. Failed asylum seekers are being returned to Sri Lanka regularly, including many from Australia.
18 On the basis of the country information the Tribunal concluded:
"The above information indicates that the situation has changed since the Applicant left Sri Lanka [in 1995]; Tamils, either in Colombo or Jaffna, are affected by the security measures put into place to combat the LTTE, there are curfews and checkpoints in place, for example, and while these measures cause inconvenience and frustration, they do not constitute Convention persecution."
The Tribunal went on to say that given the country information, the applicant could return to Jaffna, his last place of residence, as he does not face a real chance of persecution there. The applicant had lived in Colombo for 36 years and conducted business there. He has relatives there, and neither he nor his wife are of an age likely to attract the interest of security forces. It would be reasonable for them to relocate to Colombo.
19 The Tribunal concluded that there was no real chance that the applicant would be persecuted for reason of his ethnicity, now or in the foreseeable future, if he were to return to Sri Lanka.
20 The Tribunal then rejected the applicant’s claim of imputed political opinion by reason of his sons having joined the LTTE. It did not accept that they had so joined. It said:
"The Tribunal finds that the opportunistic revelation of this fact and the contradiction of this state of affairs by the Applicant’s wife, who stated that they were sympathetic towards, but not active in, the LTTE at the delegate’s interview, are a clear indication that the statement does not correspond with the truth. It finds implausible the explanation that the adviser had counselled against a declaration of this fact earlier than when it was made. The Applicant and the adviser at the hearing did not provide any further or more cogent arguments as to the reason that this fact was mentioned after the delegate had indicated the lack of likelihood of success of the application. The Tribunal therefore is fully satisfied that the Applicant’s sons did not join the LTTE as claimed and therefore the Applicant would not be imputed with a political opinion for that reason."
21 All three grounds of review allege "jurisdictional error". However, the application for orders nisi was made in May 2001, so that the new Part 8 of the Act, including the privative clause in s 474, does not apply. See item 8(3) in the Schedule to the Migration Legislation Amendment (Judicial Review) Act 2001. Section 476 of the former Part 8 applies to this proceeding: see s 485(3), and this Court’s powers on a remittal are governed by the grounds listed in s 476. The applicant’s lengthy written submissions assume that the current Part 8 applies, and identify no s 476 ground of review. In oral argument, however, his counsel related the pleaded grounds to s 476(1)(e) (error of law) and s 476(1)(c) (decision not authorised by the Act).
Error in interpreting and applying the term "persecution"
22 In his amended Application the applicant contends that his claim that the Tribunal erred in interpreting or applying the definition of "persecution"
"is shown by the fact that the Tribunal, having noted the claim ... that ‘One of his fingers had to be amputated in 1988 when an IPKF captain tried to force a confession out of him that he was involved with the LTTE’, then found that ‘... the harm suffered in the past as claimed by the Applicant (First Respondent) being displacement, discrimination and interrogation by the IPKF ... is not harm such as to be regarded as persecution in terms of the Convention’. ... The relevant claim about the finger was made in the first prosecutor’s statement dated 25 September 1995 and was that a captain of the IPKF smashed the first prosecutor’s finger with the butt of a machine gun, and still continued to interrogate him ...."
23 The complaint is that the Tribunal erred in law by concluding that the smashing of the applicant’s finger in the circumstances described was not persecution. The Tribunal correctly set out the meaning of "persecution" by reference to Chan v Minister for Immigration and Multicultural and Indigenous Affairs [1989] HCA 62; (1989) 169 CLR 379 at 388 and 429, passages relied on by the applicant in his written and oral submissions. The Tribunal recorded the applicant’s loss of a finger as a result of the IPKF incident, and specifically dealt with it by saying that the harm suffered by the applicant in the past, including "interrogation by the IPKF", was not persecution. The Tribunal correctly said that whether a particular type and severity of harm amounts to persecution is a question of fact and degree. The Court is not empowered to decide the merits of a claim to refugee status. Its jurisdiction is confined to considering whether the Tribunal, in determining that it was not satisfied that an applicant is a person to whom Australia has Convention responsibilities, committed a reviewable error. That the Court might not itself have taken the same view of the facts as the Tribunal does not establish error. In Saha v Minister for Immigration and Multicultural Affairs [2001] FCA 520 the applicant submitted that the Tribunal erred in law in finding that being beaten, badly injured and shot at was not serious enough to constitute persecution. Beaumont J rejected the submission at [57] and [59]:
"It is accepted of course, on both sides and by myself, that I have jurisdiction to intervene in the present area only if an error of law has been demonstrated, and that an error of fact or mistake in the fact finding process will not enliven the Court’s jurisdiction.
...
Applying [the] test in [Vetter v Lake Macquarie City Council [2001] HCA 12] to the present case, I do not think it can necessarily be said that the facts of an attack and being injured or the fact of being shot at, are necessarily either within or outside the description used in the Convention, in its definition of persecution, for that purpose. It is simply not possible to generalise in this area in a way that will throw up necessarily a question of law."
