Applicants S69 of 2003 v Minister for Immigration - [2004] FMCA 754

FEDERAL MAGISTRATES COURT OF AUSTRALIA

APPLICANTS S69 of 2003 v MINISTER FOR IMMIGRATION

[2004] FMCA 754

MIGRATION – RRT decision – findings and reasons for doubting credibility – no jurisdictional error – five years delay while pursuing other visas – relief would be refused.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.351, 417, 474, 477(1A), 483A, Part 8

Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Applicants S134/2002 (2003) 211 CLR 441
Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S154/2002 [2003] HCA 60, 201 ALR 437
Re Minister for Immigration and Multicultural Affairs & Anor, Ex parte Miah (2001) 206 CLR 57
Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82
S69 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 904
Thayananthan v MIMIA (2003) 132 FCR 222
VRAW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1133
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74

Applicants:

APPLICANTS S69 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1418 of 2004

Delivered on:

10 November 2004

Delivered at:

Sydney

Hearing date:

27 October 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicants:

Mr T Silva

Solicitors for the Applicants:

Silva Solicitors

Counsel for the Respondent:

Mr R J Bromwich

Solicitors for the Respondent:

Clayton Utz

ORDERS

Objection to competency upheld.
Application dismissed.
Liberty to either party to apply on the issue of costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1418 of 2004

