M33 of 2004 v Minister for Immigration
[2007] FMCA 684
•19 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M33 OF 2004 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 684 |
| MIGRATION – Refugee Review Tribunal – illogicality – unfairness- whether conclusions supported by any probative material – application dismissed. |
| Migration Act 1958, ss.420, 424A, 430 |
| Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 R v Connelland Another; Ex parte the Hetton Bellbird Collieries Limited and Others (1994) 69 CLR 407 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 VBAS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 435 VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 |
| Applicant: | M33 OF 2004 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1528 of 2006 |
| Judgment of: | Riley FM |
| Hearing date: | 7 May 2007 |
| Date of last submission: | 7 May 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 19 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | T.A. Fernandez |
| Solicitors for the Applicant: | T.A. Fernandez |
| Counsel for the First Respondent: | Richard Knowles |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 5 December 2006 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1528 of 2006
| M33 OF 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application filed on 5 December 2006 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 27 October 2006. That decision affirmed a decision of the first respondent’s delegate refusing to grant a protection visa to the applicant.
The applicant is a 42 year old male citizen of Sri Lanka. He arrived in Australia on 5 May 2001 and applied for a protection visa on 16 May 2001. On 8 June 2001, a delegate of the first respondent refused the protection visa application. On 13 July 2001, the applicant applied to the Tribunal for review of the decision of the delegate. On 4 April 2003, the Tribunal handed down its decision dated 11 March 2003 affirming the decision of the delegate refusing to grant a protection visa to the applicant.
On 25 February 2004, an application for judicial review of the Tribunal’s decision was filed in the High Court. On 23 July 2004, the High Court remitted the matter to the Federal Court. On 16 September 2004, the Federal Court transferred the matter to the Federal Magistrates Court. On 25 May 2006, the Federal Magistrates Court set aside the decision dated 11 March 2003 and remitted the matter to the Tribunal for determination according to law.
On 29 August 2006, the Tribunal conducted a further hearing of the matter. On 8 November 2006, the Tribunal handed down its decision signed on 27 October 2006 affirming the decision of the Minister’s delegate not to grant the applicant a protection visa.
On 5 December 2006, an application for judicial review of the Tribunal’s decision and a supporting affidavit were filed in this court. On 19 March 2007, the applicant filed an amended application. On
21 March 2007, the applicant filed contentions of fact and law and on
4 April 2007, the first respondent filed contentions of fact and law.
Initial claims
In his protection visa application, the applicant claimed to have left Sri Lanka for the following reasons:
I left due to fear of Police who have implicated me with a terrorist organisation – ‘LTTE’.
I also feared that I may be wrongfully imprisoned by the Sri Lankan authorities.
…
I fear for the government of Sri Lanka and its supporters.
In a statutory declaration supporting his protection visa application, the applicant said:
5.I started my own Textile business under the name of … at … [Place A].
6.I continued my business until the shop was destroyed by the Sri Lankan Government party supporters on the 12th October 2000.
7.I am a staunch supporter of the United National Party and worked for the party in the General Election held in October 2000.
8.I organised an election rally for the local UNP candidate [X] in front of my business premises of the 2nd October 2000.
9.On 3rd October 2000, The (sic) ruling party candidate [Y] came to my premises with his supporters and abused me with foul language. In the process his supporters broke the front window of my shop.
10.I went to the … Police Station to lodge a complaint about the incident but the police refused to accept my statement.
11.On 4th October 2000,Police came to my business premises and took my shop assistance (sic) [Z] a Tamil person with them on the pretext that he is an LTTE member.
12.I went to the police station that afternoon to look after the welfare of [Z] but was detained at the police station.
13.The Police alleged that I am employing an LTTE member and contributing to the LTTE financially.
14.I deny those charges but the Police persisted and put me in the cell with my shop assistance (sic).
15.They took me to the Court the next morning and the Magistrate remanded my shop assistance (sic) but released me on bail.
16.Mr …, a lawyer at the hearing represented me.
17.My bail was extended to 21st June 2001.
18.I was frighten (sic) by this experience and sought assistance from [X] about the security of my family and me.
19.[X] told me to close the shop and send my family to [Place A] and remain in [Place B] until the election is over and promised to sort out everything after the General Election.
20.On the 12th October 2000 my shop was looted and set on fire, A group of PA thugs came to my house looking for me and stole all the valuables from my house.
21.I was living in a neighbour’s house at the time and as such avoided the PA thugs.
