M18/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 127 (14 May 2004)

Last Updated: 17 May 2004

FEDERAL COURT OF AUSTRALIA

M18/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 127

MIGRATION – protection visa – application for constitutional writs – whether the decision of the Refugee Review Tribunal was not a bona fide attempt to exercise its power































M18/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V 1068 OF 2003

MOORE, SACKVILLE AND EMMETT JJ
14 MAY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1068 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:	M18/2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MOORE, SACKVILLE AND EMMETT JJ
DATE OF ORDER:	14 MAY 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The adult appellant pay the respondent's costs.













Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1068 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:	M18/2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	MOORE, SACKVILLE AND EMMETT JJ
DATE:	14 MAY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1 On 29 June 2000 the appellants lodged applications for a protection visa. They were refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") on 9 August 2000. The appellants applied for review of that decision by the Refugee Review Tribunal ("the Tribunal") on 31 August 2000. The Tribunal affirmed the decision of the Minister not to grant the protection visas on 21 January 2002. The appellants then lodged an application with the High Court for an order nisi for constitutional writs. The High Court remitted the matter to this Court on 30 July 2002. The application was heard by Sundberg J on 16 October 2003. On 12 November 2003, his Honour made an order dismissing the application. The appellants appeal against that judgment.

Background

2 The appellants are a mother and two daughters. They are Sri Lankan nationals of the minority Burgher ethnic group. They entered Australia on 20 May 2000. Only the mother made specific claims under the Refugees Convention. It is convenient to refer to the mother as the appellant.

3 The essence of the appellant's claims was that by reason of her actual or imputed political opinion she feared persecution by supporters of the People's Alliance Party ("the PA"). She also claimed to fear persecution by the Liberation Tigers of Tamil Eelam ("the LTTE") on the basis that it was believed she had informed on members of that organisation.

4 It is convenient to repeat the primary judge's summary of the appellant's claims (at [2]-[5]):

The applicant claimed she had a strong association in Sri Lanka with the United National Party (UNP). She did not have a formal position, but was a keen supporter and attended meetings and rallies. She said that in 1994, the year of a national election, she was subjected to threats in the street and by telephone from supporters of the opposition Peoples Alliance Party (PA). Stones were thrown at her house and rubbish was placed in front of it. She said the threats had continued until she left Sri Lanka to come to Australia in May 2000, even though she had scaled back her political activities. She said she complained to the police about these events, but they did nothing. She could not recall the last time she complained. In November 1994 the applicant obtained a visa, valid for one year, to come to Australia. However, despite her problems, she did not leave Sri Lanka.
The applicant claimed that following communal violence in 1983 she took in a number of Tamil people as boarders. In 1999, because of her close association with some Tamil friends, she was asked to take in two Tamil boys as boarders. She became good friends with the boys and was always aware of the friends they brought home. They stayed with her for between three and six months. She said her Sinhalese neighbours accused her of sympathising with the Tamil cause and thus with the LTTE. She claimed that the police asked her why she was sheltering Tamil people and suggested she was a Tamil sympathiser. She told the Tribunal she could not remember the Tamil boys' names.
The applicant also claimed that when the police came to her house on a routine search and rounding up operation in mid-1999, she gave them information about the friends of her two boarders who regularly visited them. She said that a few weeks later one of the friends was arrested by the security forces. She later said the arrest was about a month later. The applicant said that shortly after the friend's arrest she received telephone threats that she would be killed. She also received a threatening letter. She could not remember when this was. She believed the threats came from the LTTE as she had no other enemies. She did not go to the police about the threats which she ignored.
The applicant said she obtained a passport in November 1999 with the intention of leaving Sri Lanka as soon as possible, but because of financial problems she was unable to leave until May 2000. She claimed that if she were to return to Sri Lanka she would be harmed by government thugs because she was a supporter of the UNP. She was also afraid of being harmed by the LTTE.