APPLICANTS S69 of 2003

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application invoking the Court’s jurisdiction under s.483A of the Migration Act 1958 (Cth), which challenges a decision of the Refugee Review Tribunal dated 12 March 1998 and sent to the applicants on 16 March 1998. The decision affirmed decisions refusing protection visa applications made by a husband and wife, with their two children as secondary applicants. All four members of the family are named as applicants in the present application, but, as did the Tribunal, I shall refer to the husband as “the applicant” since he made the principal claim for refugee protection.
The application to this Court was filed on 7 May 2004, over six years after the Tribunal decision which it challenged. It will be necessary for me to refer to what happened during those years, when dealing with the respondent’s submission that relief (if grounds are made out) should be denied on the ground of unwarranted delay. However, I shall first address the applicant’s grounds for setting aside the decision.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction of the Federal Court is its general judicial review jurisdiction conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) and by s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act.
A judicial review jurisdiction can provide a remedy to an aggrieved person only where a legal defect can be identified in the administrative action under challenge, and it is axiomatic that it does not extend to correcting an error which is merely an error of fact or assessment of the merits.
Significant limitations on the Federal Court’s general judicial review jurisdiction are imposed by Part 8 of the Migration Act on any application to a court which is “in respect of a privative clause decision” as defined in s.474(2). For such applications, which include applications for review of decisions of the Refugee Review Tribunal, the simple language of s.474(1) appears to prevent the Court from giving any remedy for a defect of any kind. The simple language is subject to implied Constitutional qualifications, but these still leave the Court with reduced power to intervene in relation to a Tribunal decision if it answers the definition of “a privative clause decision” in s.474.
I need not address the Constitutional qualifications further in this case, since the applicants presented their challenge on the basis that they must establish that the decision of the Refugee Review Tribunal is not a “privative clause decision” according to the interpretation of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [15] and [76-7], and in subsequent cases. In these cases the High Court has held that limitations under Part 8 of the Migration Act on generally available judicial review remedies do not apply to a challenge to a decision which is in law a nullity because it was vitiated by jurisdictional error. In such a case, where there has been an actual or constructive failure to exercise a power of decision governed by provisions of the Migration Act, this Court can declare void or quash or set aside a purported but legally ineffective decision, and can order that the decision-maker perform or complete its duty to determine the case according to law.
The applicants made their protection visa applications on 11 June 1996, shortly after arriving in Australia on visitors’ visas. They were assisted by a solicitor, Mr Karp, at all stages in its preparation and in their appeal to the Tribunal. Mr Karp summarised the applicant’s claims in a submission to the Tribunal prior to its hearing:
1.He is a Sri Lankan Tamil, born in Jaffna in 1952.
2.After finishing school in 1971 he worked in a variety of jobs in the north of Sri Lanka until he left for the Middle East to work in 1980.
3.He and his friends started becoming interested in politics in the mid 1790s. After being initially attracted to the moderate Tamil United Liberation Front (TULF) he became disillusioned with their lack of action, and started working for the more militant Liberation Tigers of Tamil Eelam (LTTE). He became disillusioned with the LTTE after they started dealing harshly with opponents.
4.He returned to Sri Lanka from the Middle East for a short visit in December 1981 to January 1982. In December 1983 he arrived for a longer visit. After spending six weeks with his wife in Jaffna he travelled to Colombo to return to the U.A.E. Whilst staying with friends in Kotahena he was abducted, assaulted and imprisoned and interrogated. He was finally released after payment of a large bribe.
5.He then returned to the U.A.E. After hearing that his wife had been harassed by the army, he arranged to have her join him. They remained in the Middle East for 12 years. During this period he assisted in collecting money for Sri Lankan Tamil charities.
6.The family took a holiday in 1996, arriving back in Colombo on 2 March. They obtained visas to visit Australia, as they had been invited to do by a friend in Sydney. He was abducted from a checkpoint in Colombo, beaten and detained. He managed to pay a bribe to escape.
7.After that they returned hurriedly to the U.A.E. where the applicant found that there was a shortage of work and that his visa was to be cancelled. He went back to Sri Lanka, staying in a hotel in Hikkeduwa until he could catch a plane to Australia.
In its reasons, the Tribunal recounted the evidence concerning these claims at greater length, and set out an extensive examination of recent background information about the political situation in Sri Lanka in so far as it was relevant to the claims. It then turned to an examination of the applicant’s case over five pages. The applicant’s grounds of review picked out several passages in this examination as separately and cumulatively demonstrating a general flaw in the decision. As I understood it, this was that the Tribunal’s refusal to accept the truth of significant parts of the applicant’s claims was “unreasonable to a degree of Wednesbury Unreasonableness”, and that this error so affected the Tribunal’s ultimate conclusion – “there is no basis on which the Tribunal can be satisfied that they are refugees within the meaning of the Convention” – that it constructively failed to perform the review required under the Act.
To understand this argument it is necessary for me to set out the whole of this part of the Tribunal’s reasoning starting at Court Book 177. I shall highlight the challenged passages, and number the paragraphs for convenient reference.
1.The Tribunal had considerable difficulty with large parts of the applicant’s story, and found it difficult to get the applicant to recount various elements of his story in any detail, or to answer directly the often very specific questions put to him about specific issues. The applicant appeared to be evasive in his answers. This raised in the Tribunal’s mind doubts about the extent to which the applicant was being truthful.
