Applicant M185/2003 v MIMIA & Anor [2006] HCATrans 385 (3 August 2006)

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Applicant M185/2003 v MIMIA & Anor [2006] HCATrans 385 (3 August 2006)

Last Updated: 8 September 2006

[2006] HCATrans 385

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M151 of 2005

B e t w e e n -

APPLICANT M185 OF 2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 AUGUST 2006, AT 9.22 AM

Copyright in the High Court of Australia

KIRBY J:

Background

The applicants were a husband, wife and child of Sri Lankan nationality. The applicant husband (from his claims those of the wife and child were derivative) arrived in Australia from Sri Lanka in 1995 on a visitor’s visa. In April 1996 he applied for a protection visa pursuant to the Migration Act 1958 (Cth), claiming refugee status for himself and his family. In September 1996, a delegate of the Minister refused this application. The applicant sought review of that decision by the Refugee Review Tribunal (“the Tribunal”). On 17 January 1997, the Tribunal dismissed the application and affirmed the primary decision.

Thereafter, the applicants joined the Muin and Lie proceedings in this Court, claiming constitutional writs addressed to the Minister and the Tribunal. By order of Gaudron J, the applicants’ application in this respect was remitted to the Federal Court of Australia. It was returned in that Court before Finklestein J. His Honour considered various complaints made by the applicant husband concerning the procedures before the Tribunal. These related to the Tribunal’s suggested failure to accord procedural fairness in the use it made of country information concerning Sri Lanka; in the determination of particular facts relating to the conduct of the applicant husband when in Sri Lanka; and in its suggested use of irrelevant considerations concerning failed applications for asylum by the applicant husband’s brothers and the omission of the applicant wife to give evidence. Finklestein J, whilst remarking that certain uses of the criticised evidence would have been erroneous, was unconvinced that any of the suggested infractions demonstrated procedural unfairness warranting judicial review. Therefore, in October 2004, Finkelstein J dismissed the applicants’ application for judicial review.

The applicants then appealed to the Full Court of the Federal Court. By decision dated 4 November 2005, that Court (Sundberg, Marshall and Merkel JJ) dismissed the appeal. Their Honours acknowledged that the taking into account of irrelevant considerations or the denial of procedural fairness might give rise to reviewable error. However, like the primary judge, the Full Court was not satisfied that either of the matters relied on came within this category. Their Honours therefore found no error in the approach of the primary judge or of the Tribunal. They dismissed the appeal.

The applicant’s claim for protection was based on his alleged political opinions. He stated that he was a Sinhalese national of Burgher ethnicity and had been a member of Janatha Vimukthi Peramuna (the “JVP”), a pro-Sinhalese organisation, from 1985. He attributed acts of harassment and oppression, which he described, directed to himself and his wife, to his having joined the JVP. However, the essential reason for the Tribunal’s rejection of the applicant’s claim was that it was not satisfied that he ever had an association with the JVP or such an association that would give rise to a well-founded fear of persecution. The material advanced by the Tribunal in support of that conclusion discloses that it was one fully open to the Tribunal. It was not the function of the Federal Court, in the proceedings before it, to second guess the factual determinations of that issue, under the guise of a remitted proceeding for a constitutional or equivalent writ.

Disposition

We have carefully considered the applicant’s written case, which is addressed to the use by the Tribunal of allegedly irrelevant considerations in reasoning to its conclusion. We have also considered the reasons which the Tribunal gave for its decision and the reasons of the judges of the Federal Court. We do not regard this highly fact-specific case as one suitable for the grant of special leave. Whilst decisions of this kind are important for the persons involved, and whilst procedural unfairness can in a given case invalidate an administrative decision and justify an order of judicial review, there is, in this case, no issue of general significance. The applicant has not advanced questions of law that would warrant the intervention of this Court. The answer to the applicant’s complaints is adequately given by the Full Court of the Federal Court. The Tribunal’s decision was open to it on the basis of its assessment of the applicant’s lack of credibility and on the further basis that it was unlikely that the applicant had a well-founded fear of persecution in the foreseeable future, even if his primary factual claims were to be accepted.

The application for special leave must therefore be refused.

Order

Pursuant to r 41.10.5 of the High Court Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave. I publish that disposition signed by Callinan J and myself.

AT 9.26 AM THE MATTER WAS CONCLUDED