22.I reported this incident to [X] and he promised to take the matter with the Police.
23.[X] later told me that he could no longer assist him since he has now found out that I was helping the LTTE by employing their member.
24.My lawyer told me that I was charge with helping the LTTE on the confession made by my shop assistance (sic) [Z] and the charges could lead to imprisonment.
25. I was frightened and decided to flee the country.
Evidence before the second Tribunal
At the Tribunal hearing on 29 August 2006, the applicant gave evidence about the 2000 elections, summarised in the Tribunal’s reasons for decision as follows:
The Tribunal asked the applicant when the general election was held in 2000. The applicant stated that it was in October but could not remember the date. … The Tribunal asked the applicant what activities he was involved in during the 2000 general elections. He stated he used his shop as a small office, pasted candidates posters, had flags hanging and a big cut out of the candidate near his shop and allowed the UNP to have an election rally/meeting near his shop. The Tribunal asked the applicant when the rally was held. The applicant stated he could not remember the exact date but it was just before the election. … The Tribunal asked the applicant if anything happened after the rally. He stated not immediately after but after a few days opposition supporters came and broke the glass in one of his display cabinets and were screaming and swearing. The applicant confirmed it was a few days after the rally, about 2 days after, but before the election. The Tribunal asked the applicant how he knew these people were opposition members. He stated they came in vehicles which had flags and posters on them. The Tribunal asked the applicant if he could identify any of the people. He stated he thought they were thugs who came from outside the area so he could not identify them. He also did not stay there but ran away because he was scared they would hit him. …
…
The Tribunal asked the applicant if anything happened after this incident. The applicant stated there were other incidents. They set fire to his shop after the election. He could not remember exactly when this happened but believed it was one or two days after the election. The applicant stated that he did not see who was responsible. It was done at night time. The Tribunal asked the applicant if anything else was done to his shop. He stated they had broken the glass and thrown stones on the roof. The applicant stated he was at home at the time. The Tribunal asked the applicant how he knew the PA were responsible for this incident. He stated they were the ones who had broken the windows in his shop and had been saying they would do something to him because the UNP had the rally outside his shop. The Tribunal asked the applicant who the PA had told this to. He stated they had told his friends. The Tribunal asked the applicant if any other property of his was affected during this time apart from his shop. He stated no. It queried whether anything happened to his home. He stated no. The Tribunal asked the applicant what he did after his shop was burnt. The applicant stated he went to the police station and then the police came to his shop and took his employee, who was a Tamil, with them. He stated the police asked him why he kept a Tamil in his shop when he could be a terrorist. The applicant stated after that he went to the police station to see his employee. He could not remember how long after but it could have been 4 or 5 hours. He saw his employee at the police station and was told by the police they were keeping him because he was a Tamil and he could be a terrorist. The police said as he kept his employee he could also be a terrorist so they detained him as well. The Tribunal asked the applicant how long he was detained. He stated he was kept overnight. His family sent a lawyer and apparently the lawyer talked to the police and they freed him. The applicant stated he was not sure if there were any conditions attached to his release. He was told he could go so he left. The Tribunal asked the applicant if he was ever taken to court. He stated he was not taken to court. The Tribunal asked the applicant if he was charged with any offence. He stated no. He did not know if there were any charges but nothing was given to him.
The applicant gave evidence that after he was released by the police, he spoke with X who told him to leave the area with his family. The applicant said that he went straight home and took his family to Place B. He said that he lived in Place B with his family until he left for Australia.
Section 424A notice
By letter dated 11 October 2006, the Tribunal invited the applicant to comment on information which might be the reason, or part of the reason, for deciding that the applicant was not entitled to a protection visa. The Tribunal said the comments were to be received by the Tribunal by 25 October 2006. The Tribunal set out the relevant information, and the reason it was relevant, as follows:
·In the hearing you claimed about 2 days after the rally held outside your business premises, opposition supporters came to your business premises and broke the glass in one of your display cabinets and were screaming and swearing at you. You stated these people came in a vehicle which had opposition flags and posters on them but you could not identify the people as you thought they were thugs who had come from outside the area. However in your statutory declaration attached to your protection visa application you claimed this particular incident took place the day after the rally, on 3 October 2000, and the ruling party candidate, [Y] had come to your shop with his supporters and abused you with foul language and broke your front window. You quite clearly claimed in your statutory declaration that [Y] was present at the time of the incident at your shop following the rally, yet in the hearing you claimed you could not identify any of the people responsible.
