S1152 of 2003 v Minister for Immigration & Multicultural Affairs (No 2) [2006] FCAFC 98 (8 May 2006)

Last Updated: 20 June 2006

FEDERAL COURT OF AUSTRALIA

S1152 of 2003 v Minister for Immigration & Multicultural Affairs (No 2)

[2006] FCAFC 98

APPLICANT S1152 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NSD5 OF 2006




EMMETT, STONE & BENNETT JJ
8 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD5 OF 2006

ON APPEAL FROM THE CHIEF FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1152 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGES:	EMMETT, STONE & BENNETT JJ
DATE OF ORDER:	8 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

(1) the appeal be dismissed;

(2) the appellant pay the first respondent’s costs of the appeal.
















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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD5 OF 2006

ON APPEAL FROM THE CHIEF FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1152 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGES:	EMMETT, STONE & BENNETT JJ
DATE:	8 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

EMMETT J

1 Only one ground of appeal remains on foot after the Court rejected the appellant’s application for leave to amend earlier today. When pressed, counsel for the appellant indicated that he could not succeed on the remaining ground and sought leave to make a further amendment to the amended application. The appellant was given time to formulate the new grounds and, following the adjournment, a proposed amended notice of appeal was provided to the Court. That was provided on the basis that the original application to the Federal Magistrates Court should be amended to reflect those as grounds upon which review of the decision of the second respondent, the Refugee Review Tribunal (‘the Tribunal’), was sought by the Federal Magistrates Court.

2 Once again, for the purposes of the application for leave to amend, we accepted the three affidavits to which reference was made earlier today (see [2006] FCAFC 97). Counsel for the appellant advanced the following relevant questions for consideration by the Court in deciding whether or not to grant leave to amend:

(1) Do the new legal arguments have a reasonable prospect of success?
(2) Is there an acceptable explanation of why they were not raised below?
(3) How much dislocation to the Court and efficient use of judicial sitting time is really involved?
(4) What is at stake in the case for the appellant?
(5) Will the resolution of the issues raised have any importance beyond the case at hand?
(6) Is there any actual prejudice, not viewing the notion of prejudice narrowly to the respondent?
(7) If so, can the prejudice be justly and practicably cured?
(8) If not, where, in all the circumstances, do the interests of justice lie?

Counsel for the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), accepted that those principles are appropriate for the purposes of considering this question.

3 In dealing with the second matter, namely, whether there is an acceptable explanation of why the new legal arguments were not raised below, counsel for the appellant was able to say no more than that the appellant was not represented at first instance. That proposition is no doubt correct but does not go far enough. The appellant was in fact represented by a solicitor in connection with a proceeding in the High Court. The proceeding commenced by the appellant in the High Court was remitted to this Court. At that stage, the proceeding consisted of an application for an order nisi calling upon the Minister to show cause why writs would not issue to the Tribunal. The appellant was represented by solicitor and counsel in that proceeding. Counsel in that case conceded, in effect, that unless orders in the nature of discovery were made against the Minister and the Tribunal, the case was doomed to failure. For that reason, orders nisi were refused.

4 The appellant has made no effort to put evidence before this Court as to the circumstances of his retaining solicitors in connection with that proceeding. Nor has he made any effort to put evidence before this Court concerning attempts to obtain legal advice from the time from when the orders nisi were refused until he commenced his proceeding in the Federal Magistrates Court and the period from the commencement of that proceeding until the hearing. We do not know whether he consulted lawyers or whether he had any difficulty in obtaining legal advice during that period. That is something which is relevant to the question of whether there is an acceptable explanation as to why these proposed new grounds were not raised before the Federal Magistrates Court. Speaking for myself, I am not satisfied that any acceptable explanation has been given.

