Applicant A273/2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1111

FEDERAL COURT OF AUSTRALIA

Applicant A273/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1111

MIGRATION – application for judicial review of Refugee Review Tribunal decision – whether applicant accorded procedural fairness – where Refugee Review Tribunal made findings as to credibility on the basis of handwriting comparisons which evidenced inconsistencies in the original protection visa application and the case on review – where findings as to credibility supported by other evidence/inferences – application dismissed. 

APPLICANT A273/2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 236 of 2003

LANDER J
ADELAIDE
14 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 236 OF 2003

BETWEEN:

A273 OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

CHRIS KEHER, MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

14 OCTOBER 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        Application dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 236 OF 2003

BETWEEN:

A273/2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

CHRIS KEHER, MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	LANDER J
DATE:	14 OCTOBER 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (RRT) made on 20 June 2002 in which the Tribunal affirmed a decision of the respondent’s delegate not to grant the applicant a protection visa.

2. The applicant commenced these proceedings in the High Court of Australia and a Justice of that Court remitted the proceedings to this Court for determination. 

3. On 26 May 2003 an Order was made by a Judge of this Court that the applicant file and serve an amended application specifying precisely the error or errors upon which the decision under review was challenged.

4. An amended application was filed on 30 June 2003 in which the applicant sort a writ of prohibition to restrain the first respondent from acting upon or giving effect to the RRT decision;  a writ of certiori directed to the second respondent removing the decision to this Court to be quashed;  a writ of mandamus directed to the third respondent directing him to appoint a member of the tribunal to rehear and redetermine the applicant’s application for a protection visa;  and an injunction against the third respondent requiring him to appoint a member of the tribunal other than the tribunal member who made the decision complained of to rehear and redetermine the applicant’s application.

5. Effectively only one ground was relied upon for the relief sought in that application.  The applicant complained that at the hearing before the tribunal a breach of the rules of natural justice had occurred in that the applicant had been denied procedural fairness because the tribunal took into account material which was relevant and adverse to the applicant’s claim for refugee status without giving the applicant notice of the material or the opportunity to address it.  The application described the adverse material as consisting “largely of ‘country background information’”.  The application specified the steps that the applicant would have taken if he had known that the RRT intended to have regard to the adverse materials.  In particular the applicant would have placed additional evidence before the RRT refuting the country information.  No affidavit was filed in support of the amended application.

6. In response to that application the respondent filed a notice of motion seeking to have the matter summarily dismissed pursuant to O 20 r 2 of the Federal Court Rules on the ground that the amended application was not supported by any evidence which disclosed that the RRT took into account adverse material without first giving the applicant notice of the material or an opportunity to address that material.

7. That notice of motion prompted the applicant to file a further amended application for an order for review of the RRT decision.

8. In that further application the same relief was sought but the grounds relied upon were different.  In the further amended application the applicant complains that the RRT found, contrary to his assertions before the RRT, that he was the author of hand written material and that the RRT made the further finding that his assertions could not be believed.  The applicant also complains of a further finding that the RRT made in relation to the applicant’s unwillingness to have the RRT contact his employer.

9. This further amended application was supported by an affidavit of the applicant which addressed the subject matter of the application. 

10. The matter had been previously listed to hear the respondent’s notice of motion seeking to have the matter summarily dismissed.  That notice of motion was, as has been demonstrated, overtaken by the further amended application and supporting affidavit.  In the end result, with the agreement of the parties, I heard the further amended application.  The respondent did not wish to adduce any evidence on the applicant’s further amended application.

11. The applicant was born in 1963 in Sri Lanka and left Sri Lanka in March 1999.  He resided in Fiji until 7 August 1999 when he left that country and arrived in Australia.

12. He left Sri Lanka legally, travelling on a passport which had been issued to him in 1992.  The passport had been extended in March 1999 by the authorities in Colombo.

13. Whilst he lived in Fiji he worked for a garment company as a quality controller. 

14. On 11 August 1999, shortly after his arrival, the applicant lodged an application for a protection visa.  The application was refused on 2 December 1999 by a delegate of the Minister.  On 23 December 1999 he applied for a review of that decision and on 20 June 2002 the RRT affirmed the delegate’s decision not to grant a protection visa.