This information is relevant because the inconsistencies in your evidence as to who came to your shop following the rally and verbally abused you and damaged your property raises serious doubts that this incident occurred as you claimed.
·In your statutory declaration attached to your protection visa application you claimed the PA thugs responsible for setting your business on fire also came to your home looking for you and stole all the valuables from your home but you managed to avoid them by staying at your neighbour’s home. However, in the hearing, you claimed you were at home at the time your business was set on fire and nothing happened to your home.
This information is relevant because the inconsistent information you provided regarding what happened to your home on the night your business was allegedly set on fire, raises concerns about the validity of your claims regarding the destruction of your business by members of the PA.
·
In your statutory declaration you claimed the arrest of your Tamil employee occurred on 4 October 2000 when the police came to your shop. However in the hearing you claimed the arrest of your employee occurred after your shop had been set on fire, which you claimed occurred on
12 October 2000. You also claimed in the hearing, as you did in your statutory declaration, that you were detained when you went to the police station a few hours later to check on your employee. Yet in the hearing with the first Tribunal, you had claimed you and your employee were both detained when the police came to your store, after you had gone to the police station to report the fire at your business. You also claimed in your statutory declaration that you were detained overnight and the next morning the police took you to court and the magistrate released you on bail until
25 June 2001. However in the hearing you stated you were not taken to court and you were not sure if there were any conditions attached to your release. Instead, you claimed a lawyer sent by your family spoke to the police and you were then freed. You had also claimed in the hearing with the first Tribunal you were released the next day without any conditions.
This information is relevant because the discrepancies in your evidence as to the timing of when your Tamil employee was arrested, when you were detained by the police and the circumstances connected with your release from detention the next day raises concerns about the credibility of these claims and serious doubts you were ever arrested as you claimed.
·In your protection visa application you stated you lived at the same address in [Place A] until May 2001 when you left Sri Lanka, the same address at which your family is currently residing.
This information is relevant because the fact you had initially claimed in your application to have lived at your home in [Place A] prior to departing the country raises serious doubts you ever went to live in [Place B] for a period of 5-6 months before you left Sri Lanka.
·In the hearing you raised for the first time the chairman of the local council, who was a PA member, was pursuing you because you had won a number of tenders over a period of years from 1993 to 1997, which he had also applied for and it was for this reason he was against you.
This information is relevant because your failure to raise this claim in either your statutory declaration or in the hearing with the first Tribunal raises concerns regarding the credibility of these claims.
On 23 October 2006, the Tribunal received a request for an extension of time to provide comments. The reason given was:
The transcription of the hearing tapes is yet to be received from Legal transcripts after which the applicant will require time to peruse it in the light of the notice and then give me the necessary instructions to reply. In the circumstances the applicant requests an extension of time till 20/11/06 to respond.
The Tribunal refused that request on the day it was received.
On 25 October 2006, the Tribunal received comments from the applicant’s migration agent as follows:
As to the first dot point
The applicant instructs that he assumed it was [Y] “going past at that time”. Although, the applicant did not mention the name of [Y] initially and only responded to that name after the Tribunal has drawn his attention to it, it does not appear that the applicant said that [Y] was responsible for the damage. As to the damage to his property he maintains that the people were thugs from a different area.
The inconsistency that the Tribunal speaks about namely as to the persons who came to the applicant’s shop is in fact not an inconsistency, in that the applicant has maintained that he did not recognise any of the thugs.
As to the second dot point
Whilst in fairness the applicant did say that he could not remember having said that the valuables in his house were stolen and that in response to a question by the tribunal as to whether anything else happened to his house and to which he replied “No”, his statutory declaration gives two separate dates, Ie- 3/10/2000 the day the glass windows in his shop was broken and the 12/10/2006 the day his shop was set alight. The tribunal does not appear to have clarified this issue.
As to the third dot point
There is consistency in what the applicant says in that when he went to the police station to check on his employee and he too was detained. The applicant, being a layman may not understand the precise legal manouvers (sic) of his release and can only recount what he thinks happened. It may not be allowable for the Tribunal to rely on any information that the applicant gave before the first tribunal in this regard.
As to the fourth dot point
The applicant said that he did not stay at [Place B] for a long time (for about five months). It was not a permanent address.
As to the fifth dot point
This point does not appear to find a place in the transcript. The applicant requests time to check the transcript and respond. It appears that a portion of the tape may have been inadvertently not transcribed.