5 Counsel for the Minister has indicated that, if leave were granted, it may well be necessary for the hearing of this appeal to be adjourned to enable the Minister to give instructions as to any prejudice that might flow from the amendment. The dislocation of the Court’s business is not decisive, but it is a matter to be taken into account, particularly in circumstances where there is no acceptable explanation as to why the proposed new grounds were not raised below. Certainly, much is at stake for the appellant if his case is a good one and the Court should be slow to refuse leave to raise new grounds if there is an acceptable explanation for the failure to raise them in the first place and the proposed new grounds have a reasonable prospect of success. That brings me then to the question of the two proposed new legal arguments.

6 The first is that the Tribunal failed to afford the appellant procedural fairness in so far as it did not give him an opportunity to comment on evidence that the LTTE would perceive him as the enemy for persistently refusing to help the LTTE. The appellant is a citizen of Sri Lanka who arrived in Australia on 18 July 1996. It was not until 31 July 1997 that he lodged an application for a protection visa. His claims were that he fears persecution in Sri Lanka, both from the LTTE and from the authorities in Sri Lanka. Specifically, he claimed that he resigned from a tea estate at which he was working in 1995 because labourers who supported the LTTE repeatedly asked him for money and when he refused his life was threatened. He claimed that that happened once or twice every month over a two year period at two different tea estates.

7 The Tribunal did not accept those claims. The Tribunal had before it what it characterised as ample evidence that the LTTE is ruthless and deadly in its dealings with people who would be perceived as the enemy. Counsel for the appellant finally accepted that there was material before the Tribunal upon which such a conclusion could be based. Indeed, that is the appellant's case. The Tribunal then went on to say:

‘In persistently refusing to help the LTTE, the applicant would be perceived as the enemy. However, nothing adverse ever happened to the applicant by the LTTE or by supporters of the LTTE. The applicant’s own evidence to the Tribunal was that he continually and frequently refused to assist the LTTE over a two year period and that the LTTE threatened his life, but despite his claim that the LTTE threatened him "once or twice a month over a two year period", no harm came to him from the LTTE. I find that the fact that no harm came to the applicant from the LTTE or by supporters of the LTTE over a two year period is indicative of the fact that he was not approached by the LTTE or by supporters of the LTTE in the way that he has claimed and that he was not threatened with harm by the LTTE or by supporters of the LTTE in a way that he has claimed. I do not accept that moving from one tea estate to another is evidence of harassment by the LTTE, because the applicant chose to remain in the same area, being the central province and to remain in the same field of work. If he was indeed in fear for his safety or for the safety of his family, I am of the view that he would have moved away earlier than 1995. Therefore, I find that he did not resign from the tea estate at which he was working in 1995 for the reason that he has claimed, that he was being threatened by the LTTE. I find that he did not resign from any of the tea estates at which he was working because of alleged threats by the LTTE.’

The appellant’s claim is that the Tribunal had no evidence before it upon which it could conclude that the appellant would be perceived as the enemy of the LTTE.

8 However, that contention overlooks the clear reasoning of the paragraph that I have just cited. There is no evidence upon which the Tribunal based its conclusion, other than the evidence of the appellant himself and the undisputed evidence that the LTTE is ruthless and deadly in its dealings with people who would be perceived as the enemy. The reasoning of the Tribunal is clear enough, namely, that, if the refusal of the appellant to cooperate with the LTTE was something that caused offence to the LTTE, one would expect there to be some reprisals; however, the only allegation, even on the appellant’s case, is that more threats were made, none of which was carried out. I do not consider that there is any arguable basis for concluding that the Tribunal failed to afford the appellant procedural fairness, in so far as it did not invite him to comment on its conclusion that the appellant would be regarded by the LTTE as its enemy for persistently refusing to help the LTTE.

9 The second proposed new argument is said to be interrelated with the first. The proposition is that the Tribunal constructively failed to consider the appellant’s prospective risk of persecution, in so far as it drew inferences of fact unsupported by probative material and logical grounds and failed to exercise its decision making power in good faith. Counsel for the Minister accepted that, if there was a basis for establishing those propositions, that would at least be an arguable case for denial of procedural fairness. Four particulars are advanced in support of the two proposition.