See also Raheem v Minister for Immigration and Multicultural Affairs [2001] FCA 940 at [31].
24 In the present case, the Tribunal correctly instructed itself as to the meaning of persecution. While undoubtedly a brutal assault by the IPKF captain, with unfortunate consequences, the Tribunal’s conclusion that it did not amount to persecution was open to it. The applicant’s attempt to have the Court second guess the Tribunal on a matter of fact has no prospect of success.
25 In any event, the applicant’s present submission ignores the totality of the Tribunal’s reasoning. Having said that the harm suffered by the applicant in the past, including the SPKF incident, did not amount to persecution, the Tribunal went on to say that, even if the past incidents did amount to persecution, the question for it to consider was whether there was a real chance of persecution if the applicant were to return to Sri Lanka. It quoted the observation of Ryan J in Ratnayake v Minister for Immigration and Multicultural Affairs (unreported, Federal Court 14 September 1998):
"It has to be borne in mind in this context that the RRT was not required, as an essential part of reaching a conclusion as to whether the applicant had a well-founded fear of persecution, to characterise past acts of which he complained as ‘persecution’. The significance of those past acts was that they had to be taken into account in the predictive exercise of determining whether there was a ‘real chance’ of the applicant’s being persecuted for a Convention reason if he returned to Sri Lanka in the future."
The Tribunal then considered whether there was a real chance that the applicant would be persecuted were he to return to Sri Lanka, and decided there was not. Accordingly the complaint considered and rejected in [22]-[24] falls away.
26 The applicant made other submissions on this ground that went well beyond this amended ground of review. In his written submissions counsel for the Minister objected to these additional matters being raised, and alerted the applicant to the need to obtain leave further to amend the amended application. No application for leave was made, the Minister did not respond to the additional matters, and accordingly I need not consider them.
Finding not open on the evidence
27 The second ground of review is that it was not open to the Tribunal to find that the sons did not joint the LTTE and that therefore the applicant would not be imputed with a political opinion for that reason. It was said that making a finding that is not open on the evidence is a jurisdictional error, and thus a decision that is not authorised by the Act for the purposes of s 476(1)(c). This ground of review is untenable. The Tribunal’s finding was clearly open to it. It did not believe the applicant’s account, describing it as an "opportunistic revelation" made after the Tribunal had cast doubt on the applicant’s prospects of success. Further, the Tribunal was faced with the conflicting statements of the applicant and the wife. It did not accept the applicant’s account. There is no prospect of this ground of review succeeding.
28 In counsel’s written submissions it was not only contended that the finding was not open, but there was no evidence upon which it could be made. The written submissions make no reference to s 476(1)(g) or, more importantly, sub-s (4). Counsel addressed no argument to the sub-s (4) issues, but nevertheless asked me to consider the application of s 476(1)(g). The no evidence ground can be made out only in one or other of the two situations set out in sub-s (4)(a) and (b). I can identify no "particular matter" that had to be established before the Tribunal was required by law to reach its decision (par (a)). Nor could it be said that the Tribunal based its decision of the existence of a particular fact that did not exist (par (b)). The application of s 476(1)(g) and (4)(b) in any particular case requires the following steps:
(a) A relevant particular fact must first be identified. (b) Then it is necessary to determine whether there was evidence before the Tribunal to justify a finding of that fact. If there was such evidence, the ground cannot be made out. (c) If there was no such evidence, it is next necessary to apply the second limb of (4)(b). If there is no evidence, on review, to show that the fact did not exist, the ground cannot be made out. (d) If there is evidence, on review, to show that the fact did not exist, it is then necessary to apply the first limb of (4)(b). That requires an analysis of the Tribunal’s reasoning to determine whether its decision was based on that fact.
See the Full Court decisions in Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [26] to [28] and Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 at [35].
29 The Tribunal’s decision was based on the fact that the sons were not members of the LTTE. There was evidence that justified the Tribunal finding that fact, namely the wife’s statement that the sons had not joined the LTTE, and the Tribunal’s disbelief of the applicant’s story. There is no prospect of the "no evidence" ground being made out.
Failure to consider relevant matter
30 It is contended that the Tribunal failed to consider a relevant matter, namely whether the applicant might be imputed with a political opinion, and therefore have a well-founded fear of persecution, because his sons, even if not members of the LTTE, were sympathetic to it or perceived to be. The wife’s evidence was that the sons had not joined the LTTE, though they were sympathetic towards that body, but not active in it. The Tribunal’s failure to consider this matter was said to be a failure to consider an important aspect of the applicant’s case. See WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [45], NACM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 64 at [30]- [33] and SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 59 at [23]- [24]. The difficulty with this submission is that the applicant did not claim before the Tribunal that he feared persecution on the basis now propounded. The case is unlike those relied on, in each of which the Tribunal was found not to have dealt with a central issue upon which the applicant relied. In a letter to the Tribunal shortly after his interview, the applicant said:
"It was perfectly right on your part in asking me before the beginning of the interview whether I had included everything in my application without leaving any important matter which may or will lead to any controversy at the end. It is true that I did not mention anything about my two sons .... To tell you the Gospel truth, in fact they are members of the LTTE since June 1995. They were recruited by the LTTE in June 1995 and until December 1995 I did not know about their whereabouts. Since 1990, when the LTTE took full control of the Jaffna Peninsula, all the Tamil people started to sympathise with the LTTE and gave their fullest support. When I heard that the government was going to start a massive offensive in July 1995, I decided to leave Jaffna at the end of June to Colombo. By this time the story about my two sons who were recruited by the LTTE had spread like wild fire ...."
