Applicants S69 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 318

FEDERAL COURT OF AUSTRALIA

Applicants S69 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 318

MIGRATION – protection visa – adverse findings as to credit – whether the RRT was obliged to make inquiries as to the authenticity of letters submitted by appellant – unwarranted delay in initiating review proceedings

Convention relating to the Status of Refugees

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 351, 417

WAIJ v Minister for Immigration and Multicultural and Ethnic Affairs [2004] FCAFC 74; 80 ALD 568 distinguished
WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188; 76 ALD 597 distinguished
Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 222 cited

APPLICANTS S69 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1759 of 2004

SACKVILLE J
SYDNEY
31 MARCH 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1759 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANTS S69 of 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	31 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant (as defined in [2] of the judgment) pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1759 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANTS S69 of 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	31 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE APPEAL

1. This is an appeal from a decision of the Federal Magistrates Court handed down on 10 November 2004: [2004] FMCA 754. The learned Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘RRT’) made as long ago as 12 March 1998. The RRT had affirmed a decision of a delegate of the respondent (‘the Minister’) not to grant the appellants protection visas.

2. The appellants comprise four members of the one family.  Since only the husband made specific claims under the Convention relating to the Status of Refugees, I will refer to him as ‘the appellant’.  His application for a protection visa was based on the ground that he feared persecution in his country of nationality, Sri Lanka, by reasons of his activities on behalf of the Liberation Tigers of Tamil Eelam (‘LTTE’).

   THE CLAIMS

3. The appellant claimed that he had become involved with the LTTE in 1976, but left the organisation in July 1980.  He then went to the United Arab Emirates (‘UAE’) to work, remitting money to his family.

4. The appellant said that he had visited Sri Lanka in December 1981 (for two months) and in December 1983 (for ten weeks).  He had returned to the UAE in March 1984 and his wife had joined him shortly thereafter.  The appellant’s children had been born in the UAE.

5. The appellant’s family did not return to Sri Lanka until February 1996.  The appellant himself returned on 2 March 1996 and was granted a visitor’s visa for Australia two days later (his application for such a visa having previously been rejected in the UAE).

6. The appellant claimed that in early 1984 (during his visit to Sri Lanka), he had been detained as a suspected member of the LTTE and assaulted regularly over a period of three weeks.  He was released when his friends paid money to his captors.

7. The appellant also claimed that on 6 March 1996 he had been seized by uniformed men and questioned about the LTTE.  He was detained for two days and released when his wife paid money.  This event prompted the appellant and his family to leave Sri Lanka on 13 March 1996 and to travel to the UAE.

8. When he arrived in the UAE, so the appellant claimed, his employment contract was cancelled and he returned to Sri Lanka on 30 March 1996.  After remaining in a hotel for about two weeks, the family travelled to Australia, arriving on 17 April 1996.

9. On 11 June 1996, the appellant lodged an application for a protection visa.  The delegate refused the application on 6 May 1997.  As I have noted, the RRT affirmed the delegate’s decision on 12 March 1998.

   THE RRT’S DECISION

10. The RRT informed the appellant at the hearing that it had major concerns about the credibility of his story.  The appellant was offered time after the hearing to comment on these concerns.  A written submission was subsequently lodged on his behalf by his legal advisor.

11. The RRT found that the appellant had not been ‘forthcoming’ in his evidence despite repeated attempts to have him focus on the issues the RRT sought to address.  The RRT was prepared to accept that the appellant may have been detained in 1984.  However, 

    ‘this event occurred some 15 years ago, under a different government, in the aftermath of communal riots, and the [RRT] does not consider that the [appellant] would be at risk now from the authorities as a result of this incident.’

12. The RRT was not convinced that the second incident recounted by the appellant had in fact occurred.  It gave detailed reasons for this conclusion, including the fact that the appellant and his wife had given inconsistent accounts of the incident.  The RRT also considered that the appellant’s movements in 1996 suggested that he had contrived the claim for the purpose of claiming refugee status in Australia.  Moreover, although the appellant claimed that he could not send his family back to Sri Lanka from Australia for fear of what would happen to them, he had had no difficulty in sending them back from the UAE for a period of over two weeks before he himself returned to Sri Lanka.