2.The Tribunal allowed from the applicant’s advisor a post-hearing submission on credibility, and that submission argued, amongst other things, that cultural differences and translation issues accounted for a number of inconsistencies and behaviours, and that the Tribunal should not introduce its own cultural preconceptions into the enquiry.
3.The Tribunal notes that no objection was made to the Tribunal at the time of hearing about concerns regarding translation itself, although there was ample opportunity to do so. The Tribunal is fully aware of the range of preconceptions which it is possible to introduce into situations, both between cultures and indeed within cultures, and has carefully considered the comments of the advisor. Even allowing for such possibilities, the Tribunal has found applicants from both this particular culture and from a range of other cultures to be able to both understand specific questions and to answer them directly when they are telling their own story. It is the Tribunal’s view that the applicant in this particular case has not been as forthcoming as he could have been despite repeated attempts by the Tribunal to have the applicant focus on the issues it sought to address, and the Tribunal considers that this reflects on the general credibility of the applicant.
4.The applicant claimed that, in the 16 years he lived in the UAE, he returned to Sri Lanka four times only, in 1982, in 1983, and twice in March 1996 when he stated he had to flee the country and then return. He claimed that in 1983 and on the first visit in March 1996, he was detained by authorities and tortured, and on each occasion released only on the payment of bribes. He claimed that on the last occasion he visited Sri Lanka he was not detained by authorities because he spent his time staying inside a hotel in a tourist area south of Colombo.
5.The Tribunal has some concern about the credibility of whether the applicant was indeed detained as he suggested on those two occasions. The Tribunal is prepared to accept that the applicant may have been detained in February 1984, which was some eight months after communal rioting in Colombo, and many Tamils fled to the north. However, this event occurred some 15 years ago, under a different government, in the aftermath of communal riots, and the Tribunal does not consider that the applicant would be at risk now from the authorities as a result of this incident.
6.In relation to the second incident, the Tribunal notes that the applicant indicated a somewhat similar scenario. The applicant said that he had been blocked by police or army on a random check, and was asked in English if he were a Jaffna Tamil. He was taken again by a truck and put in a camp, and interrogated about the LTTE. He was beaten often when he could not give them answers. He said that a Sinhalese soldier told him after two days that they were doing this for money, and he was released on the basis that he would return in two days time with money and the soldiers would then give him back his documents.
7.The Tribunal is not convinced that the second incident occurred. The Tribunal does not accept that if some corrupt officials were seeking money from the applicant, that they would release him, and then arrange to meet him two days later, rather than have his family or friends bring money immediately to them. There would be every opportunity in such a scenario for the applicant to contact a lawyer upon release seeking legal protection and redress before the applicant was required to return with the money two days later. While the Tribunal accepts that certain Tamils continue to be at risk in Sri Lanka, the fact is that it is a country which has had a long tradition of the British system of law, and where in practise as well as in structure there is the capacity to resort to the protection of the government and the courts. (See for example US State Department Report on Human Rights in Sri Lanka 1997). However, there is no indication that the applicant at any stage sought legal advice or the protection of the government.
8.The Tribunal’s lack of conviction about this incident is compounded by the fact that the applicant and his wife gave differing accounts of it. For example, the applicant indicated that he was detained about midday on 6 March, and was returned about 5pm on 8 March. The applicant’s wife indicated that he returned about midday. The applicant’s advisor has argued that their memories may have differed because the incident occurred 20 months ago, or alternatively that when the wife referred to about midday she could have meant during the daylight hours rather than the night-time hours. The Tribunal has considered these possibilities, but does not accept them as sufficient explanation. The Tribunal was quite precise in questions about time, and the applicant and his wife had on these issues been precise in their answers. While it is true that in some cultures, not necessarily Sri Lankan culture, issues such as time can have a very general meaning, the Tribunal does not accept that in this instance there was any cultural misunderstanding about what the time referred to was.
9.This concern by the Tribunal is compounded by the issue of the applicant’s travel plans to Australia. The applicant indicated in his original statement in support of his protection visa that he had been refused an Australian visa in the UAE, and had been told to apply from Colombo, as he was returning there. The applicant’s statement then said, “the family arrived back in Sri Lanka on 2 March 1996 … I obtained Australian visas for my wife and myself on 4 March 1996”.
10.The movements records of the applicant and his family show that the applicant’s family in fact arrived back in Sri Lanka on 10 February 1996, and the applicant wife was issued with a visitor visa to Australia for herself and the children on 14 February 1996. The applicant himself arrived back in Sri Lanka on 2 March 1996, and was issued with an Australian visa on 4 March 1996. The applicant alleges that the incident then occurred on 6 March 1996. In the Tribunal’s view, the applicant has contrived this event after the family was issued with their visas for the purpose of obtaining refugee status in Australia.
11.This belief is reinforced in the Tribunal’s mind by the fact that the applicant and his family were able to return from Sri Lanka to the UAE apparently without any problems from the authorities; to return again to Sri Lanka two weeks later; and to depart for Australia after a further 17 days in Sri Lanka without any problems. The Tribunal has considered the applicant’s explanation that he returned to the UAE to resume work, but on arrival back was told that he would no longer be needed, and therefore returned to Sri Lanka. However, the Tribunal is not required to make a finding about whether this was so.