In summary the applicant submits that these events happened more than six years ago and the applicant finds it difficult to recall the precise sequence of events. Further, the manner in which both tribunals put question (sic) to him may have resulted in non identical answers.
The applicant seeks an extension of time to rectify any mistakes/omission in the transcription and respond (sic) the tribunal’s notice adequately.
By letter dated 27 October 2006, the Tribunal refused the applicant’s further request for more time to comment on the information provided by the Tribunal.
Tribunal’s reasons for decision
In its findings and reasons, the Tribunal said:
The Tribunal accepts the applicant was a supporter of the UNP from 1984 and that he joined as a member of the party in 1990. It is satisfied the applicant was just an ordinary member of the party as he held no official position. The Tribunal is also satisfied the applicant was not a staunch supporter or (sic) the UNP and nothing more than an ordinary member of the party given he could not remember when the election was held in 1994 or the date on which the election was held in October 2000 despite the fact he claimed he actively supported the UNP during these elections. The applicant was also not able to accurately recall that the Presidential election was held in 1999 and not 2000 as he claimed or when his party came back to power, stating it was either 2001 or 2002. …
The Tribunal made findings about the applicant’s support of the UNP during the October 2000 elections, saying that:
The Tribunal accepts the applicant also supported the UNP during the October 2000 elections. It accepts the applicant actively participated in a number of low level activities during this election such as canvassing from door to door, pasting posters and hanging flags outside his shop, helping with decorations for election rallies and using his shop as an office or meeting place to hold small discussions. The Tribunal also accepts the applicant allowed the UNP to have an election rally outside his shop on 2 October 2000. The Tribunal notes the applicant’s evidence in the hearing that nothing really happened during the rally. However, he claimed after the rally an incident took place at his store. The Tribunal does not accept that any event took place in the applicant’s store in the days following the rally based on the inconsistent information the applicant provided in relation to this particular incident. In the hearing, the applicant claimed about 2 days after the rally, opposition supporters came and broke the glass in one of his display cabinets and were screaming and swearing at him. He stated these people came in a vehicle which had opposition flags and posters on them but he could not identify the people as he thought they were thugs who had come from outside the area. Yet in the applicant’s statutory declaration attached to his protection visa application he claimed this particular incident took place the day after the rally, on 3 October 2000, and the ruling party candidate, [Y] had come to his shop with his supporters and abused him with foul language and broke his front window. When the Tribunal put his inconsistency to the applicant he claimed there were posters on the jeeps which came to his store and that was what he meant. He also mentioned this particular person in his statutory declaration because he assumed it was him as his rally was going past at the time. The Tribunal does not accept the applicant’s explanation for the discrepancy in his evidence. He quite clearly claimed in his statutory declaration that [Y] was present at the time of the incident at his shop following the rally however in the hearing he claimed he could not identify any of the people responsible. The Tribunal has considered the applicant’s response to this particular inconsistency in his submission dated 25 October 2006, however it does not accept that this provides any clear explanation for the discrepancy identified in his evidence. Although the applicant claimed there was no inconsistency because he maintained he could not recognise any of the thugs responsible, the Tribunal notes again the applicant claimed in his statutory declaration it was [Y] who came to his store, with his thugs, and damaged his property. For his reason, the Tribunal does not accept the applicant’s store was vandalised and he was verbally abused by opposition supporters, in the days following the UNP rally held outside his business premises. It follows that the Tribunal does not accept the applicant went to the police to report this alleged incident and the officer in charge refused to take his complaint because of his connections with the PA.
With respect to the applicant’s claim that his business was destroyed by fire, the Tribunal said:
The Tribunal does not accept the applicant’s business was set on fire and destroyed by PA supporters on 12 October 2000. It is not satisfied the applicant’s business was destroyed at all given no evidence has been submitted to substantiate this claim. The Tribunal also has difficulty accepting PA members would burn down the applicant’s business given the applicant’s low level profile and the fact it is not satisfied the applicant experienced any difficulties following the rally held ten days earlier. The Tribunal also notes the applicant has provided inconsistent information about what transpired that night. In his statutory declaration he claimed the PA thugs also came to his home looking for him and stole all his valuables from his home and he managed to avoid them by staying at his neighbour’s home. However in the hearing, he claimed he was at home at the time his shop was set on fire and nothing happened to his home. The Tribunal had considered the applicant’s response to the Tribunal’s s424A letter, dated 25 October 2006, but finds that it in no way explains the inconsistencies outlined. For these reasons, the Tribunal is not satisfied the applicant’s business was set on fire and destroyed by the PA as claimed.
