M111 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 97 (5 May 2004)

Last Updated: 6 May 2004

FEDERAL COURT OF AUSTRALIA

M111 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 97

MIGRATION- Claim for protection visa refused by Refugee Review Tribunal – Application for an Order Nisi for Writs of Certiorari and Prohibition – Remitted from High Court – Writ of Certiorari out of time - Primary judge refused an Order Nisi - Whether primary judge erred in rejecting claims – Whether Tribunal denied procedural fairness and misconceived its task – Practice and procedure – Leave to appeal from interlocutory judgment.




Federal Court Act 1976 (Cth) s 24(1A)
High Court Rules O55 r17(2), O60 r6
Migration Act 1958 (Cth)



Avesta v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 121 referred to
Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 followed
Mayne Nickless Ltd v Multigroup Distribution Services Pty Ltd & Ors (2001) 114 FCR referred to
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966 noted
Re Minister for Immigration and Multicultural Affairs; Ex Parte Cassin [2000] HCA 50 followed
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 referred to
Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054 referred to




M111 OF 2003 V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS
V 26 OF 2004


BEAUMONT, WEINBERG and CRENNAN JJ
5 MAY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V26 OF 2004

On appeal from a judge of the Federal Court

BETWEEN:	M111 of 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT B F KISSANE IN HIS CAPACITY AS A MEMBER OF THE REFUGEE REVIEW TRIBUNAL AND ADOLFO GENTILE IN HIS CAPACITY AS SENIOR MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENTS
JUDGES:	BEAUMONT, WEINBERG and CRENNAN JJ
DATE OF ORDER:	5 MAY 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2.	The applicants to pay the respondents’ 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	V26 OF 2004

On appeal from a judge of the Federal Court

BETWEEN:	M111 of 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT B F KISSANE IN HIS CAPACITY AS A MEMBER OF THE REFUGEE REVIEW TRIBUNAL AND ADOLFO GENTILE IN HIS CAPACITY AS SENIOR MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENTS

JUDGES:	BEAUMONT, WEINBERG and CRENNAN JJ
DATE:	5 MAY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1 This is an application for leave to appeal from a decision of a judge of this Court refusing an application for an Order Nisi for the issue of Writs of Certiorari and Prohibition. The Writs were directed respectively to the Refugee Review Tribunal ("the Tribunal") and the Minister in relation to a decision of the Tribunal made on 3 April 1999. The Tribunal affirmed the decision of the delegate of the respondent to refuse the applicants protection visas.

2 The applicants are a husband and wife and their children. One son, has discontinued as a party to this application and has his own separate application pending. They are citizens of Sri Lanka of Burgher ethnicity. The applicant wife left Sri Lanka on 13 September 1994 and went to live with her husband in Italy. Her two sons initially remained in Sri Lanka with her cousin. However, they followed her to Italy in August 1996. The family arrived in Australia on 10 October 1996. On 8 November 1996 the applicants applied for protection visas under the Migration Act 1958 (Cth).

3 The applicant wife claimed that she and her family were suspected of being supporters of the Liberation Tigers of Tamil Eelam ("LTTE"). This claim was largely based on the fact that her parents lived in LTTE controlled territory. In addition she claimed that she and her family had suffered harassment from their neighbours in the community and from the police. She claimed that her son had been harassed at school and that the police had visited her home on a number of occasions and questioned her about her father and two brothers.

4 The application for protection visas was refused on 19 June 1997. On 3 March 1999 the Tribunal affirmed that decision. A representative proceeding was commenced in the High Court of Australia. The applicants were joined to that proceeding which was determined on 8 August 2002: Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966. As a result of those proceedings, an application, commenced in the High Court on 21 May 2003, for an Order Nisi for the issue of Writs of Prohibition and Certiorari was remitted to this Court.

5 On 22 December 2003 the primary judge refused the application for an Order Nisi for the grant of Writs of Certiorari and Prohibition. The applicants required leave from the primary judge to have their application filed and heard out of time as their application for the Writ of Certiorari was filed some five years after the Tribunal’s decision. An order for a Writ of Certiorari must be sought within six months of the date of the judgment or order challenged. We were informed that the reason for the delay was that the applicants had made an application to the Minister under s 417 of the Act. It has been held repeatedly that such an application provides no excuse for failing to seek judicial review within applicable time limits. (O55 r17 of the High Court Rules.) It needs to be noted that in Applicant S422 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 89 at [29] Dowsett and Lander JJ expressed the view that the time limits in r 17 are procedural rather than substantive and accordingly were not applicable when matters are remitted from the High Court to this Court. For the purposes of this application it is unnecessary to resolve differences of views about the correct characterisation of r 17. There is a general power under the High Court Rules to enlarge time (O60 r6 of the High Court Rules). Whilst there are no express time limits for seeking an order for a Writ of Prohibition, delay in seeking such relief can be taken into account when exercising any discretion. See: Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054.