The Tribunal's decision

5 The primary judge summarised the Tribunal's decision (at [6]-[8]):

The Tribunal accepted that the applicant was an ordinary, active member of the UNP and that she campaigned for the party in the 1994 elections. It did not accept that she was harassed, as she claimed, over a period of five years because of her support for the UNP, or that her house was damaged because she was an active member of the UNP. The Tribunal found that the applicant's claims were inconsistent with relevant country information about Sri Lanka at the time. It also gave weight to the applicant's failure to take advantage of the Australian visa issued to her in November 1994. It said that if she had been harassed and threatened as she claimed, she would surely have taken the opportunity to leave.
The Tribunal accepted that the applicant may have helped Tamils during the 1983 communal riots. However, it found that given the lapse of time, she did not have a well-founded fear for that reason. The Tribunal did not accept the applicant's claim that she took in two Tamil boys, that she gave the police information about their friends, and that she had been threatened by the LTTE as a result. It found that she had fabricated these matters. It gave its reasons: the applicant could not remember the boys' names, she had not reported the threats to the police, and could not remember when she gave the information to the police. Because the Tribunal did not accept her claim about the Tamil boys, it rejected the claim that she had been abused by the police and neighbours for assisting Tamils or that an adverse political opinion for doing so was imputed to her.
The Tribunal found that the applicant had not been persecuted in the past by reason of her political opinion by either supporters of the PA government or by the LTTE, and that she had not been assigned an adverse political profile because she had assisted Tamils. It then considered whether, in view of its findings, there was a real chance of the applicant being persecuted if she were to return to Sri Lanka. It found that she had not been persecuted in the past on account of her membership of the UNP. It noted that the UNP had now regained power in the December 2001 election. It concluded that were the applicant to resume her membership of the UNP and actively support it, she would not be persecuted for her political opinion. Since it did not accept the applicant's claim that an adverse political opinion had been attributed to her because she had assisted Tamils, or that she had been threatened by the LTTE, it did not accept that she would have problems with either the authorities or the LTTE on her return.

The judgment of the primary judge

6 His Honour's consideration of the application proceeded on the basis, correctly, that the only challenge to the Tribunal's decision was that it had not exercised the power of review bona fide. This is apparent from an amended application for review filed on 2 December 2002 by the appellant's then solicitors.

7 In his reasons, his Honour set out several propositions which have emerged from cases concerning whether a decision constitutes a bona fide attempt to exercise the power of review, which were summarised by the Full Court in SBBS v Minister for Immigration and Multicultural Affairs [2002] FCAFC 361; (2002) 194 ALR 749. The appellant's submissions centred on the information and reports referred to by the Tribunal and their currency. The appellant complained about the age of the reports, and submitted there were other reports not referred to by the Tribunal which the Tribunal was obliged to refer to because they "support[ed] the general tenet of her submissions".

8 His Honour concluded that the appellant misunderstood the Tribunal's approach. The Tribunal had referred to country reports dating back to the mid 1990s because it was considering contemporaneous information. His Honour noted that at least one, if not two of the four reports the appellant claimed the Tribunal should have considered, were in fact referred to by the Tribunal. It was also noted that the weight to be attributed to country information was a matter for the Tribunal, not for the court, his Honour citing Gyles J with approval in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263; (2002) 119 FCR 312 at [52] and in Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929; (2001) 192 ALR 71 at [71]- [72].

9 His Honour concluded the appellant's claim of lack of bona fides was baseless and dismissed the application.

Notice of Appeal

10 In a notice of appeal filed on 1 December 2003, the appellant effectively repeated the ground raised before the primary judge. That is, it was alleged that the Tribunal fell into jurisdictional error by considering dated and not recent country information and the primary judge erred in not concluding that the Tribunal had fallen into jurisdictional error.