12.The Tribunal notes that the husband and wife had different versions of when they intended to visit Australia. One said they had intended to visit straight from Sri Lanka after their original arrival in February/March 1996, the other indicated they intended to return to the UAE and then visit Australia from there. The Tribunal has considered the advisor’s explanation of this discrepancy as “differences in perceptions between spouses, which may alas be a source of conflict ... or a breakdown in communication, which is but an incidence of married life” but does not accept this explanation. In the Tribunal’s view, the pattern of different timings of application for Australian visas was intended to maximise the success of the applications for visitor visas for the whole family.
13.The Tribunal notes the applicant’s claims that the applicant himself was a target because at roadblocks he was identifiable as a Tamil from the north who was newly returned from the UAE, and thus would be under suspicion of contact with the LTTE and would be the subject of extortion because of the money he had earned overseas.
14.The Tribunal accepts that it is possible that corrupt officials could in fact extort money from people returning from overseas, and that Tamils, who are more likely to be checked by authorities because of the ethnic nature of the LTTE insurgency, would therefore be more likely to be subject to this form of corruption. Nevertheless, not all Tamils are subject to checks, and not all Tamils in Sri Lanka are subject to persecution. The applicant himself does not fit the profile of those likely to be detained.
15.While the applicant is a Tamil from the north, it was many years since he had lived there; he was also someone who is well outside of the age group likely to attract attention; and was a married man with a long-term settled job in a country not known to have a significant LTTE presence. While the applicant himself claimed at hearing that he could not send his wife and children back to Sri Lanka from Australia because of the prospects of rape and torture for them, he appeared to have no difficulty in fact in letting them go to Sri Lanka by themselves and stay there for over two weeks before he himself went to Sri Lanka to join them. This does not appear in the Tribunal’s mind to be the actions of a person in fear for his family’s safety.
16.The applicant wife indicated that she lived in a rented house by herself with the two children, and that she had no difficulty in that time. She indicated she had no difficulty in getting around Colombo and regularly visited her sister who she said was a nun visiting Colombo from Jaffna. This appears to the Tribunal to be a relatively normal life. Clearly, despite the earlier claimed incident, the applicant was not so concerned for his family’s safety that he thought they would be in any real danger in being in Colombo by themselves.
17.The Tribunal further has concern about the discrepancy between the applicant’s written statement that “we stayed with a friend in Bambalipitiya” and the applicant’s wife’s statement at hearing that she and the children stayed in a rented house and did not visit anybody because she had no friends and did not know the area.
18.The Tribunal notes three letters which the applicant said were written by his wife’s sister; a priest in Colombo; and apparently the Bishop of Jaffna saying that the children were known to the author.
19.The Tribunal has considered the applicant’s advisor’s arguments that the sister’s letter reiterates family problems and therefore their claims to refugee status, and suggests that the tone of the letter is that of one relative berating another for being stupid. Even if the Tribunal accepts that this letter is written by the sister, however, it considers the content of the letter is contrived and self-serving and the Tribunal is not convinced that it is simply a letter berating another for being stupid.
20.Similarly, the Tribunal has considered the arguments by the adviser about the other two letters, but considers them also contrived in tone. In relation to the letter signed as the Bishop of Jaffna, the Tribunal notes that the writer indicates that the family, including the children, are known to the writer. Given that the applicant indicated that the children had never been to Sri Lanka until 1996, and the applicant says his family was in Colombo during the short time they were there, the Tribunal has considerable concerns about the authenticity of this document. The Tribunal notes that the applicant’s advisor has indicated in his post-hearing response on this matter that he considers that the letter is simply of no evidentiary value.
21.The Tribunal has given careful consideration to the information and the applicant’s story as a whole. Having considered all of this information, however, the Tribunal considers that there is only a remote chance that the applicant would be persecuted for reason of his ethnicity or his imputed political opinion if he were to return to Sri Lanka today.
22.The applicant claimed that while living in the north he had firstly joined the TULF, and then joined the LTTE. He claims that in each case he had become disillusioned with these parties, with the TULF because they did not appear to be effective, and with the LTTE because they were violent. The applicant claimed that in each case he had simply helped with collecting money and books and food and clothing for the poor, and with setting up stages for rallies and posters for the TULF.
23.The Tribunal accepts that the applicant may have been a low-profile member of both groups during the time he lived in Jaffna. The Tribunal notes, however, that these events in which the applicant claimed involvement with the LTTE occurred 18 to 22 years ago, and does not consider that the government would be interested in him now for low-level activities in which he participated all that long ago.
24.Similarly, the Tribunal considers that there is only a remote chance that the LTTE would be interested in the applicant for reason of his low-level association with the TULF so long ago. In this regard the Tribunal notes that the applicant was not at any stage harmed by the LTTE for his prior membership of the TULF when he lived in Jaffna, despite the fact that he had been a member of the TULF immediately before joining the LTTE.
25.No specific Convention claims have been made on behalf of the applicant wife and children. Therefore there is no basis on which the Tribunal can be satisfied that they are refugees within the meaning of the Convention.