6 The primary judge held:

"Even if I were to grant leave to file the application for a writ of certiorari out of time and even if I were satisfied that the matter should be dealt with notwithstanding the privative clause, not only is there no ground of jurisdictional error disclosed, not only is there no ground disclosed that the Tribunal has misconceived its task, but no grounds of error are made out at all."

Accordingly, his Honour refused the application for an Order Nisi for the issue of Writs of Certiorari and Prohibition.

7 The applicants now require leave to appeal from the primary judge’s decision because that decision is interlocutory (s 24(1A) of the Federal Court of Australia Act 1976). In addition to alleging error by the primary judge in not finding the Tribunal committed any breach of procedural fairness or jurisdictional error as a result of misconceiving its task (which matters were argued before him) the application for leave to appeal appears to also raise matters not argued before the primary judge.

8 The principles applicable to an application for leave to appeal from an interlocutory decision are set out in a decision of a Full Court in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 which has been followed by other Full Courts. See for example, Mayne Nickless Ltd v Multigroup Distribution Services Pty Ltd & Ors [2001] FCA 1620; (2001) 114 FCR 108. In determining whether leave to appeal from an interlocutory decision should be granted, the tests to be satisfied are whether the decision at first instance was attended with sufficient doubt to warrant its reconsideration by an appellate court and whether substantial injustice would result if leave to appeal were refused. Leave is more readily granted where substantive rights, rather than points of practice, are at issue.

9 There were two grounds of error advanced by the applicants before the primary judge. First, it was contended that:

"In making its decision, the Tribunal failed to observe or breached procedural fairness, in that it relied on a specific cable CL98 relating to a Burgher assisting the LTTE."

It was claimed that the denial of procedural fairness arose because the Tribunal relied on the information without giving the applicants the opportunity to respond.

The second ground of error advanced was that the Tribunal identified the wrong issue because the Tribunal identified the applicants’ claim as based on the fact they were Burghers when they identify their claim as based on the fact that they were accused of being supporters of the LTTE because the applicant wife’s parents lived in LTTE controlled territory.

10 As to the first alleged error the Tribunal set out the text of Cable CL 98 of 24/6/96 as follows:

"If a Burgher was (sic) suspected of assisting the LTTE or the JVP, he or she would be treated in the same way as any other suspect. Burghers we spoke to were amused by the suggestion that such assistance might occur. Burghers are not a particular group in which the government is interested. There are very few burghers (sic) in Sri Lanka today, because most migrated after the national language policy was reformed in the 1950s and English ceased to be the official language. They do not suffer discrimination in Sri Lanka beyond the fact the (sic) English is no longer the official language."

The Tribunal then found:

"Whilst the Tribunal notes the submission from the applicant’s advisers that the Tribunal should place emphasis on the first sentence, the tenor of the cable in the Tribunal’s view is that it is inherently unlikely that Burghers would be accused of assisting the LTTE."

11 Since the applicants’ advisers made submissions in respect of the cable, in dealing with the claim that procedural fairness had been denied by not giving the applicants a chance to respond to the cable, the primary judge was correct to find that the applicants’ claim is not made out on the facts. The correctness of the primary judge’s decision on this issue is not open to doubt.

12 As to the second alleged error, the Tribunal expressly dealt with the claim that the applicants were accused of being supporters of the LTTE because the female applicant wife’s parents lived within LTTE controlled territory and said:

"Further if it is the case as the applicants’ claim that the applicant wife’s parents are assumed to be LTTE supporters because they have property in a LTTE controlled area, it is strange that the parents were not arrested on their visits to the south or indeed that they were allowed to travel to the south at all . . .

. . . the lack of interest shown by the authorities in the applicant wife’s parents satisfies the Tribunal that no-one suspected them of LTTE involvement and that no-one accused the applicant wife of having parents involved in the LTTE . . . when the tenor of the cable above [CL98] is considered the Tribunal does not accept that the neighbours would conclude that they were LTTE supporters even if these neighbours were aware that the applicant wife’s parents had a farm in an LTTE controlled area . . . Further, if those in the neighbourhood did harass the applicants the solution to the applicant wife’s problems would be to move neighbourhoods . . ."