10 The first is that, to determine that the independent evidence does not support the appellant’s claim that employees of the tea estate generally supported the LTTE, the Tribunal relied selectively on outdated and irrelevant information. However, whether or not to rely on independent country information is a matter for the judgment of the Tribunal. The weight that the Tribunal chooses to give to such material is also a matter entirely for the Tribunal. The appellant claimed before the Tribunal that employees of the tea estates generally supported the LTTE. It was not suggested that the evidence relied upon by the Tribunal did not support the Tribunal’s conclusion that that claim was without evidence. I do not consider that an assertion that the Tribunal relied on outdated material constitutes a basis for concluding that the Tribunal failed to consider the appellant’s risk of persecution by drawing inferences of fact unsupported by probative material and logical grounds. The Tribunal referred to country information that was available to it. That information has not been demonstrated to be irrelevant.

11 The second particular is that, in concluding that the appellant was not harassed by police authorities after his arrest in 1990, the Tribunal employed flawed logic to conclude that the appellant was not suspected of having any LTTE involvement: it was conceded by the Tribunal that, even if the appellant was of interest, he was not of adverse interest. Reference was made by the appellant to the following passage in the Tribunal’s reasons:

‘Even if I accept that the authorities questioned the applicant about possible LTTE activity on the tea estate and about the activities of the plantation workers under his supervision, I do not accept that the applicant was personally suspected of supporting the LTTE cause or of having any involvement with the LTTE. The applicant’s own evidence was that he was not political and that he did not support the LTTE. In addition, the applicant's own evidence was that he was always released by the authorities without being subjected to any serious harm and he was also supported by his supervisor at the tea estate. I find therefore that the applicant was released by the authorities because he was of no adverse interest to the authorities at the time. The applicant’s own evidence supports this finding. His evidence to the Tribunal was that he was not tortured and he was released because he was not involved in anything.
There is ample evidence before the Tribunal that states that persons suspected of supporting the LTTE or of LTTE involvement are seriously mistreated by the authorities. The fact that the applicant was not seriously mistreated by the authorities is strong evidence that he was of no adverse interest to the authorities.’

12 The argument seems to be that, because the appellant may have been arrested, he was of interest and that that is sufficient. The Tribunal’s reasoning, however, is clear. Even if the appellant was questioned and detained, he was released without any harm befalling him. That indicates that, whatever interest he may have had to the authorities, it was not adverse to him in the sense that it would not be likely to lead to any persecution of him by the authorities. I am unable to see any flaw in the reasoning adopted by the Tribunal in that passage.

13 The third particular is that the Tribunal erred in finding it implausible that the appellant was arrested and interrogated in March 1996 by the authorities because he did not have a political profile. Notwithstanding that, the Tribunal accepted that persons were detained and questioned by reason of their being Tamils not resident in Colombo, rather than by reason of their political profile. The passage to which the appellant refers in this context is as follows:

‘The applicant claims that he was interrogated in March 1996 about his travel to Colombo in January 1996. He claims that he was accused of assisting the LTTE in establishing himself on the tea estate and assisting the LTTE in carrying out bombings in Colombo. He claims that in order to get away from the authorities, he mentioned the names of Tamils who were supporters of Thondeman’s Labour Union as they had given false information to the police about his involvement with the LTTE.

I find these claims to be implausible because the applicant did not have a political profile and he did not support the LTTE. I have also already found that the applicant did not fit the typical profile of those Tamils most at risk in Colombo as he was not from the north or the east. Once his identity was established there was no reason for the authorities to have any continuing interest in him. The applicant's own evidence is that he was detained previously while in Colombo following the Central Bank bombing as part of a general roundup of Tamils but that he was released because he was not of any adverse interest to the authorities. In addition his own evidence of previous questioning by the authorities was that his supervisor vouched for his bona fides and he was always released. Therefore I find that the applicant was not arrested in March 1996 and that he was not detained as he has claimed. I find therefore that he did not mention any names of any Tamil employees on the estates in order to be released and accordingly, I find that he was not at risk from any possible reprisal by those people.’