The Tribunal also considered the applicant’s claim that an employee of his business was arrested on suspicion of being an LTTE member, saying that:
The Tribunal also does not accept the applicant’s Tamil employee was arrested on suspicion of being an LTTE member and the applicant was also detained because he was accused of assisting the LTTE. The Tribunal again found a number of discrepancies in the applicant’s evidence. In his statutory declaration the applicant claimed this incident occurred on 4 October 2002 when the police came to his shop and arrested his employee on the pretext he was an LTTE member. However in the hearing he claimed the arrest of his employee occurred after his shop had been set on fire, which he claimed occurred on 12 October 2000. The applicant had also claimed in the hearing, as he did in his statutory declaration, that he was detained when he went to the police station a few hours later to check on his employee. Yet in the hearing with the first Tribunal, he had claimed he and his employee were both detained when the police came to his store, after he had gone to the police station to report the fire at his business. The applicant had also claimed in his statutory declaration that he was detained overnight and the next morning the police took him to court and the magistrate released him on bail until 25 June 2001. However in the hearing he stated he was not taken to court and he was not sure if there were any conditions attached to his release. Instead, the applicant claimed a lawyer sent by his family spoke to the police and he was then freed. The Tribunal also notes in the hearing with the first Tribunal the applicant claimed he was released the next day without any conditions. The Tribunal has considered the applicant’s response to the Tribunals s424A letter and recognises he may not have an understanding of the police procedures however this does not explain the vast factual discrepancies in his evidence that he was arrested with his employee from his store, compared to his evidence he was arrested when he visited his employee, who had been previously detained by the police, at the police station. Nor does it explain the applicant’s evidence in (sic) statutory declaration that he was taken to court and released on bail compared to his evidence in the hearing that he was not taken to court at all. The Tribunal notes the applicant has not addressed the inconsistency in his evidence as to the timing of this particular incident or the circumstances surrounding his release from detention. Given these important discrepancies in the applicant’s evidence as to what took place in relation to the arrest of him and his employee on the basis of being suspected of association with the LTTE, the Tribunal does not accept either the applicant or his employee was (sic) ever detained by the police as he claimed. It does not accept the applicant was ever accused or charged with helping the LTTE. The Tribunal does not accept the applicant has been wanted by the police since this alleged incident occurred.
The Tribunal considered the applicant’s claim to have moved from Place A to Place B after he was released from detention, saying that:
As the Tribunal does not accept the applicant was ever of any interest to the police because of his employment of a Tamil person who was alleged to be LTTE or that he was of interest to the PA because of his support for the UNP, the Tribunal does not accept the applicant was advised by [X] to move with his family to [Place B]. It does not accept the applicant lived in [Place B] from the time he was allegedly released from detention, up until he left the country for Australia, which was a period of 5 to 6 months. The Tribunal also notes the applicant claimed in his protection visa application that he lived at the same address in [Place A] until May 2001 when he left Sri Lanka, the same address at which his family is currently residing. The Tribunal does not accept the applicant did not include details of his [Place B] address because he was only there temporarily and his permanent and postal address was in [Place A]. The Tribunal is satisfied the reason the applicant did not include the [Place B] address in his protection visa application was because he was not living there as he claimed.
With respect to the claim about the tender process, the Tribunal said:
The applicant raised new claims in the hearing regarding why the now chairman of the local council, who was a PA member, was pursuing him. The applicant claimed both he and this person had applied for a number of tenders over a period of years from 1993 to 1997, which he had won and for this reason he was against him. The Tribunal does not accept the applicant tendered for work in competition to this person given the applicant had not previously claimed this at any stage up until this hearing. The Tribunal also notes the applicant claimed, when asked at the beginning of the hearing what sort of business he ran, he stated it was a textile business. He did not mention that for a period of at least four years he was also involved in tendering for construction work. The Tribunal also finds it far fetched that if the reason why this person was pursuing the applicant was because he had won tenders this person wanted to get, he would wait until 2000 and thereafter to get his revenge and not at the time the applicant was participating in the tender process and winning the work. As the Tribunal put to the applicant, the period in which he alleged he was applying for these tenders and winning them was when the PA were in power so it was implausible this member of the PA, who was not the chairman of the local council, would not have done competing at that time. For the reasons provided above, the Tribunal is satisfied the applicant never applied for any tenders in competition to this particular PA member. The Tribunal does not accept the applicant was being pursued by this particular person either because of his support for the UNP or because he had competed against him for various tenders.
