Applicant VRAA v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 553

FEDERAL COURT OF AUSTRALIA

Applicant VRAA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 553

MIGRATION – protection visa – appeal from Federal Magistrates Court affirming decision of Refugee Review Tribunal – whether particular claim dealt with – whether breach of natural justice in Tribunal’s dealing with dob-in letter

Applicant VRAA v Minister for Immigration and Multiculturalism and Indigenous Affairs [2004] FMCA 1013 affirmed
Minister for Immigration and Multiculturalism and Indigenous Affairs v Applicant VEAL [2004] FCAFC 179 applied

APPLICANT VRAA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NO. VID 21 OF 2005

HEEREY J
2 MAY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID21 OF 2005

BETWEEN:	APPLICANT VRAA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	2 MAY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

The appeal is dismissed with 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	VID21 OF 2005

BETWEEN:	APPLICANT VRAA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	2 MAY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court (Phipps FM): Applicant VRAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 1013. The appellant sought review of a decision of the Refugee Review Tribunal, which had affirmed a decision of a delegate of the Minister to refuse the appellant a protection visa.

2. The nature of the appellant’s claims, the evidence before the Tribunal and its findings are sufficiently summarised in the decision of the learned magistrate, which should be read in conjunction with these reasons. 

3. There were two grounds argued on the appeal.  These corresponded with the grounds on which the appellant had relied before the FMC.  The first ground was that the magistrate should have found that the Tribunal failed to correctly identify the appellant’s claims made in relation to fear of persecution by the Eelam People’s Democratic Party (EPDP).

4. The background to this is that the appellant, as had been accepted by the Tribunal, had been involved in the Eelam Revolutionary Organisation of Students (EROS).  In about 1990 EROS effectively split.  One faction joined the Liberation Tigers of Tamil Eelam (LTTE), and the other, the EPDP, to some extent supported or co-operated with the Sri Lankan government. 

5. In my opinion, the learned magistrate was correct in holding that the Tribunal adequately dealt with the claims that the appellant made insofar as they related to the EPDP.  In a part of its reasons headed “Claims and Evidence” the Tribunal said:

   “He claims that on another occasion, in October 1998 while on his way to a shop, he was identified by some members of the Eelam’s People’s Democratic Party (EDPD) who referred to him by his EROS pseudonym and detained and tortured him.  He said that he does not know how they identified him.  He said that his captors did not report him to the police. He claims that he told them he was soon to depart for Australia, so they agreed to release him if he paid a substantial bribe. He claims that he contacted a friend who arranged for a third of the bribe money to be paid and that he was then released on condition that he later pay the outstanding amount.”

6. Later in that part of its reasons headed “Discussion of Evidence and Findings”, the Tribunal said:

   “The applicant said that he does not know how members of the EPDP identified him while he was on a shopping expedition in Colombo in October 1998.  He was never taken by EPDP members to be interviewed by police officers or members of the armed forces.  He claims that although EPDP members demanded money from him as a condition of his release they took no action to collect the bulk of the money owed by him during the remaining four months he spent in Sri Lanka, even though he had informed them he was soon to leave the country.  That claim and his related claim that EPDP members only reported him to the authorities after he had left for Australia, and that police and members of the armed forces then searched for him at his home – two days after he had departed Sri Lanka legally – lack credibility; and the Tribunal finds accordingly.”

   Later the Tribunal said:

   “In assessing all of the foregoing the Tribunal finds that the applicant has fabricated his claims of harm in Colombo at the hands of the EPDP, and of the police and army.  It finds that he was not harmed for any Convention reason.  It also finds that he was not wanted by the authorities and that he was, accordingly, able to depart Sri Lanka legally.”

7. In dealing with this issue, the learned magistrate said at [16]:

   “The Tribunal, in its reasons, has not specifically formulated this [the claim made in relation to the EPDP and EROS] as a claim.  However, it has dealt with the claim.  In its reasons, the Tribunal set out what the applicant had said and then found that he had fabricated his claims of harm in Colombo at the hands of the EPDP and of the police and army.  Therefore, it has dealt with the applicant’s claim in relation to the EPDP and EROS.  The Tribunal has rejected the factual basis.  The facts on which the applicant relies have been found by the Tribunal not to exist.  The Tribunal found that the claim was fabricated.”