Counsel for the applicants addressed the grounds for review set out in an amended application filed on 30 September 2004 as amended at the hearing, but did so in an order differing from the Further Amended Application. I shall repeat and address them in the sequence of his oral submissions, but shall retain their numbering from the application.

Ground 6(a): The Tribunal was unreasonable, in the Wednesbury sense, in not checking the authenticity of the letters from the Bishop and the Priest by contacting them by phone.

Ground 6(b): The Tribunal made jurisdictional error in finding without evidence that two documents, namely the letters from the wife’s sister and a priest, were contrived.

These grounds challenged the Tribunal’s reasoning which is highlighted in paragraphs 19 and 20 of the extract from its reasons set out above. The letters were dated after the applicants’ visa applications, and referred to knowledge of the applicants and of events which corroborated their claims. One letter was from the applicant wife’s sister, and the other two had signatories described as a priest and a bishop with letterheads that identified their addresses.
It was submitted that the Tribunal, in effect, disregarded the letters from the priest and bishop by holding that they were not “authentic”, and that it was unreasonable, and not open as a matter of law, for the Tribunal to do this without contacting these people by phone to verify their authenticity. It was submitted that the finding that all three letters were “contrived and self-serving” and “contrived in tone” was made without evidence or explanation. It was submitted that these errors resulted in a failure to exercise jurisdiction.
I do not accept these submissions. In relation to the letters from the sister and priest, I do not read the Tribunal as doubting their “authenticity” in the sense of authorship, but as considering that their weight should be discounted due to their tone and content, and because they appeared to have been written with the object of enhancing the applicants’ protection visa applications. I consider that the Tribunal’s assessment of the letters was well open to a Tribunal from a reading of the documents in their surrounding circumstances. I do not consider that there was any obligation on the Tribunal to make further inquiries with their authors, whether these arise from considerations of procedural fairness or rational decision-making. I also do not consider that it was a jurisdictional error for the Tribunal not to have explained more fully why it discounted their evidentiary weight. The High Court has often emphasised that in a situation such as the present, where an applicant is well aware that the credibility of the narrative given by him and his supporting documents will be assessed by the administrative decision-maker without a full forensic exploration, there is no obligation to warn or take further steps before refusing to give evidence the weight which an applicant hopes (c.f. Abebe v Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at [187], and Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 per Gaudron and Gummow JJ at [76] and Callinan J at [208], Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S154/2002 [2003] HCA 60, 201 ALR 437 at [56-58], and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gummow & Hayne JJ at 22 [43], Gleeson CJ agreeing at 13 [1]).
The Tribunal’s “considerable concerns about the authenticity” of the bishop’s letter were, in my opinion, similarly open to it without any need for it to give any further warnings or make further inquiries. Moreover, it was clearly open to the Tribunal to decide that no weight should be given to this letter as corroboration, since this was the submission of the applicants’ own solicitor. During its hearing the Tribunal had voiced concern about all the letters at the hearing, and in a post-hearing submission, Mr Karp said:
c)The letter from the Bishop’s house in Jaffna says virtually nothing of personal relevance to the applicant. It merely says that the family, including the children are known to the author. There is no information as to who is the author or where he or she met the children. In my submission this letter far from impinging on the credit of the applicant, is of no evidentiary value at all.
In support of his submissions, counsel for the applicants cited WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74. This was a case where a Tribunal received letters corroborating the applicant’s claims. After noting that it “would have been” easy for the applicant to have manufactured the letters, the Tribunal said “these letters do not overcome the problems I have with the applicant’s evidence and I place no weight on them as proof of the credibility of the applicant’s claims”. Lee and Moore JJ held at [25-27]:
In the instant matter it was not in issue that if events had occurred as claimed by the appellant, the appellant had a well-founded fear of persecution.
The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents "do not overcome the problems I have with the applicant’s evidence".
Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).
and at [52-54]:
The reasons provided by the Tribunal in relation to its rejection of the documents revealed that the Tribunal failed to act judicially in respect of that material. The Tribunal appears to have considered that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated. That was not a course open to a tribunal acting judicially. There was no material before the Tribunal that permitted it to so dispose of the documents, and, thus, of the tendency of the documents to corroborate the appellant’s account.
It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant’s case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts.
It follows that the Tribunal did not accord to the appellant practical fairness and justice in the Tribunal’s conduct of the review. Accordingly, the decision of the Tribunal involved jurisdictional error and was not a decision authorised by the Act. (See: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 per Gummow, Callinan JJ at [24], [32]). The appeal must be allowed and the application for relief by issue of prerogative or constitutional writs must be granted.
As I understand their Honours’ reasoning, they found that the error of the Tribunal was to disregard the letters without making any assessment of their authenticity and thereby to exclude them from the evidentiary “balancing process” involved when determining a refugee claim, in circumstances where such an assessment was an essential part of the Tribunal’s duty to conduct a review procedure according to law (see also [22], [43-4], [48-9]).
I do not consider that the present Tribunal has made this error. In my opinion, on a fair reading of its reasoning it has rationally considered what evidentiary weight it would give to the letters, and has then brought its assessment into its ultimate balancing judgment. If it erred in that assessment, then this was an error of fact and not an error of law giving rise to jurisdictional error. I accept the Tribunal’s statement in paragraph 21 in the extract above that it “has given careful consideration to the information and the applicant’s story as a whole” before reaching the general conclusions stated in that paragraph and subsequent paragraphs.

Ground 4: The Tribunal made jurisdictional error by holding without evidence that the applicant was evasive in giving answers.

