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M1013 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 301 (12 November 2004)

Last Updated: 8 December 2004

FEDERAL COURT OF AUSTRALIA

M1013 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 301

MIGRATION – Appeal – no error disclosed – no denial of procedural fairness – Tribunal did not take into account irrelevant considerations

Migration Act 1958 (Cth) Part 8

























M1013 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 901 OF 2004





GRAY, KIEFEL AND DOWNES JJ
12 NOVEMBER 2004
MELBOURNE

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

THE COURT ORDERS THAT:

1.	Appeal dismissed with costs.

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

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

REASONS FOR JUDGMENT

GRAY J

1 I ask Justice Downes to deliver the first judgment.

DOWNES J

2 The appellant comes from Sri Lanka. He is Sinhalese. He arrived in Australia on 15 January 1996. Four days later he lodged an application for a protection visa. The application was refused by the Minister’s delegate and subsequently by the Refugee Review Tribunal.

3 The Tribunal found that the appellant had relocated from the east of Sri Lanka to Colombo by 1994. It found he no longer carried on the business he carried on prior to his relocation. It found he was no longer travelling to the east. In consequence it found that he was no longer at risk of detention by the Liberation Tigers of Tamil Eelam.

4 The appellant alleged that he had subsequently been detained twice by the Sri Lankan military as a result of being found with restricted items. The Tribunal did not believe him. It said the appellant’s story that he did not know he was carrying the goods was not plausible. It further found that as he was no longer travelling to the east he would not experience similar detention in the future.

5 The Tribunal did not accept that the appellant supported the LTTE or would be suspected of supporting it. It gave reasons. The Tribunal also found that no political opinion of support for the LTTE would be reputed to him and that it was not satisfied that he was at risk from government authorities. Again, it gave reasons.

6 Having made the above findings and given the reasons referred to, the Tribunal, in a following paragraph, accepted that there may have been cases of Sinhalese supporting the LTTE and referred to some incidents relied upon by the appellant. It then referred to a Department of Foreign Affairs and Trade Cable CL38234 relating to and discounting possible Sinhalese sympathy for the LTTE. It concluded that the information satisfied the Tribunal that the appellant would not be imputed with LTTE support.

7 The Tribunal went on to reject a claim that the LTTE had sought out the appellant in Colombo and rejected his claim generally, saying that there was no real chance that the appellant would face persecution for a convention reason should he return to Colombo.

8 On 7 July 1998 the appellant sought review of the Tribunal’s decision in this court pursuant to Part 8 of the Migration Act 1958 (Cth). Heerey J dismissed the application. There was no appeal.

9 On 29 May 2003 the appellant filed an application for an order nisi for prerogative relief in the High Court of Australia. The matter was remitted to this court. Crennan J granted the order nisi but then discharged it with costs. This is an appeal from those orders.

10 I will put aside the question of whether there is a res judicata or issue estoppel arising from the decision of Heerey J. I can dispose of this appeal more simply by reference to its substance.

11 This is one of many cases in which an applicant has simply failed to satisfy the Refugee Review Tribunal of the merits of the claim. The prerogative writs are not available to such disappointed applicants. The conclusions and reasoning of the Tribunal comprehensively and satisfactorily address the claim made to it.

12 In many such cases an attempt is made to find a technical error which vitiates the decision. That is what has happened here. The grounds are denial of procedural fairness and failing to take account of relevant considerations.

13 First, it is said that it is to be inferred that the Tribunal did not have regard to, but should have had regard to, both a report marked LKA15548.E relating to the use by Sri Lankan authorities of alleged LTTE affiliation to legitimise their arrest of anti-government Sinhalese and also the Cable CL38234. The documents together were said to be some evidence that if the authorities consider a Sinhalese to be supporting the LTTE or connected with the LTTE such a person might face arrest or prosecution.

14 Secondly, it is said that the Tribunal should have had regard to a US State Department report published in March 1996 relating to torture and mistreatment of detainees.

15 So far as the first matter is concerned the Tribunal did have regard to the cable. That casts doubt on the claimed inference that it was not aware of the report. However, because the Tribunal did not accept that the appellant supported the LTTE or would be suspected of supporting it the Tribunal did not, in any event, need to address the material relied upon. The Tribunal found that the appellant was not at risk because he was not a supporter of the LTTE and did not visit its areas of significant activity. Submissions relating to the cable would not have touched upon those findings nor would reference to the report.

16 The answer to the second matter is simple. Since the Tribunal was not satisfied there was a risk of detention it did not need to look at what might be anticipated in the event of detention. To the extent to which the appellant might be at risk of being accidentally caught up in activity by the authorities, that is not within the Convention.

17 The submissions put to us were substantially the same as those put to Crennan J. I have read her Honour’s judgment. I agree entirely with her Honour. In particular I agree with her reasons in paragraphs 28 and 29, 33 and 34 and 36.

18 The appeal must be dismissed with costs.

GRAY J

19 I agree with the orders proposed by Justice Downes and I agree with the reasons he has given.

KEIFEL J

20 I also agree.

Associate:


Dated: 12 November 2004