15. He claims to be entitled to a protection visa because he was a member of the Janatha Vimukthi Peramuna (Peoples Liberation Front) (JVP).  The JVP is a political party made up of Marxists youths who largely are members because they are disillusioned by the failure of the traditional ‘left’ leaders.  The party was formed in 1964 with an alignment to the Peoples Republic of China.  It was first banned during a coup attempt in 1971.  The ban was lifted in 1977 but the JVP was banned again in 1983 after riots.  The ban was again lifted in 1988 although the party remained underground conducting a guerrilla operation.

16. In the 2000 election ten of its candidates were elected.  In the election in 2001 the JVP again put forward candidates, 16 of whom were elected, all of whom supported the Prime Minister. 

17. No particular finding was made by the RRT about the present activities of the JVP because the RRT was able to reach a decision on other matters.

18. The applicant’s case before the RRT was that, as a member of the JVP, he feared that if he returned to Sri Lanka the police and army might persecute him.

19. He said that he had been involved in two incidents which made him a target for persecution.  The first was an incident when people of his village destroyed a politician’s bungalow.  The second incident occurred whilst he was hiding because of the first incident and two police officers were killed outside the house in which he was hiding.  He said that as a result of those two incidents he went into hiding and lived in the bush for 10 years.

20. The Tribunal disbelieved the applicant.  It found that the applicant was not a truthful witness and did not accept any of his claims as being true.  Specifically the Tribunal rejected his claims that he was involved in the two incidents to which I have referred.  The Tribunal found that the applicant did not have a fear of persecution on any Convention ground.  The Tribunal further noted that ‘… if he has in fact a fear of harm in Sri Lanka he could have applied for protection in two Convention signatory countries on his way to Australia.  Fiji and New Zealand.  The fact that he did not clearly indicates to me that he has no subjective fear.’

21. In rejecting the applicant as a witness of truth, the Tribunal relied on two matters.

22. First it had regard to the applicant’s application for a protection visa which it found to be inconsistent with the claims he made to the Tribunal.  In his application the applicant asserted that he had been employed between February 1990 and December 1998 as a quality controller in the food department in Colombo, Sri Lanka.  The Tribunal formed the preliminary view that that assertion was inconsistent with his claim that he had been hiding in the bush for 10 years.  During the hearing before the Tribunal the RRT brought that inconsistency to his attention.  He responded by claiming that he had not written the original application but that some other person had written it for him and had made mistakes in the information provided.  It was then put to him that the handwriting was the same as other examples of his handwriting which were included in the files.  He denied that.  He said that he had not been employed in Sri Lanka as a government quality controller.  The reference should have been to garment quality controller which was his position in Fiji.

23. He was also asked if he was presently working in Australia.  He was asked whether he had submitted information to his present employers as to his past work experience in order to gain the employment in Australia.  He told the Tribunal that he had told his present employer that he had worked for a period of years in Sri Lanka but could not be precise about what his employer was told.  The Tribunal offered to telephone the personnel officer to ascertain the information which had been given to his Australian employer.  The applicant agreed.  Whilst the member of the Tribunal was making that telephone call, the applicant objected on the basis ‘that he did not want the Tribunal to do this as he had told them he was a permanent resident and they did not know of his status in Australia, and he feared that he may be sacked’. 

24. The Tribunal relied upon the similarities in the handwriting appearing in the files to support a finding that the applicant was the author of the application.  Thus the RRT concluded that his assertion that the application forms were written by someone else was untrue.

25. It relied upon that matter in part for its finding that the applicant’s claims were untrue.

26. It also relied upon the fact that the applicant had obtained and renewed a passport without any difficulty as further evidence of an untrue claim that he was hiding in the bush for a period of 10 years.

27. Moreover the RRT relied upon the applicant’s unwillingness to allow the RRT to contact his employer as indicating ‘that he did not want the extent of his work experience in Sri Lanka to be discovered by me’. 