This ground challenged the Tribunal’s reasoning which is highlighted in paragraph 1 of the extract from its reasons set out above. It was submitted that a reading of the available transcript of part of the applicant’s evidence demonstrated that the applicant was never “evasive in his answers”, so that it was not open to the Tribunal to have “doubts about the extent to which the applicant was being truthful”. It was common ground that the remainder of his evidence and his wife’s evidence was unavailable on tape or transcript.
I do not accept this submission. I have read both transcripts which are in evidence, and am not satisfied that it would not have been open to the Tribunal to have had doubts about the applicant’s truthfulness. In particular, on the transcript alone, he appears to be clearly evasive in his responses to questioning about his intentions in relation to claiming refugee status and leaving his UAE employment in early 1996 when his wife, and later he, obtained visitors’ visas for Australia (c.f. pages 14-15 and 18 of the transcript attached to the affidavit of Andrea Marianne Christie-David sworn 13 September 2004). This was not an insignificant area of evidence, since (as their passports and the Department’s records showed) they had sought and obtained visitors’ visas before the second extortion incident was claimed to have occurred. Moreover, the Tribunal’s opinion must also have been significantly influenced by its impressions of the responsiveness and demeanour of the applicant when giving his evidence. An answer which on the transcript may appear totally responsive to a simple question, may have emerged with apparent difficulty after significant cogitation.

Ground 1: The Tribunal was unreasonable to a degree of Wednesbury Unreasonableness when it, without appreciating the applicant’s desperate need to get the passport and identity from the perpetrators, said on page CB 179.25 that “there would be every opportunity in such a scenario for the applicant to contact a lawyer upon release seeking legal protection and redress before the applicant was required to return with the money two days later”.

This ground challenged the Tribunal’s statement highlighted in paragraph 7 of the extract from its reasons set out above. It was submitted that the Tribunal’s observation was unreasonable because:
Rarely do people have the courage to take armed forces to court. Least of all a Tamil returning from overseas, desperate to get out of the country, would never resort to legal action knowing the danger, delays, costs and complexities with court process.
Counsel for the applicants sought to rely upon a “principle” stated in VRAW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1133 when Finkelstein J said at [21-23]:
These passages demonstrate further error. A person who is in imminent risk of serious injury, or has just suffered serious injury, will approach the police for help. It is the natural thing to do. It is the unit of government charged with the responsibility of protecting citizens and from which citizens expect to secure protection. But for the wife that protection was not forthcoming. The Tribunal accepted that when the wife made complaints about harassment and property damage inflicted by neighbours and strangers she was "rebuffed by the police". It is true that the wife did not complain to the police about the actions of her superior and the security guards but, as I have already pointed out, by reason of her past experience, she no doubt had good reason to believe that any complaint would be ignored.
The failure of the state to provide the wife with protection from the criminal conduct which she faced is not compensated by the fact that she could have sought "protection" from human rights organisations, the ombudsman or the procurator. In Risak v Minister of Employment and Immigration (1994) 86 FTR 67 Dube J said (at 70) that there is nothing in Canadian jurisprudence "to the effect [that an] applicant has the further burden to seek assistance from human rights organisations or, ultimately, launch an action in court against the government". Our jurisprudence should be the same. Agencies such as human rights organisations, the ombudsman or the procurator do not provide protection against violence. They are certainly avenues of complaint against police inaction. On the other hand, these organizations cannot and do not offer practical protection from persecution. They may be wonderful advocates and proponents of human rights. But a person who fears for his well being is in need of immediate protection and is not overtly interested in making complaints. In Russia the organisation that provides immediate protection from imminent danger is the police.
In substance, when one has regard to the practical rather than the theoretical, a person who for good reason has a subjective fear that he or she might be killed or tortured has an objective basis for that fear when the only avenue of "protection" is the ombudsman, human rights organisations, the procurator or something similar. These institutions do not offer and cannot provide practical protection from persecution.
In my opinion, no principle emerges from these passages which is relevant to the present case. The points made by Finkelstein J were given in the course of explaining why his Honour found that the Tribunal’s reasoning demonstrated a misconception of the legal requirements of the Convention definition when assessing claims of persecution condoned by state agents. In that case, the Tribunal had “accepted the applicants’ version of events and found that each was ‘forthright and open’ in the evidence that they gave” (see [10] of Finkelstein J’s judgment), but refused the visa by finding that their fears were not well-founded due to sufficient protection being available from the Russian government.
The observation by the present Tribunal which is challenged is made in an entirely different context, and in my opinion VRAW has no application to the present case. The Tribunal offers its observation in partial explanation of its doubts about whether the claimed second extortion incident occurred, and in the course of an overall assessment of the prospects of such incidents occurring in the future if the applicants returned to Sri Lanka. The Tribunal, in effect, is commenting that it would be odd for extortionists to release their victim before receiving his ransom. Whether this comment has much cogency may be debatable in a situation where the applicant claimed that the extortionists retained his identity papers, but in my opinion it cannot be said that it demonstrates a reasoning process which is so irrational or unreasonable as to amount to an error of law affecting the Tribunal’s assessment of this part of the applicant’s claims, or his over-all claim to fear persecution if returned to Sri Lanka. I am not persuaded that the Tribunal made any relevant error in this part of its reasoning.