13. The RRT noted that the appellant had produced three letters said to be written by his sister-in-law, a priest in Colombo and the Bishop of Jaffna.  The RRT dealt with the letters as follows:

    ‘The [RRT] has considered the [appellant’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 [RRT] accepts that this letter is written by the sister, however, it considers the content of the letter is contrived and self-serving and the [RRT] is not convinced that it is simply a letter berating another for being stupid.

    Similarly, the [RRT] 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 [RRT] notes that the writer indicates that the family, including the children, are known to the writer.  Given that the [appellant] indicated that the children had never been to Sri Lanka until 1996, and the [appellant] says his family was in Colombo during the short time they were there, the [RRT] has considerable concerns about the authenticity of this document.  The [RRT] notes that the [appellant’s] advisor has indicated in his post-hearing response on this matter that he considers that the letter is simply of no evidentiary value.’

14. In the result the RRT considered that there was only a remote chance that the appellant would be persecuted by reason of his ethnicity or imputed political opinion were he to return to Sri Lanka.

    THE LITIGATION

15. The appellant first sought judicial review of the RRT’s decision by filing an application for an order nisi in the High Court on 27 February 2003, almost five years after the RRT’s decision. That application was remitted to the Federal Court on 25 August 2003 and was dismissed by Emmett J on 30 April 2004: [2004] FCA 906. The present proceedings were commenced in the Magistrates Court on 7 May 2004, more than six years after notification of the RRT’s decision.

    THE MAGISTRATE’S DECISION

16. The appellant was represented at the hearing in the Magistrates Court.  The principal argument advanced on his behalf was that the RRT’s decision was unreasonable in the Wednesbury sense because the RRT had not checked the authenticity of the letters from the Bishop and the priest on which the appellant had relied at the hearing.  The Magistrate rejected this contention on the ground that the RRT had not found that the letters were unauthentic, but had given them little weight because of their tone and content and because they had been written after the visa applications with the apparent object of enhancing the appellant’s claims.  There was no obligation on the RRT to make further inquiries.  Moreover, the appellants then solicitor had said at the RRT hearing that the Bishop’s letter was of no evidentiary value.

17. The Magistrate distinguished the decision of the Full Court in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; 80 ALD 568, since in that case the RRT had disregarded certain corroborative letters without considering either their authenticity or their evidentiary value. The RRT in the present case had not made that error.

18. The Magistrate rejected all other grounds relied on by the appellant.  They essentially went to factual matters and did not demonstrate an irrational or unreasonable reasoning process.  Thus no jurisdictional error had been shown and the application had to be dismissed.

19. That conclusion meant that the Magistrate did not have to consider the significance of the appellant’s delay in bringing the proceedings.  However, his Honour expressed the ‘firm conclusion’ that even if there had been a jurisdictional error, the appellant had been ‘guilty of unwarrantable delay’ making it ‘just’ that relief by way of mandamus should be withheld.  The circumstances on which the Magistrate relied were summarised by him as follows:

    ‘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 [1958 (Cth)].  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 [Sri Lanka].  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.’

20. The Magistrate expressed the following conclusion (at [38]-[39]):

    ‘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.’

    REASONING

21. The further amended notice of appeal essentially repeated grounds argued before the Magistrate.  The appellant’s solicitor filed written submissions elaborating on the grounds.  Those submissions did not, however, address the Magistrate’s conclusion on the effect of the unwarranted delay in bringing the proceedings.

    Ground 1

22. The appellant submitted that the RRT committed jurisdictional error by finding that the appellant was ‘evasive’ in giving answers without having evidence for that finding.  The particulars to Ground 1 assert that the RRT did not understand the cultural context of the answers.  But as Mr Bromwich for the Minister pointed out, this submission ignored the fact that the appellant’s solicitor squarely raised the issue of cultural preconceptions and, in response to the RRT’s invitation, provided written submissions on the issue after the hearing.  The RRT took account of these matters in making its findings. 

23. The appellant’s written submissions contended that the transcript of the RRT hearing (which was in evidence before the Magistrate) provided no support for the conclusion that the appellant was evasive in his answers. This, however, is quintessentially a factual matter for the RRT to assess. Even if a court would not necessarily have made the same finding as the RRT, this does not establish a jurisdictional error on the part of the RRT warranting the issue of a constitutional writ pursuant to s 39B(1) of the Judiciary Act 1903 (Cth).