11 For the reasons given by the primary judge, this contention is without substance.

12 In written submissions, the appellant raised a number of additional issues. They included that she had been denied procedural fairness because she had been required to attend the hearing before the Tribunal at a time when she was medically unfit. The appellant also contended, in effect, that the Tribunal failed to take into account her mental state when assessing her evidence and, in particular, when considering the significance of her inability to name the Tamil boarders she claimed to have taken in during 1999.

13 It is apparent from the Tribunal's reasons that the hearing was delayed for three months at the appellant’s request because of a psychologist’s report concerning the mental health of the appellant. That report recommended that the appellant should receive treatment for her condition in the interim. After the three months had passed, the Tribunal asked the appellant to attend a hearing on 25 May 2001 but, at the appellant's request (made on 24 May 2001) delayed that hearing until 31 May 2001. The Tribunal refused to delay the hearing for a longer period. It did so on the ground that the psychologist, although stating that the appellant still suffered from the same condition, reported that the appellant had not sought the recommended treatment. The appellant attended the delayed hearing with her legal representative.

14 The appellant's amended application and written submissions before the primary Judge were prepared by counsel. That application and those submissions appear to have abandoned a complaint made in the draft order nisi that the appellant was denied procedural fairness (and that the Tribunal failed to follow procedures required by the Migration Act 1958 (Cth) ("the Act") and misconceived its duty) because the hearing before the Tribunal took place when she was suffering from a mental disability. It may well be that the matter was not pursued in either the application or submissions because those advising the appellant considered a denial of procedural fairness was not a ground available under the then legislative regime.

15 The allegation of denial of procedural fairness is not raised in the notice of appeal. However it is relatively clear the notice was prepared by the appellant without legal assistance.

16 A full investigation of the consequences of any mental illness the appellant might have suffered at the time of the hearings before the Tribunal, would almost certainly have involved evidence being led before the primary judge. It was not.

17 The appellant made no application to this Court for leave to adduce further evidence pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth). However, we have independently considered whether, had such an application made, there would have been any basis for granting leave; cf CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172. To that end, we have read the transcript of the hearing before the Tribunal. The transcript commences with the following:

[Tribubal]: Good morning, [to the appellant], how are you? Good morning, Mr Wimal [solicitor acting for the appellant]. All right, now this ---
[The appellant]: At the moment I'm not in a position to answer, but I can, I try to answer at my best, because the tribunal sent me a letter saying that if I don't come today that they'll make their own decision. So because of that I have come.
[Tribubal]: Why aren't you in a position to answer the questions today?
[The appellant]: I am very, very depressed because of having mental problems.
[Tribubal]: [addressing the appellant] that actually isn't what your psychologist report said. I gave you three months when you first wrote to me in February and explained your problem to enable you to get treatment. What your psychologist's letter has said is that you didn't receive treatment, you didn't seek treatment, and that it appeared to the psychologist that you may not in fact seek treatment. Under those circumstances I felt it was appropriate [scilicet – inappropriate] to continue to give you prolonged extensions. I mean, this can't keep going on like this. I didn't see anything in your psychologist's letter that said you couldn't answer any questions. Is that the case, Mr Wimal?
MR WIMAL: Yes. The applicant---
[Tribubal]: You've got the documents, I assume. Do you believe that it's impossible for her to answer any questions at this hearing?
[The appellant]: I'll try to answer what I can ---
MR WIMAL: I told her it doesn't matter, take you time, try to answer, because (indistinct) don't want to postpone all the time.
[Tribubal]: I mean, if you really are unable to do this, I'm going to have to send you to a psychiatrist for a proper assessment of your psychiatric condition, and I would want a report that says that you are medically unable to answer the questions. It seems to me that the material I have in front of me at the moment doesn't indicate that you are at the stage where you are unable to answer questions. You're anxious and you're depressed but that doesn't, as far as I can tell, mean that you can't answer some fairly straightforward questions that I might ask you.
[The appellant]: I'll try my best to answer what I can.
[Tribubal]: As far as I'm concerned, this is the hearing. If you feel that there are medical grounds that haven't been, you know, that I've not taken account of, then I think you're going to have to go and get something a bit more substantial that says why this is not to be the final hearing because otherwise, as far as I'm concerned, it is, and I will write up the decision on this basis, unless of course there's any other information quite apart from the medial condition that I need to take into account. I mean, I did give you three months and I thought that was pretty reasonable.
[The appellant]: Bit I didn't have the funds at ---
[Tribubal]: What did you actually do about it? Did you go to the community health centre and talk to them?
[The appellant]: I didn't go there. On my own I can recover it.
[Tribubal]: Well, you know, I can't – I mean, how do I know you're ever going to do anything about it?
MR WIMAL: We go ahead, the hearing, anyway.