" . . .the applicant wife has previously stated that when visiting her parent’s farm she had seen armed cadres who she believed to be LTTE fighters visiting her father’s farm. However, even if this is true, and given that her father’s farm has been for a period in LTTE controlled area it would seem possible, the Tribunal does not accept that this means that her parents were assisting the LTTE or supporting the LTTE, or more importantly, that the authorities would impute such support to her parents or to the applicants."

This reasoning did not depend on any proposition that Burghers are unlikely to support the LTTE.

13 Before us it was submitted again on behalf of the applicants that the Tribunal failed to consider the correct issue, namely, whether the applicants may have been the subject of harassment due simply to parental association. The primary judge was correct to reject the claim that the Tribunal identified the wrong issue by not correctly identifying the applicants’ claim that they were accused of being LTTE supporters because the applicant wife’s parents lived in LTTE controlled territory for a considerable period of time. The Tribunal dealt with the claim expressly and rejected it. In rejecting it, it said it ‘has considerable difficulties with the applicant wife’s evidence.’ The Tribunal was not persuaded by the applicant wife on the issue, and its findings on the issue and as to her credit were open to it. While opinions may vary about findings or specific claims and findings as to credit if the decision is open and not perverse there is no jurisdictional error: Avesta v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 121. The primary judge’s decision is not open to doubt as the facts did not support any jurisdictional error as claimed.

14 The applicants are seeking a review on the merits, in circumstances where the facts do not disclose any jurisdictional error either in respect of procedural fairness or in relation to the allegation that the Tribunal identified the wrong issue, thereby misconceiving its task.

15 The applicants sought to advance new grounds of error of the Tribunal not advanced before the primary judge. It was contended that the Tribunal’s finding that the applicants could move to a different area was affected by jurisdictional error because the Tribunal excluded from its consideration factors which should have affected its determination. It was submitted in written submissions filed on behalf of the applicants that, assuming the applicants could find alternative accommodation in Colombo, three factors which the Tribunal should have considered were:

(i) if the applicants were being harassed by their neighbours (a claim not accepted by the Tribunal) would the time it might take to find new accommodation be sufficient to amount to persecution;
(ii) if the applicants could avoid persecution by not having the applicant wife’s parents visit them, would that in itself amount to persecution; and
(iii) whether the possibility that new neighbours might become aware of where the applicant wife’s parents lived would amount to a well-founded fear of persecution.

16 Putting to one side the need to obtain leave to advance grounds of error not advanced before the primary judge, it appears in any event these new contentions are no more than an attempt to mount arguments not made before the Tribunal in respect of matters of fact. The particular matters of fact advanced as factors which should have been considered are already subsumed under the Tribunal’s finding that it did not accept that the neighbours would conclude that the applicants were LTTE supporters even if they were aware that the applicant wife’s parents had a farm in an LTTE controlled area. Further, in relation to such submissions as were made before it about possible future harassment from neighbours the Tribunal noted "It is incumbent on applicants to seek protection of their own state before having recourse to the international community." The possibility of future harassment, for Convention reasons, by neighbours or potential neighbours will not amount to persecution in the absence of any cogent evidence that the country of nationality would not or could not offer a level of state protection from such harassment from private individuals. See: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18. In any event these extra grounds of error do no more than seek to enlarge the applicants’ attempt to review the Tribunal’s decision on the merits.

17 The applicants have not shown, as they must, an arguable case of any jurisdictional error by the Tribunal in affirming the delegate’s decision. See: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Cassin [2000] HCA 50. We agree with a submission made on behalf of the respondent in written submissions that the applicants have not shown that the primary judge’s decision is attended with sufficient (or even any) doubt to warrant it being reconsidered and cannot satisfy the first test for the grant of leave in respect of an interlocutory matter.

18 The application for leave to appeal must be dismissed and the applicants must pay the respondents’ costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Weinberg and Crennan.

Associate:

Dated: 5 May 2004

Counsel for the Applicant:	R Hamilton
Solicitor for the Applicant:	Di Mauro Solicitors
Counsel for the Respondent:	C Fairfield
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 May 2004
Date of Judgment:	5 May 2004