Grounds of review
In the amended application filed on 19 March 2007, the applicant set out 11 grounds of review. At the hearing before this court, the applicant said that his essential attack on the Tribunal’s decision was that his Grounds 2, 3, 6 and 7 demonstrated a breach of ss.420 and 430 of the Migration Act 1958 (“the Act”) for reasons of illogicality and that Ground 6 demonstrated that the review conducted by the Tribunal was not fair.
Section 420 of the Act provides as follows:
(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.
The High Court determined in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 that s.420 of the Act does not create any substantive rights. The Full Federal Court in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 at [25] held that s.420 of the Act “cannot provide any foundation for establishing excess of jurisdiction”. That is, the general exhortation in s.420 of the Act for the Tribunal to provide a mechanism of review that is fair cannot provide a basis for establishing jurisdictional error. This ground is not made out.
The High Court’s decision in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 makes it clear that the Tribunal’s obligation under s.430 of the Act is to set out the findings it actually made and the reasons it actually had for its conclusions. The applicant did not indicate anything at the hearing that could amount to a breach of s.430 of the Act or how any such breach might be a jurisdictional error.
As regards illogicality, I am not persuaded that the applicant identified anything that could properly be regarded as illogical in the Tribunal’s reasons for decision. Moreover, the authorities indicate that illogicality, in itself, is not a jurisdictional error. However, as the applicant placed considerable emphasis on this argument, I will address it in some detail.
The applicant relied on Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and R v Connelland Another; Ex parte the Hetton Bellbird Collieries Limited and Others (1994) 69 CLR 407. The applicant relied firstly on the well known passage from the decision of Latham CJ at page 432 of the R v Connell which says:
It is therefore well settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form. Unless such a rule were applied legislation of this character would mean that the person concerned had an absolutely uncontrolled and unlimited discretion with respect to the extent of his jurisdiction and could make orders which had no relation to the matters with which he was authorized to deal. It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.
The applicant also relied upon the passage from the judgment of Deane J in Australian Broadcasting Tribunal v Bond at pages 366 to 367 where his Honour said:
If the actual decision could be based on considerations which were irrelevant or irrational or on findings or inferences of fact which were not supported by some probative material or logical grounds, the common law's insistence upon the observance of such a duty would represent a guarantee of little more than a potentially futile and misleading facade. If the decision were determined by the toss of a coin or some other arbitrary procedure, the "right" to a hearing would be illusory. …
…
If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. …
The applicant also relied on the dissenting judgment of Kirby J in S20/2002 at paragraphs 108, 113, 114, 115, 116, 131 and 132 as follows:
[108] Finkelstein J described the decision of the tribunal as “flawed”. [Footnote: (2001) 109 FCR 424 at 433 [34], 437 [54]; 183 ALR 59 at 67, 71–2; 65 ALD 119 at 127, 131–2.] He analysed the identified defects by reference, amongst other things, to the treatment given to the evidentiary items (a), (b) and (c) previously described in these reasons. He classified “[m]any of the findings made by the Tribunal concerning the ‘inconsistencies’ in [the appellant's] evidence” as well as the “supposedly ‘inconsistent’ independent evidence” as “plainly erroneous”. [Footnote: (2001) 109 FCR 424 at 437 [51]; 183 ALR 59 at 71; 65 ALD 119 at 131.] He acknowledged that such erroneous findings of primary fact were not, as such, reviewable under the Act. However, in his Honour's view, “the manner in which the Tribunal dealt with the corroborative evidence stands on a different footing”. [Footnote: (2001) 109 FCR 424 at 437 [53]; 183 ALR 59 at 71; 65 ALD 119 at 131.]
…
[113] In an application for judicial review, the focus is upon the nature and source of the power exercised by the administrative decision-maker who made the impugned decision, as well as the source of the court's power to review that decision and the process by which it was made. The nature and source of the official's power will usually be deduced from the enactment pursuant to which he or she has acted. By contrast, the review can be conducted pursuant to the common law, or a general judicial review statute, [Footnote: Such as the Administrative Decisions (Judicial Review) Act 1977 (Cth), which was inapplicable in the present proceedings.] or pursuant to the statute that confers the power on the official, [Footnote: It was the Act, in s 476, that supplied the grounds of review in the Federal Court; cf s 37(4)(a) of the Workers’ Compensation Act 1926 (NSW) providing for “appeal” in “point of law” from decisions of the Workers’ Compensation Commission, considered in Azzopardi (1985) 4 NSWLR 139 at 141, 151.] or the Constitution (in proceedings for the constitutional writs).
