Applicant M145/2003 v Minister for Immigration & Multicultural& Indigenous Affairs [2004] FCAFC 99 (7 May 2004)

Last Updated: 11 May 2004

FEDERAL COURT OF AUSTRALIA

Applicant M145/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 99

MIGRATION – application for leave to appeal – application for extension of time – whether denial of opportunity to respond to adverse country information.




Applicant M115 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 98


















APPLICANT M145/2003 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 1143 OF 2003




BEAUMONT, WEINBERG & CRENNAN JJ
7 MAY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1143 OF 2003

APPLICATION FOR LEAVE TO APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT M145/2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	BEAUMONT, WEINBERG & CRENNAN JJ
DATE OF ORDER:	7 MAY 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The applications for extension of time and for leave to appeal be refused.

2. The applicant 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 1143 OF 2003

APPLICATION FOR LEAVE TO APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT M145/2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	BEAUMONT, WEINBERG & CRENNAN JJ
DATE:	6 MAY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1 This is an application for leave to appeal, and an application for an extension of time, from a judgment of a single Judge of this Court.

2 The applicant is a Sinhalese widow from Colombo (born in 1930) where she lives with her married son who spends most of his time abroad. Her residence in Colombo is one of a group of flats, where she is friendly with other residents, who are Tamils whom she has helped with food and support on occasions. She claims that the security forces regularly conducted searches at the flats. During these searches she would be questioned and accused of harbouring Tamils. She was accused of being pro Tamil, and a Liberation Tigers of Tamil Eelam (‘LTTE’) sympathiser. On three occasions, ammunition was found in the possession of Tamil residents. The soldiers were abusive and threatening to the applicant during these searches. On one occasion, in February 1995, the applicant was at home alone when her home was raided by the security forces and she was interrogated. A few days after this, she was visited by some Tamil youths, who accused her of providing information to the authorities about Tamil residents. They threatened her and advised her not to inform the authorities. A few days following this, the applicant became aware of the death of two Sinhalese people who were believed to have informed the authorities about the activities of Tamils in the applicant’s group of flats. When another search by the authorities resulted in more Tamil arrests, the applicant began to fear for her safety. She began to receive threatening telephone calls and made arrangements to leave the country. The applicant came to Australia in March 1995. She fears that on return to Sri Lanka she will be persecuted by Tamils and members of the LTTE who believe she gave information to the authorities. The applicant also fears that she may be arbitrarily arrested by the security forces in future searches of her block of flats.

3 In 1997 (about two years and four months after her arrival), the applicant sought refugee status.

4 However, on 31 October 1997, the applicant’s claim for a protection visa was refused by the Minister’s delegate. The applicant then sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 20 June 2000, the Tribunal affirmed the decision not to grant a protection visa.

THE TRIBUNAL’S DECISION

5 Having analysed the claims made by the applicant, as summarised above, the Tribunal made the following findings:

• It was not credible that the applicant left Sri Lanka because of fear of further persecution as, on her own evidence, this was not consistent with her actions.
• On the basis of the inconsistency in the applicant’s evidence and the circumstances that the applicant is not a credible witness, the alleged incident involving the security forces, the Tamil youths and the two threatening phone calls and letters did not occur. For the same reasons, the Tribunal did not accept that someone unknown had asked for her, as she had alleged she had been told by her son. As the Tribunal did not accept that the events occurred as claimed, the Tribunal also did not accept that the applicant went to the police to complain about the alleged harassment by Tamil youths.
• On her own oral evidence, the applicant was planning to travel to Australia before the alleged incidents of February and March 1995. On the evidence of both the applicant and her daughter, the catalyst which brought the applicant to apply to come to Australia was the imminent birth of her grandchild, and she has remained in Australia to continue to assist her daughter by caring for the child ever since.
• There is no evidence of any adverse incidents having affected the current occupants of her flat over the past five years. In addition, the applicant’s daughter and son-in-law lived in the flat with the applicant for many years before they came to Australia. For these reasons, there was no evidence before the Tribunal that the situation of this flat is such as to attract any unusual amount of attention from the security forces, or from Tamil activists.
• Although the applicant claimed to be friendly with some of her Tamil neighbours and to have assisted them, in her oral evidence she was able to indicate only one occasion in the past when this occurred, namely in 1983, long before the alleged incidents of which she now complains.
• Even if the applicant had been friendly with some of the Tamils in her flats, the independent country information put to the applicant is clear that it is implausible that a Sinhalese would even be suspected of helping the LTTE. There was no evidence before the Tribunal of any matter which would cause the security forces to think otherwise than that it would be implausible to even suspect the applicant of assisting Tamils connected with the LTTE.
• Even if the applicant had been threatened by some Tamils (and the Tribunal had found that she was not so threatened) such actions were not condoned by the government which had undertaken a number of security measures against LTTE violence.
• The applicant gave vague and general claims that two men were murdered in her neighborhood, and information was given about an isolated incident involving a Sinhalese woman. There was no evidence before the Tribunal that this information was in any way connected with the applicant, or was pertinent to any claims of the applicant.
• A mere neighbour of Tamils, such as the applicant, who was a long-standing member of that neighborhood, would not be imputed with an LTTE profile.