Ground 2: There is no evidence at CB 178.70 that the applicant indicated similar scenarios in relation to both instances where he was taken and detained against his will.

This ground challenged the Tribunal’s statement highlighted in paragraph 6 of the extract from its reasons set out above. It was submitted that no reasonable Tribunal could conclude that the second extortion incident claimed to have happened to the applicant was a “somewhat similar scenario”. It was further submitted that by making this characterisation of the second incident the Tribunal was unreasonably offering a further reason for disbelieving the applicant.
I consider that the applicant is mistaken in reading an adverse finding in this sentence. Moreover, the submission degenerates into a debate on the meaning of “somewhat similar” which demonstrates the weakness of the submission. I can see some obvious similarities between the two incidents as described by the applicant, and can find no error by the Tribunal.

Ground 3: There was unreasonableness to a degree of Wednesbury Unreasonableness when it said at CB 178.15 that “The Tribunal notes that no objection was made to the Tribunal at the time of hearing about concerns regarding translation itself, although there was ample opportunity to do so”.

This ground challenged the Tribunal’s statement highlighted in paragraph 3 of the extract from its reasons set out above. I had difficulty understanding it, since it appears to state no more than the fact that no concerns about the interpreting were raised by the applicants or their solicitor in the course of the hearing. The Tribunal therefore felt free to assess the applicants’ veracity on the basis that there were no particular concerns, while being alive to the inherent difficulties in assessing evidence given in a foreign language. I can find no error of law in this reasoning.
It was submitted that the Tribunal had a duty at the hearing to tell the applicants to raise problems about the translation and did not do this. There is no evidence before me that the Tribunal did not do this either in writing or orally before the commencement of the hearing or in the course of the balance of the hearing for which no transcript is available, and I am not prepared to make this assumption. There is also no evidence that the applicants at that time or now believe that the interpreting at the hearing was, in fact, defective. Moreover, in my opinion, no such duty arose in the circumstances of this case – noting in particular that the applicants were at all times represented by a solicitor who was a migration agent and who attended the hearing.

Ground 5: The Tribunal made jurisdictional error by holding without evidence that both the applicants stated different times when asked when the husband was released after the second detention.

This ground challenged the Tribunal’s statement highlighted in paragraph 8 of the extract from its reasons set out above that the applicant and his wife gave inconsistent evidence as to the time of his return after his second incident of detention. The wife gave evidence before me on affidavit and orally that, in fact, she used a Tamil word for “in the evening” and not “midday”. She was not questioned as to how she could be so confident more than six years later.
I do not need to resolve this conflict, since in my opinion there was clearly evidence before the Tribunal on which it was open to it to make a finding that inconsistent answers had been given. The applicants’ own solicitor accepted that this had happened when he wrote in his submission after the hearing:
As I recall, Mr XXX stated that this happened in the late afternoon, and Mrs XXX stated that it happened “in the mid day”, or words to that effect.