24. In any event, like the Magistrate, I have read the transcript.  There are passages in which the appellant appears not to have answered questions directly.  Whether this was because of evasiveness (as the RRT thought) or for some other reason was for the RRT to determine.  A court exercising powers of judicial review is not in a position, even if it otherwise had the power, to conclude that the RRT’s interpretation of the evidence was wrong.

25. Mr Silva, who appeared on behalf of the appellant, referred to observations of the Full Court in WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188; 76 ALD 597, at [18], as follows:

    ‘If demeanour is relied upon by a tribunal as the reason for discarding an applicant’s claims and the tribunal fails to identify how the demeanour of the applicant caused the tribunal to conclude that part, or all, of the evidence of the applicant should be discarded, that course may, in some cases, lead to an argument that the tribunal carried out its decision-making function arbitrarily or capriciously: see Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370 at 380; 54 ALD 654 at 663 per Einfeld J.’

26. In my opinion, this passage does not assist the appellant.  The RRT explained how and why it took the appellant’s demeanour into account.  It did not merely assert that the appellant had been evasive.  The RRT stated that it had difficulty getting the appellant to recount aspects of his story in any detail or to answer directly the specific questions put to him.  There was nothing arbitrary or capricious about its approach.

27. The first ground fails.

    Grounds 2 and 3

28. These grounds repeat the contentions that the RRT should have checked the authenticity of the letters from the priest and the Bishop and that the finding that they were contrived was made without evidence.  The appellant argued that the RRT should have made telephone calls in order to check the authenticity of the letters.  He also contended that it was ‘irrational or illogical’ to suggest that either the Bishop’s letter or the priest’s letter was ‘contrived in tone’.  (No submission was made in relation to the sister’s letter.)

29. Several factors must be borne in mind in considering these submissions.  First, the appellant’s own legal advisor conceded in written submissions filed after the RRT hearing that the Bishop’s letter was ‘of no evidentiary value at all’.  Secondly, this is not a case where the letters supported an otherwise plausible case.  The RRT independently found that the appellant was not a credible witness and that his account of events could not be accepted in important respects.  Thirdly, the letter from the priest merely repeated the substance of the appellant’s claims and did not suggest that the priest had any independent knowledge of the facts he recounted.  Fourthly, the Magistrate correctly held that although the RRT expressed doubts as to the authenticity of the letter, it ultimately discounted them because it considered that they were contrived and self-serving in tone. 

30. Mr Silva complained of the RRT’s description of the two letters as ‘contrived in tone’.  I understand the RRT simply to be saying that the letters were plainly written to support the appellant’s application and added nothing of substance to his own account.  The RRT was also making the point (as the member did at the hearing) that the priest’s letter claimed that the appellant and his family had been well known to the priest for ‘many years’ and that the appellant had been actively involved in parish work, yet the appellant and his family had effectively lived in the UAE for 12 years and his children had been born there.

31. WAIJ does not assist the appellant, for the reason given by the Magistrate.  The majority in that case (Lee and Moore JJ) pointed out (at [42]-[45]) that the RRT had made no finding that the letter apparently written by the appellant’s sister was not authentic, yet had not addressed the possibility that the letter was genuine and recorded facts and events known to the sister.  In the present case, the RRT considered that even if the letters were genuine (in the sense that they were not fabricated) they did not advance the appellant’s case.  Moreover, the present case is one in which the ‘credibility of the appellant had been destroyed by stark findings of untruthfulness’ (WAIJ, at [28]).  Grounds 2 and 3 fail.

    Discretionary Considerations

1. Even if the appellant had been able to establish that the RRT had committed a jurisdictional error (and therefore that the Magistrate erred in concluding that it had not), he has not shown any error in the RRT’s conclusion that the appellant’s delay in instituting proceedings was such as to warrant refusing any relief to which he might otherwise have been entitled.  The Magistrate referred to the relevant authorities and applied the correct principles: see Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 222, at [28]-[31] and authorities cited there. I see no basis for interfering with his Honour’s reasoning and conclusion on this issue.

   CONCLUSION

2. The appeal must be dismissed.  The appellant must pay the Minister’s costs of the appeal.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             31 March 2005

Solicitor for the Appellant:	Silva Solicitors
Counsel for the Respondent:	RJ Bromwich
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	30 March 2005
Date of Judgment:	31 March 2005