8. I am not all that sure that the Tribunal did not specifically formulate the applicant’s claim insofar as it related to the EPDP, but in any event, I think that the learned magistrate was plainly correct in pointing out that the Tribunal had necessarily dealt with the claim by rejecting its factual basis. 

9. Counsel for the appellant said that the Tribunal should have looked at the “deeper significance” of the political situation concerning the EPDP.  But there would be no point in doing this once the Tribunal concluded that the appellant’s account of the events of October 1998 was a fabrication.  The first ground therefore fails.

10. The second ground relates to the dob-in letter.  This was referred to in two places of the transcript of the hearing before the Tribunal.  At p 13 there is this passage in which the Tribunal asks:

    “Q.  There is also some other material on the file that I can’t give weight to because I can’t test this evidence but there’s a letter on file indicating that someone who knew you in Sri Lanka said that you had no problems there.  As I say I can’t give weight to that but it would seem to be on the basis that you got a passport, you were able to leave on that passport, you got a police clearance to leave the country and indeed in a letter that you gave to the Australian Embassy? –

    A.  Because I have got one with the EPDP now but because the EPDP has given information to the secondary [sic, presumably security] forces they sent me to [indistinct] and started ---”

11. Later, at p 26, in the course of discussion with an agent appearing on behalf of the appellant, the Tribunal said:

    “I have already indicated that I don’t give any weight to any of that kind of material on file.  It’s clear that there have been significant issues in the second marriage and there might be mixed motivation for claims ---?”

    This was in a context where the Tribunal was discussing the appellant’s alleged involvement with EROS and pointing out it was 15 years ago.  The agent was asserting that the appellant still had a high profile in Sri Lanka and, in seeking to meet what he thought were inferences to the contrary from the dob-in letter, said that the appellant was “now having so many problem” with his second wife, that “she will take all the step to send him home” and “this is fabricating so many things against him”.  The dob-in letter itself was not in the court book, but obviously enough it either came from, or was believed by the agent to have come from, the appellant’s second wife.

12. In its reasons the Tribunal said:

    “The Tribunal informed the applicant that it is in receipt of a dob-in letter.  It has been unable to test the content of that letter or the motivation of the writer and, accordingly, gives no weight to the material contained in it.”

13. Counsel for the appellant submitted that there had been jurisdictional error in that the Tribunal had not given natural justice to the appellant because it had made adverse findings based on material in the dob-in letter, without giving him an opportunity to provide any answer or comment. 

14. In developing his argument counsel said that the first passage from the transcript quoted above indicated that the letter had made reference to the appellant being able to get a passport and being able to leave on that passport.

15. It is true that the appellant’s leaving his country of nationality using a passport in his own name was treated as a relevant matter by the Tribunal, as it very frequently is in Tribunal hearings, for obvious enough reasons.  It was accepted by counsel for the appellant that there was no dispute as a matter of fact that the appellant had left Sri Lanka travelling on a passport in his own name.  Accordingly, the appellant suffered no adverse consequence merely by reason of the fact that the dob-in letter contained an obviously relevant fact which was not disputed.

16. The second way in which it was said there was a breach of natural justice was that the Tribunal did not say why it had been unable to test the contents of the letter.  However, once it is accepted that the Tribunal was genuine in saying that it did not rely on the contents of the letter to make adverse findings against the appellant (the contrary not being suggested before the FMC or on this appeal), the correctness or otherwise of its assertion that it was unable to test the contents of the letter becomes irrelevant and certainly does not provide the basis for a finding of jurisdictional error.

17. In my opinion, the learned magistrate was correct in finding that the dob-in letter had been correctly dealt with in a way found to be proper by the Full Court in Minister for Immigration and Multiculturalism and Indigenous Affairs v Applicant VEAL [2004] FCAFC 179. It is of particular significance here that the decision-maker said at the time of the decision that the letter had not been taken into account and the bona fides of the decision-maker have not been challenged:  see VEAL at [78].

18. Accordingly, I find that the two grounds of the appeal do not show that the learned magistrate was wrong in finding that there had been no jurisdictional error committed by the Tribunal.

19. The appeal will be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             2 May 2005

Counsel for the Appellant:	T A Fernandez
Solicitors for the Appellant:	Mano and Associates
Counsel for the Respondent:	R Knowles
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	2 May 2005
Date of Judgment:	2 May 2005