General Conclusions

For the above reasons, the applicants have failed to make out any of their grounds of review which argued that the Tribunal made errors of law at particular stages of its reasoning and that these, individually or cumulatively, resulted in the Tribunal constructively failing to exercise its jurisdiction.
This means that the Tribunal’s decision is a “privative clause decision” for which judicial review is barred by s.474(1) of the Migration Act. The application is also long out of time under s.477(1A).
I therefore uphold the respondent’s objection to competency and dismiss the application.
This conclusion means that I do not need to explore at length the applicants’ delay in bringing this application. However, evidence was led by both parties on this issue, and I heard full argument on it. I reached the firm conclusion that, even if the Tribunal’s decision could be shown to be flawed by jurisdictional error, the applicants were “guilty of unwarrantable delay” at the time of the commencement of the present proceedings so as to “make it just” that relief by way of mandamus should be withheld (c.f. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400, see also R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565 at 570, and that the delay also made it “the proper approach” to refuse relief by way of prohibition and certiorari (c.f. Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194, adopted by Gaudron and Gummow JJ in Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at [51-3] with whom Gleeson CJ and Hayne J agreed, and by Kirby J at [148-9]. See also Merkel J in Thayananthan v MIMIA (2003) 132 FCR 222 at [28-31]).
Briefly, the circumstances on which I formed this conclusion were:
a)The Tribunal’s decision was handed down on 16 March 1998.
b)The applicants then sought advice from Mr Karp, the solicitor who had assisted and represented them before the Tribunal.
c)In oral evidence the applicant said that Mr Karp told him he could go to the High Court. He then “asked everyone” and they told him that he would have to pay more money than asking the Minister to intervene favourably under his discretion under s.417 of the Migration Act. He therefore asked Mr Karp to make an application under that provision.
d)In the application to the Minister received on 21 April 1998, Mr Karp said:
There is no complaint about the Tribunal’s conduct, and no legal error in its reasons. However, it is submitted that the Tribunal’s conclusion may well be incorrect, and this may leave this applicant open to persecution upon return.
This was explained further in the letter.
e)A letter dated 28 August 1998 informed the applicants that the Minister had decided not to consider exercising his power.
f)On 23 September 1998, the applicant lodged a further application for “favourable and sympathetic consideration on compassionate and humanitarian grounds”. The Minister personally signed a letter dated 21 December 1998 informing the applicant that he had decided not to exercise his power.
g)In his affidavit, the applicant said:
When Minister refused at the end of 1998 I was faced with the problem of what to do. I was scared to return to Srilanka. However, my wife’s mother was seriously sick in Australia and there was the possibility of applying for a carer visa and we took that option, knowing that it is very hard to succeed as a refugee applicant.
h)The applicant wife’s application for a sub-class 806 carer’s visa was lodged on 14 December 1998, with the husband as a dependent applicant. It was refused by a delegate on 19 February 1999, and this decision was affirmed by the Migration Review Tribunal on 8 February 2001.
i)The applicant then made three consecutive applications under s.351 requesting the Minister to exercise his discretionary power to make a favourable decision in relation to the carer’s visa application. All were unsuccessful, with the last being rejected on 26 March 2003.
j)On 27 February 2003, the applicants first sought to challenge the legality of the Refugee Review Tribunal decision of March 1998. They filed an affidavit in the High Court of Australia annexing a draft order nisi seeking constitutional writ relief. The affidavit did not disclose any facts supporting this relief. It was remitted by Heydon J to the Federal Court on 25 August 2003.
k)In the Federal Court an “Amended Application” was filed by the solicitors who now represent the applicants. It pleaded one of the grounds which I have dealt with above. In a decision on 30 April 2004, S69 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 904, Emmett J refused the application for an order nisi, noting that this “would not preclude the applicants from commencing proceedings seeking such relief as they are entitled”, but that “the delays that have occurred may mitigate (sic: militate) against the grant of relief”.
l)The present application was then lodged in this court on 7 May 2004.
Counsel for the applicants argued that the long delay before the applicants commenced proceedings in 2003 should not cause the court to refuse relief because at all times the applicants had pursued lawful avenues for obtaining Australian residence, and their concerns about the uncertainty and costs of going to court justified their treating this as a last option after all other avenues had closed. The applicants still feared return to Sri Lanka and there was no prejudice in allowing their claims to refugee protection to be re-heard in the Tribunal.
I do not accept that there is no prejudice countervailing against the applicants’ desire to have a second chance to establish refugee status in the Tribunal. A most important consideration in relation to all judicial review proceedings was identified by McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-6 (applied in Applicant M70 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 132 and cited in Das v Minister for Immigration and Multicultural Affairs [2004] FCA 489):
Where an applicant seeks the issue of constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases.
This consideration may, in proper cases, outweigh the Court’s concern to ensure that “[t]hose exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers” (Re Minister for Immigration and Multicultural Affairs & Anor, Ex parte Miah (2001) 206 CLR 57, per Gaudron J at [106], see also McHugh J [152] and Kirby J at [215-222], and Kirby J in Aala (supra) at [140]).
In the present case the applicants were fully advised by solicitors in relation to prerogative relief shortly after receiving the Tribunal’s decision, and made a deliberate decision not to challenge its legal correctness. They maintained this decision for five years. Instead, they chose to pursue hopes of residence in Australia by applications for a completely different class of visa. I consider that it is contrary to the interests of the proper administration of justice and of good public administration to allow an applicant to hold in suspense over many years an allegation that an Immigration Tribunal has invalidly decided an entitlement under a particular visa application, and then to seek to justify long delay in seeking judicial intervention by pointing to the unsuccessful pursuit of other visa applications. I consider that this consideration is relevant in relation to refugee applicants as well as to other visa applicants.
Weighing up all the circumstances of the applicants in the present case, I consider that their delay was unwarranted and should cause the court to refuse to give the relief they now seek.
If the parties cannot agree upon a costs order, the respondent may apply to my associate for the matter to be listed for further hearing on that issue.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 10 November 2004