14 The Tribunal made a clear finding that the appellant did not have a political profile. It also referred to material before it that indicated that it was only those who had a political profile who were likely to be detained in the circumstances that the appellant claimed he was detained in January 1996. The Tribunal accepted that the appellant, as a Tamil non-resident of Colombo, may have been questioned about his presence in Colombo and that he may have been detained until his identity was established. That was in the circumstances of the Central Bank bombing in January 1996. The Tribunal referred to the evidence that Tamils were detained and questioned in such circumstances but also concluded that the evidence showed that Tamils were only held for a period of up to 48 hours while their identities and bona fides were established.

15 The Tribunal referred to the appellant’s own evidence that, when he was detained following the Central Bank bombing, he was released quickly and while he was in detention, he was not harmed by the authorities. The evidence referred to by the Tribunal supports its finding that the appellant was not of such a political profile as would warrant any interest by the authorities and it is for that reason that the Tribunal found that he was not arrested in March 1996 and detained as he claimed. I do not consider there is any arguable basis for suggesting that the Tribunal reached that conclusion by drawing inferences of fact unsupported by probative material or logical grounds.

16 The final particular is the Tribunal’s conclusion, to which I have just referred, that the appellant was not detained for two months while his identity was checked. The assertion is that the independent evidence before the Tribunal conceded that not all persons detained were released within a short period of time. However, the Tribunal drew the conclusion that it was only those who were of interest to the authorities because of their political profile who were detained for any length of time. The reasoning of the Tribunal is quite clear, namely, that the appellant was not of such a political profile as would attract the attention of the authorities. There was material before the Tribunal that could support that conclusion. There was no drawing of an inference of fact unsupported by probative material or logical grounds in concluding that the appellant was not detained for two months as he claimed.

17 I did not understand any of the submissions made on behalf of the appellant to support the assertion that the Tribunal failed to exercise its decision making power in good faith. That is a serious assertion to make and I do not consider that there is any possible argument in support of it that has been advanced on behalf of the appellant.

18 It follows, in my view, that leave to amend should be refused. As I understand it, that leaves no ground of appeal upon which the appellant could succeed before this Court. It would follow, in my view, that the appeal should be dismissed.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 10 June 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD5 OF 2006

ON APPEAL FROM THE CHIEF FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1152 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGES:	EMMETT, STONE & BENNETT JJ
DATE:	8 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

STONE J

19 The new grounds of appeal, proposed in the amended notice of appeal on which the appellant seeks to rely, have no realistic chance of success. This is amply demonstrated in the reasons given by Emmett J, which I respectfully adopt. I agree with his Honour's analysis of the Tribunal’s reasons and his assessment of the claims made by the appellant in support of the present application. This is not a case where, using the criteria articulated by Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [167], the claims have a reasonable prospect of success. There is, in my view, nothing borderline about the present case. That being so, the other questions identified by Madgwick J do not really arise in my view. Nevertheless, I agree with Emmett J’s comments on those issues. It follows that I agree with his Honour’s proposed orders.

I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 19 June 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD5 OF 2006

ON APPEAL FROM THE CHIEF FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1152 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGES:	EMMETT, STONE & BENNETT JJ
DATE:	8 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BENNETT J :

20 I agree with the orders proposed by Emmett J and I respectfully adopt his Honour’s reasons and those of Stone J.

I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 19 June 2006

Counsel for the Appellant:	Dr J T Azzi
Counsel for the Respondent:	Mr G T Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 May 2006
Date of Judgment:	8 May 2006