[114] Regardless of the supervisory jurisdiction invoked in a particular case, judicial review is said to be limited to reviewing the legality of administrative action. Such review, ordinarily, does not enter upon a consideration of the factual merits of the individual decision. The grounds of judicial review ought not be used as a basis for a complete re-evaluation of the findings of fact, [Footnote: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–6 ; 94 ALR 11 at 37–8 (Bond); Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 597–8 ; 144 ALR 567 at 596–7 ; 48 ALD 481 at 508–9 (Guo).] a reconsideration of the merits of the case [Footnote: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36–8 ; 93 ALR 1 at 25–7 (Quin); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391 ; 87 ALR 412 at 419–20 (Chan); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–2, 291; 136 ALR 481 at 490–1, 505–6 (Wu Shan Liang); Guo (1997) 191 CLR 559 at 577 ; 144 ALR 567 at 580–1 ; 48 ALD 481 at 493–4.] or a relitigation of the arguments that have been ventilated, and that failed, before the person designated as the repository of the decision-making power. [Footnote: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 344 [63], 372 [153]; 180 ALR 1 at 16, 38; 62 ALD 225 at 239–40, 262 (Yusuf); Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 at 408 [26], 425 [105]; 76 ALJR 1048 at 1053, 1065 (Rajamanikkam).]
[115] The foregoing fundamentals were not challenged before this court. The limitations inherent in proceedings for judicial review were acknowledged by the appellant. The primary function of the judicature is to declare and enforce the law. Judges do not ordinarily lay claim to any special advantages in administrative decision-making. Furthermore, the grounds of judicial review in the appellant's proceedings in the Federal Court, available under the Act, had been significantly narrowed.
[116] As Finkelstein J acknowledged, a wrong finding of fact by an administrative official does not provide a sufficient ground for a court's intervention. [Footnote: (2001) 109 FCR 424 at 437 [51]; 183 ALR 59 at 71; 65 ALD 119 at 131. See Waterford v Commonwealth (1987) 163 CLR 54 at 77 ; 71 ALR 673 at 688–9 ; 12 ALD 741 per Brennan J.] However, an analysis of the process of fact-finding, and the degree to which findings are referrable to the evidence adduced, may disclose reviewable error. Whether a court is entitled to intervene then depends upon the decision-making and statutory context, as well as the grounds of review that are available. Flaws apparent in fact-finding may, for instance, disclose, or confirm, that the administrator has misunderstood the applicable legal criteria, or otherwise trespassed beyond the jurisdiction or authority conferred by the enactment. It has also been said that the requirement for findings of fact to be based on probative material and logical grounds may be an aspect of natural justice. [Footnote: Mahon v Air New Zealand [1984] AC 808 at 820–1, 838; (1983) 50 ALR 193 at 207–8, 224; Bond (1990) 170 CLR 321 at 367–8 ; 94 ALR 11 at 46–7.]
…
[131] Would all of the foregoing considerations entitle a court to conclude that there was a total absence of jurisdiction in this particular case? It has been said that it is not the role of a supervising court to form its own view of the weight to be given to different elements of the evidence. [Footnote: See Wu Shan Liang (1996) 185 CLR 259 at 281–2 , 291–2 ; 136 ALR 481 at 497–8 ; 41 ALD 1 at 15–16.] That may explain why the appellant did not seek to present his case in that way.
[132] However, a court could also be asked to review the process by which the tribunal arrived at its “satisfaction” to determine whether it was consistent with the fact-finding procedure envisaged by the Act for the assessment of applications for a protection visa. [Footnote: Abebe v Commonwealth (1999) 197 CLR 510 at 579 [195] ; 162 ALR 1 at 53–4 ; 55 ALD 1 at 53 (Abebe) per Gummow and Hayne JJ.] The focus in such an inquiry is upon the character of the decision and the fact-finding process necessary for the tribunal to reach the requisite satisfaction about the person's status. This was the route that the appellant invited this court to take.
The applicant argued that R v Connell and Deane J’s judgment in Bond had not been overturned and remained good law and that Kirby J’s dissenting reasons in S20/2002 were supported by the earlier decisions.
