Kirupatharan, Jegan v The Minister for Immigration and Multicultural Affairs
[1997] FCA 1455
•3 December 1997
IN THE FEDERAL COURT OF AUSTRALIA
HOBART DISTRICT REGISTRY
VG 469 of 1997
BETWEEN:
JEGAN KIRUPATHARAN
Applicant
AND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
HEEREY J
DATE OF ORDER:
3 DECEMBER 1997
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The application is allowed.
The matter is to be remitted for reconsideration by a tribunal differently constituted.
The applicant pay the respondentÕs costs, including reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
HOBART DISTRICT REGISTRY
VG 469 of 1997
BETWEEN:
JEGAN KIRUPATHARAN
Applicant
AND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
HEEREY J
DATE:
3 december 1997
PLACE:
melbourne
REASONS FOR JUDGMENT
This is an application for a review of a decision of the Refugee Review Tribunal. The applicant is a 23 year old Sri Lankan citizen who came to this country illegally on 30 March 1997. A central issue in the case before the Tribunal concerned was an order alleged to have been made by the Magistrates Court at Mount Lavinia in Sri Lanka on 17 November 1996. To put this matter in context, I quote the following passage from the Tribunal's reasons:
ÒIn relation to the applicantÕs claim that he was arrested and mistreated by the authorities a few days after his arrival in Colombo, and that he was later taken to court, the Tribunal makes the following observations.
In a statement attached to his initial application the applicant stated that he was removed from a bus on a Saturday morning and that he was seriously mistreated that evening and the following morning while being questioned about links to the LTTE, [Liberation Tigers of Tamil Eelam] and any intention to plant bombs. He claims that he was detained overnight before being taken before a magistrate on the Sunday. He claims that the magistrate then remanded him in custody until Wednesday when he was taken before a court. He claims that he was detained on suspicion of involvement in terrorist activities, notwithstanding the fact that he had been given a security clearance a few days earlier in Vavuniya where he was, on the aforementioned information, also cleared of suspicion of being a member of the LTTE. He had not engaged in any illegality since his arrival in Colombo before being taken from the bus on which he was a passenger. He claims that by the Wednesday he could barely walk due to the beatings he had incurred. He voluntarily returned, however, to Vavuniya two days later, claiming that he was too fearful to remain in Colombo. He undertook the journey despite his injuries and notwithstanding the fact that he had been released by the court unconditionally.
In support of his claim the applicant has submitted a document, purportedly issued by the court in Colombo. He said at the hearing that he arranged for the document to be sent to his family friend in Colombo, although the purpose of having the document was so that he could avoid arrest on any subsequent occasion if approached by the authorities. He said that the first time he received the document was about three weeks before the hearing. He provided no satisfactory explanation as to why such a document would be held on his behalf, rather than by him so that he could use it at will for the purpose he outlined. In a submission made after the hearing the applicant stated that he decided it was better to leave the document in Colombo as he had gone into hiding in Vavuniya and if it had been posted to him there, he may have moved location before its arrival. In his initial statement the applicant stated that he stayed at a friendÕs parentsÕ house in Vavuniya, not that he changed address while in Vavuniya.
The document in question is a roughly typed document that contains no letterhead or any other official appearance. Its wording seems highly contrived. Its purpose is stated as Òproducing a suspect in the Honourable Courts who was taken into custody on suspicion of Terroristic activitiesÓ (sic). Although the document refers to events that allegedly occurred between 17 and 20 November 1996, the only two stamps on it bear the date 10 January 1997. Despite the applicantÕs claim that he sought the document for his protection he did not obtain it until some two months after the alleged events, and then left it in a place where he did not have instant access to it if he needed to make use of it.
In assessing all the evidence before it the Tribunal finds that the applicantÕs claim that he was detained in Colombo is not credible. The Tribunal also finds that the document submitted by the applicant is not authentic and has been prepared in order to bolster a false claim to refugee status. The Tribunal also notes the applicantÕs evidence that he was cleared of suspicion by the authorities and released unconditionally.Ó
The translation of the document in question was as follows:
In the magistrate courts Mount Lavinia
Officer in charge
Intelligence Unit
Bambalapitiya.
Plaintiff.
--------VS-------
Case No. A.R.2291/96
Kirupatharan Jegan
Respondent
Producing a suspect in the Honourable Courts who was taken into custody on suspicion of Terroristic activities.
No. A.R.2291/96.
Sri Lanka Police.
On 17th-1-1996.
Serial No. of the report; 252/764
Criminal Procedure Act No.15 of 1979. Report submitted to the Magistrate under section 31.
I, P.S., Dharmapala, 3588, Officer in charge of intelligence unit of Bambalapitiya Police do hereby report to the Courts that I have taken a suspect in to custody on suspicion of Tamil Terroristic Activities.
Kirupatharan Jegan of 571 A, Kanchila Valavu, Alaveddy North, Jaffna was taken in to custody by a team of Army Officers including Corporal Gamage Srisena, 00189, Brud house Camp Baudddhaloka Mawatte Colombo-07 with the assistance of P.C.Wickremanayake 30552 of 16--11--96 hours 11.15. When they were checking a bus which was playing from the direction of Wellwatta to Colombo. While on duty at the Galle Road Junction of St.Peters Place barrier and produced in the Bambalapitiya Police Station
The particulars of this suspect has been sent to the criminal Investigating Department, Crime Detective Bureau and National Intelligence Bureau over the telephone to ascertain whether he is involved in any Tamil terroristic activities and the investigation is being held by me. Investigation held so far is not over. I hereby appeal to the Honourable Courts to remand the suspect Kirupatharan Jegan of 571 A, Kanchila Valavu till 20--11--96 until the investigation is over and to submit a report to the Courts and to order the superintendent of Prisons to remand him and produce him in the Courts on that day.