The applicant did not claim to have had any subjective fear of persecution on the ground that a political opinion would be imputed to him because his sons might have such an opinion imputed to them because of their sympathy with the LTTE. Indeed he distinguishes between his sons’ recruitment and membership of the LTTE as opposed to the sympathy for it shown by all Tamils. The only claim to fear was based on the sons’ membership/recruitment. He was aware that his wife had disputed his "membership" claim at the interview, but in the letter persisted in that claim alone. The Tribunal was under no obligation to consider the sympathy claim.
31 In SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]- [9] the Full Court said:
"It is well established that all substantive issues raised by the evidence before the Tribunal must be considered even if an applicant does not articulate all such claims .... It is however, no part of the Tribunal’s function ‘to make good a case, which the applicant has not articulated, only because there is some evidence of elements of a claim’ ...
In this case there is a difficulty in that nowhere in the material that the appellant put before the Tribunal was the issue of perception, as distinct from the actuality, of the appellant’s citizenship directly raised. Even if we were to accept that it was implicitly raised, which is by no means clear, there is nothing in that material to support such a claim. The Tribunal comprehensively rejected the appellant’s evidence on the subject of his nationality as a fabrication designed to enhance his application for a protection visa. That being so there was no evidence that could in any way support a claim of persecution arising from a false perception of such citizenship."
That passage is applicable to the present case.
32 The applicant did not put the "sympathy" argument. He could not put it, because it was inconsistent with his recruitment/membership contention. It was no part of the Tribunal’s function to construct a fall-back position for him that he did not and could not put consistent with the claim he made that was not believed.
33 In SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120 the applicant claimed that the Tribunal had failed to deal with an alternative way in which he put his case, namely that he had an association with a girl of the Baha’i faith which was such as to give rise to a real chance that he would have imputed to him the Baha’i’s beliefs and thus would have a real chance of being persecuted on religious grounds. The primary judge concluded that the applicant had not based himself on the alternative case, and that the only case he had deployed was a fear of persecution based on his intended conversion to the Baha’i faith. His Honour found that the material before the Tribunal did not raise the alternative case. This conclusion was upheld on appeal to the Full Court. Cooper J, with whom Carr J agreed, said:
"There being no evidence to raise the alternative argument of persecution for imputed religious beliefs before the RRT, there was no statutory obligation under the Act for it to consider such an alternative case when it was neither raised, nor relied upon, by the appellant in the proceedings before it."
34 In the present case, not only was the ground not relied on, there was no evidence that having children who were sympathetic to the LTTE, or who might have sympathy imputed to them, would cause the authorities to impute that sympathy to the parents. Such evidence as there was, was to the contrary. In his letter the applicant said all Tamils sympathised with the LTTE. There is no realistic prospect of the applicant succeeding on this ground of review.
35 The applicant’s egregious delay in applying for orders nisi has not been satisfactorily explained. His grounds of review have no real prospect of success. Having regard to the lengthy history of this matter, it is in the public interest that it be brought to an end. The application for an enlargement of time in which to seek mandamus and certiorari is refused, and the application for orders nisi is dismissed as incompetent. The application for an order nisi for prohibition is refused by reason of the applicant’s delay in seeking it. What I have said about the unexplained delay in seeking mandamus and certiorari is applicable to prohibition. The applicant did not contend that if time was not enlarged for the former, the proceeding could nevertheless continue as to the latter.
36 After the conclusion of argument Applicant S422 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 89 was decided. Two members of the Court, Dowsett and Lander JJ, expressed doubt as to whether, on a bare remitter, there is any role for the Order 55 limitation periods. The third member of the Court, North J, said that the Court’s decision on the merits of the appeal made it unnecessary to venture into the question of the application of O 55 to remitted matters. If Dowsett and Lander JJ’s obiter view is correct, I would refuse to grant orders nisi for certiorari and mandamus for the reason I have given at [35] for refusing an order nisi for prohibition.
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I certify that the preceding thirty-six (36) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice
Sundberg.
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Associate:
Dated: 27 April 2004
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Counsel for the Applicants:
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SJ Hamlyn-Harris (appearing pro bono)
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Solicitors for the Applicants:
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Allens Arthur Robinson (acting pro bono)
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Counsel for the Respondents:
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W Mosley
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Solicitor for the Respondents:
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Australian Government Solicitor
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Date of Hearing:
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6 April 2004
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Date of Judgment:
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27 April 2004
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2004/489.html