28. The applicant claims he was denied procedural fairness in two respects.  First, because the Tribunal made the finding that the applicant had been untruthful about the handwriting on the original application.  In that respect the applicant’s argument was that if the Tribunal had any doubts about the handwriting it could have suggested that the handwriting be sent for examination.  Alternatively the Tribunal should have provided the applicant with an opportunity to organise for a handwriting expert to provide an expert opinion in relation to the handwriting.  Secondly it was asserted that the RRT failed to accord the applicant procedural fairness in concluding that the applicant did not want the extent of his work experience in Sri Lanka to be discovered by the RRT.

29. There is no doubt that there was an obligation upon the RRT to bring this matter to the applicant’s attention to allow him the opportunity to explain the inconsistency.  It did so plainly and unambiguously.

30. The RRT made it quite clear to the applicant that it thought that his account to the RRT was inconsistent with the application apparently completed and signed by him.  There could have been no doubt in the applicant’s mind, and his adviser’s mind, that he had to be able to give a satisfactory explanation for the inconsistency.

31. The RRT said:

    ‘It was put to him that these claims and the history being given were inconsistent with what he had claimed and given as his history to the Department (specifically in that application he gave detail of working for the government, living at the same address, obtaining a passport and having it renewed).’

32. The RRT was not satisfied with the explanation and that was a matter for the RRT.

33. The RRT was under no obligation to submit the application to a handwriting expert itself.  Nor was it under an obligation to advise the applicant to submit the application to a handwriting expert.  In any event, the applicant did not need that advice.  As the RRT reasons record, the applicant’s adviser suggested that ‘if the Tribunal had any doubts about the handwriting, perhaps they should be sent for examination’.

34. When that suggestion was made to the RRT the Tribunal member advised the applicant’s adviser that it had no doubt about the matter.

35. At that time the applicant and his adviser could have been under no misunderstanding.  If the applicant then wished to have the document examined, that was a matter for the applicant.  The Tribunal had no obligation to give any advice to the applicant or his adviser.

36. Of course if the applicant at that stage had sought to have the matter adjourned or delayed so that the applicant might obtain evidence from a handwriting expert, in my opinion the Tribunal would have been under an obligation, having regard to the importance of the matter, to adjourn or delay making a decision.  However, no such application was made.

37. In my opinion the RRT did all that was necessary to bring to the attention of the applicant a matter which the RRT believed to be important in a consideration of its decision.

38. It accorded the applicant procedural fairness in that regard.

39. The applicant complains about the finding which the Tribunal made about the handwriting.  However that finding was open to the Tribunal.  It was entitled to reach a conclusion on the similarities of the handwriting.  Once it did it was inevitable that that finding would be important in the RRT’s assessment of the applicant’s credibility. 

40. The RRT also found that the applicant withdrew his permission for the RRT to contact his Australian employer to avoid having the RRT discover information given by the applicant to the Australian employer which was inconsistent with his account to the RRT.

41. The applicant gave as a reason why he did not want the RRT to contact his employer;  that he had provided his employer with false information as to his residency status in Australia.  That reason was not implausible.  It would not be unreasonable to assume that a person in the applicant’s position might have told his employer that he was a permanent resident in an endeavour to obtain employment.  One could imagine that an employer would be less likely to employ a potential employee who was on a bridging visa because that person would be likely to be removed at any time which might disrupt the employer’s business.  Therefore, I accept the argument advanced by the applicant on this application that his explanation was not implausible.

42. However, there was evidence from which the RRT could infer, contrary to the applicant’s assertion, that the real reason for the applicant refusing the RRT permission to contact the employer was to avoid the RRT discovering the information he had given to his Australian employer about his previous employment. 

43. Whether or not such an inference should be drawn was peculiarly a matter for the RRT.

44. It is not for this Court, on an application such as this, to enquire into the merits of the decision.

45. The applicant has asked me to review the decision on the basis that he was not accorded procedural fairness.  The finding made by the RRT was an inference open to it upon the evidence and the making of that inference did not breach the RRT’s obligation to accord the applicant procedural fairness.

46. In my opinion the application should be dismissed. 

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:            14 October 2003

Counsel for the Applicant:	Mr M W Clisby
Solicitor for the Applicant:	M W Clisby
Counsel for the Respondent:	Mr L K Leerdam
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 August 2003
Date of Judgment:	14 October 2003