Sgd. Illegibly
Officer in Charge
Intelligence Unit Bambalapitiya.
96--11--17.
Suspect.
------
Kirupatharan Jegan Present
Call-- 20--11-96.
Remand until
Sgd./Magistrate
96--11-18
Motion submitted by Attornary at law Wijendra,
Acc.Kirupatharan Jegan. Not present,
Call on 96--11-19
to consider the request
Sgd/Magistrate
96--11--19
Kirupantharan Jegan -- Not present. No request
Sgd/Magistrate
96--11-20
Acc. Kirupatharan Jegan -- Present. Further report filled.
Suspect Released.
Sgd/Magistrate.
______________________________________________________________
I do hereby certify that the foregoing is a complete true copy of the case bearing No.A.R./2291/96 of Magistrate Courts,Mount Lavinia.
Sgd. Illegibly.
Registrar/fiscal
Magistrate Courts
Mt.Lavinia.
After the hearing but before the decision the applicant's agents Refugee Advice and Casework Service wrote a letter dated 9 July 1997 to the Tribunal which, amongst other things, said:
Ò(ii) the court document
In his primary application, the applicant present a document from the MagistrateÕs Court in Mount Lavinia. During the hearing, the Member doubted the validity of this document. We note that there is no record of the document ever being examined by a qualified document examiner. The MemberÕs concerns centred on the translatorÕs wording. Without a determination by a document expert or a second opinion of a translator inside Australia (for which we request extra time if the Member deems necessary), we submit that the document should be accepted as authentic. We remind the Tribunal that the applicant encourage the Member to confirm the existence of such records with the court. While the Tribunal would be unlikely to contact the judiciary in a country of claimed persecution, we submit that the Tribunal should give weight to the applicantÕs reaction as it demonstrates his belief in the authenticity of the court document.
The member also expressed concerns as to why the applicant did not have the document sent to Vavuniya once it was issued by the court. In clarifying this issue, we have taken further instructions from the applicant. The applicant instructs that:
1. The applicant asked the court to provide a record of the case before the Magistrate so that the applicant could show it to police at a later date if he was ever arrested again. He requested the court send it to the home of Mr Muthiah.
2. Being in hiding in Vavuniya, the applicant did not know how long it would be before he returned to Colombo and left the country. He knew that he would not stay in Vavuniya for an extended period of time. In the meantime, the applicant was aware that arrangements were being made for his travel to Colombo. The applicant feared that if the court record was to be posted to Vavuniya, he would miss it in the mail should he move quickly. To be on the safe side, the applicant requested that Ms Muthiah retain the document.
We submit that it was quite understandable that the applicant asked for the document to remain in Colombo.Ó
It is true enough, as counsel for the respondent pointed out, that there is no unqualified obligation on the Tribunal to obtain evidence for the applicant.
However, I note in Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 at 291, a passage in the joint judgment of Black CJ, von Doussa, Sundberg and Mansfield JJ, which at least accepts that a request by an applicant to ask the Tribunal to exercise its powers to make inquiries, while not decisive, is at least relevant. In any case, the agentÕs letter was a request to be given time for it to arrange the necessary examination - not necessarily something which the Tribunal had to arrange. There is no mention in the TribunalÕs reasons of the applicant's agentÕs request and no explanation why it could not be acceded to.
I must say on an inspection of the translation itself, I find the description of its wording as Òhighly contrivedÓ hard to understand. On its face, the procedure recorded in the document is one in which police have arrested a person and sought an order from a court for his detention. Some further proceedings have taken place and finally the person is released.
It is perfectly understandable that the law of Sri Lanka might provide for such a procedure. The English translation coherently records a series of judicial decisions which occurred in accordance with such a procedure and which are in no way inherently improbable. The original document does not appear to me to be Òroughly typedÓ. It is true that it Òcontains no letterheadÓ, but the same may be said of orders issued by the Federal Court of Australia.
The date on which the orders were made was only a few months before the applicant left Sri Lanka. Thus it was at least a matter to be taken into account that while released on this particular occasion, the applicant might still be under notice of the authorities.
More importantly, however, the Tribunal went on to find that the document was not authentic. To be a party to what would have been the elaborate construction of a false document would be terminally damaging to any applicant's credibility and such a finding would, of necessity, infect the whole attitude which the Tribunal took to the remainder of the case.
I think substantial justice requires that this matter be reconsidered: Migration Act 1958 (Cth) s 420 (2)(b), Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621. The application is allowed. The matter will be remitted for re-consideration by a tribunal differently constituted.
There will be an order that the respondent pay the applicant's costs including reserved costs.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey
Associate:
Dated: 3 December 1997
Counsel for the Applicant: P N Rose Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent W Mosely Solicitor for the Respondent: Wisewoulds Date of Hearing: 3 December 1997 Date of Judgment: 3 December 1997
0
0
0