6 The Tribunal said:

‘...the applicant is not a credible witness. ...[S]he has not been threatened by Tamils nor was she of any adverse interest to the security forces. It follows that the applicant does not have a well-founded fear of persecution for any Convention reason. ...[T]he applicant would not face a real chance of persecution for any Convention based reason now or in the reasonably foreseeable future if she were to return to Sri Lanka.’

PROCEEDINGS IN THE HIGH COURT

7 In circumstances similar to those in Applicant M115 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 98 (hereafter ‘M115’), a draft order nisi was filed in the High Court on 21 May 2003. On 23 May 2003, the matter was remitted to this Court.

PRELIMINARY PROCEEDINGS IN THIS COURT

8 Again, these proceedings were similar to those in M115, as described in our reasons in that matter.

THE DECISION OF THE PRIMARY JUDGE

9 On 8 December 2003, the primary Judge dismissed the application ‘as disclosing no reasonable cause of action’.

10 In his reasons for making this order, his Honour said:

‘These reasons for judgment should be read together with those in Applicant M115/2003. [Those reasons are summarised in our reasons in the application for leave to appeal, and for extension of time, in that matter.]

As in Applicant M115/2003 the respondent filed a notice of motion to dismiss the proceeding. The facts and circumstances of this matter are materially indistinguishable from those in Applicant M115/2003. The applicant did not contend otherwise.

The draft order nisi is in the same form as in Applicant M115/2003. Consent orders of the type made in Applicant M115/2003 were also made in this matter. The applicant filed "contentions of law" but did not file any affidavit material illustrating how it would have made a difference to her case before the Refugee Review Tribunal ("the Tribunal") if she had been appraised of adverse country information before it decided her application for a protection visa; assuming that she was not, in fact, so informed by the Tribunal.

Accordingly it is appropriate to make the same orders in the motion in this matter as in Applicant M115/2003.’

THE GROUNDS STATED IN THE APPLICANT’S NOTICE OF APPEAL

11 These, filed on 19 December 2003, are the same as in M115, as described in our reasons in that matter.

THE MINISTER’S OBJECTION TO COMPETENCY

12 On 22 January 2004, the Minister took the same objection to competency as he took in M115, as we have described there.

THE CHIEF JUSTICE’S ORDERS

13 On 10 February 2004, the Chief Justice made orders in the same terms as those made in M115, as we have described there.

THE APPLICANT’S AFFIDAVIT IN SUPPORT OF HER APPLICATION FOR LEAVE TO APPEAL

14 By her affidavit sworn 25 February 2004, the applicant says:

‘4. ... His Honour was well aware that I had no legal representation and just the help of family and friends. His Honour in his decision states that I filed "contentions of law but did not file any affidavit material illustrating how it would have made a difference to her case before the Refugee Tribunal if she had been appraised of adverse country information before it decided her application for a protection visa."

5. In my application and contentions of law I did state in making its decision, the Tribunal failed to observe or breached procedural fairness, in that it has relied upon particular DFAT cables and Country information. Subsequently, the Tribunal has relied upon this information without giving ... me the opportunity to respond to that material. I was not aware this had also to be put in an affidavit. In the interests of justice, His Honour could have given me some time to put this information in an affidavit and it would have been the same information as contained in my application and contentions of law.

6. The Tribunal says it put to me independent country information contained in DFAT Cable CL 38234, 15 December 1995, DFAT Cable CL 650 15 May 1997 & advice CX32168 of 14 October 1998. In fairness to the Tribunal I cannot remember these pieces of information being put to me and the response I gave. However, given my age and state of mind, this information should have been put in writing and given to me so that I could properly read it, digest the information and then make a proper response. A response in the context of a tribunal hearing, being under pressure & being nervous was not the best environment.

7. The Tribunal also put information in CX 40992 of 6 April 2000 & a Cable of 19 December 1995 (CX12970). All these pieces of country information were adverse to my case and if the Tribunal was serious in giving me a fair opportunity to respond to these Cables, at the conclusion of the hearing they would have sent to me or my migration agent these pieces of country information and asked me to make written comments on how it affected my case. The Tribunal chose not to follow this procedure.’

15 (The applicant also filed an outline of submissions on 26 February 2004 to similar effect.)

CONCLUSIONS ON THE APPLICATIONS FOR LEAVE TO APPEAL AND FOR AN EXTENSION OF TIME

16 For the reasons given in the respondent’s written outline of submissions dated 5 May 2004 at [17] – [19], it appears that the applicant now seeks to rely (only) upon the second aspect of the Muin decision, that is, an alleged denial of an opportunity to respond to adverse country information. However, in our opinion, for the reasons given in the respondent’s outline at [20] to [31], this is a case where, in the absence of any further evidence from the applicant, the Court could not find that there had been any denial of natural justice or ‘practical unfairness’.

17 Accordingly, the applications must be refused, with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Weinberg & Crennan.

Associate:

Dated: 7 May 2004

Solicitor for the Applicant:	No appearance
Counsel for the Respondent:	Mr C Horan
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 May 2004
Date of Judgment:	7 May 2004