18 A little later, the following is said:

[Tribubal]: Mr Wimal will be with us throughout the hearing, but because it's your situation which is of concern, I'm going to be asking my questions to you directly. But when I finish talking to you I'll ask Mr Wimal if there are any other areas he thinks that I should talk to you about, or if he wants to say anything on your behalf. This hearing is private and confidential. I'm going to take notes to help me recall what you say. The hearing will be taped so that [the Tribunal] will have a full record, and you can request a copy of the tape if you want to. I don't think it will be a long hearing, so maybe an hour or so. A written decision will be made after the hearing. Are you happy you understand what's going to happen today?
[The appellant]: Yes.

19 At the conclusion of the hearing, there is the following exchange:

[Tribubal]: Okay. All right, was there any other issues that you wanted to raise? All right, why don't you have a think for a minute while I talk with Mr Wimal. Were there any areas that you'd like me to ask [the appellant] about?
MR WIMAL: Nothing, no.
[Tribubal]: Was there anything that you wanted to ---
MR WIMAL: Nothing.
[Tribubal]: Okay. All right, are you planning – in terms of her medical situation, is there anything further that you're planning to do in relation to that?
MR WIMAL: No (indistinct)
[Tribubal]: All right. So you're not proposing to put in any further submissions or things after this hearing?
MR WIMAL: She has to ---
[Tribubal]: I'm anxious to give her an opportunity if there is a problem.
MR WIMAL: Yes. Giving answer to your question, and I don't think anything prepared further – to cover any further issues because most of the issues have covered by you now.
[Tribubal]: Okay. All right, well if there's nothing more you need to tell me today, because I am now going to proceed to make my decision on your case, all right. So this is the chance – this is the time that you need to tell me if there is anything else.

20 What emerges from these extracts is this. The appellant was then legally represented. The Tribunal was concerned to ensure that the appellant was able to answer questions asked of her. The appellant declined an offer by the Tribunal to undergo psychiatric assessment. The appellant indicated to the Tribunal she was prepared to proceed and her solicitor confirmed that was so. In our opinion, no purpose would be served by allowing the appellant to adduce further evidence in this appeal concerning her mental state at the time of the hearing before the Tribunal.

21 One procedural point should be noted. The matter came to this Court on remitter from the High Court. At that time, all that had been made was an application for an order nisi for constitutional writs. As a result of a direction of a Registrar of this Court, an amended application was filed in this Court purportedly under s 475A of the Act and s 39B of the Judiciary Act 1903 (Cth). As a result of a direction given at the Full Court callover, an application for an extension of time in which to apply for leave to appeal was filed on the basis that the judgment of Sundberg J may have been an interlocutory judgment and leave to appeal had not been sought within time. In our opinion, having regard to the order made by Sundberg J (dismissing the application), the filing of the amended application in this Court (whether regularly or not is presently immaterial), and his Honour's reasons (which, in terms, deals with the matter on a final basis), the judgment was a final one. No question of leave arises. Accordingly the appropriate order is to dismiss the appeal with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Sackville and Emmett.

Associate:

Dated: 14 May 2004

Counsel for the Appellant:	The appellant appeared in person. A relative made submissions on her behalf.
Counsel for the Respondent:	C Fairfield
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 May 2004
Date of Judgment:	14 May 2004