The first respondent argued that R v Connell did not say that any illogicality would be a jurisdictional error, but that a decision would not stand if the decision maker had misunderstood the nature of the opinion which he was required to form or if the opinion was formed by taking into account irrelevant considerations or by misconstruing the terms of the relevant legislation. The first respondent argued that the applicant had not pointed to any such error in this case. The first respondent also referred to the well known passage from the judgment of Mason CJ at page 356 of Bond which reads as follows:
But it is said that "[t]here is no error of law simply in making a wrong finding of fact": Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J. Similarly, Menzies J observed in Reg v District Court; Ex parte White (1966) 116 CLR 644 at 654]
"Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g illogical) inference of fact would not disclose an error of law."
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
The first respondent noted that Kirby J was in dissent in S20/2002, but, in any event, noted that his Honour at [116] said that flaws in fact finding may indicate that the decision maker has misunderstood the applicable legal criteria, or otherwise trespassed beyond the jurisdiction conferred by the enactment. The first respondent submitted that the applicant had not pointed to any such misunderstanding or trespassing in the current case. In any event, the first respondent noted that in SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 Tamberlin J sitting in the appellate jurisdiction of the Federal Court said the following at paragraphs [14]-[17]:
[14] The law is settled at the appellate level in this Court that the want of logic does not, of itself, suffice to constitute an error of law: see NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [30] per the Court (NACB); VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18]-[19] per the Court (VWST); NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [25] per the Court (NATC); and W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] per Lee and Carr JJ. In accordance with the settled authority, I would not depart from these decisions unless I formed the view that they were clearly wrong in principle on this point.
[15] The representative for the appellant referred to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38], where Gummow and Hayne JJ said:
"The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds." (Emphasis added)
[16] Their Honours based these remarks on a similar observation in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [37] and [52] per McHugh and Gummow JJ and at [173] per Callinan J (S20/2002). Those remarks were considered by the Full Court in NACB, VWST and NATC but they did not deter their Honours from concluding that illogical reasoning without anything more is not sufficient to constitute jurisdictional error. It is to be noted that in S20/2002, their Honours concluded that the determination by the Tribunal was not irrational or illogical as contended for, so the question did not arise for determination. Chief Justice Gleeson noted that it is often unhelpful to discuss, in the abstract, the relevant consequences of irrationality, or illogicality or unreasonableness. At [9], the Chief Justice said, after referring to illogicality:
"... If in a particular context, it is material to consider whether there has been an error of law, then it will not suffice to establish some faulty inference of fact."
His Honour then applied the observations of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.
[17] Having regard to the Full Federal Court decisions that I have referred to above, I do not consider that illogicality on its own, of the type which is here alleged, amounts to jurisdictional error. I note that in the above obiter in SGLB, their Honours did not suggest that illogicality is sufficient but rather that there must also be a determination based on findings of fact not supported by logical grounds.
I accept that illogicality in itself has in relatively recent times been held by Full Courts of the Federal Court in the cases mentioned in SZEEO to not constitute jurisdictional error. Those cases are of course binding upon me. Having said that, there may be cases where illogicality is accompanied by a failure to take into account relevant considerations or a misunderstanding of the applicable legal criteria or the making of a decision without evidence. In any of those cases, there will be jurisdictional error, not because of the illogicality as such, but because of the other error that accompanies it. That appears to me to be the import of the High Court authorities referred to above. In any event, I do not consider that the applicant has pointed to any illogicality or any jurisdictional error. Accordingly, this ground is not made out.
Ground 1: other material
The first ground in the amended application was expressed by the applicant as follows:
The Tribunal has erred in not identifying and particularising the “other material available to it from a range of sources” and whether this material was information or otherwise which ought to have been put to the applicant in accordance with law.
The applicant advanced no submissions concerning this ground either in writing or orally at the hearing before this court. However, at the hearing, Mr Fernandez advised the court that he did in fact rely upon all of the grounds set out in the amended application. In my view, there is no merit in the first ground of the amended application for the reasons set out in the first respondent’s written contentions. Those reasons are as follows:
[27] Section 430 of the Act states that, in its decision, the Tribunal must set out the reasons for its decision, the findings on any material questions of fact and the evidence or any other material upon which the findings of fact were based. However, section 430 requires only the recording of what was found and what evidence or other material was relied upon to make the recorded findings. [Footnote: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [33]-[35], [68]-[69], [77]-[78], [205] and [216]-[217]. See also SZFAT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 1062 at [11].] (emphasis in the original)
[28] There was no obligation on the Tribunal to set out evidence or other material which was not the basis for its recorded findings of fact.
[29] Furthermore, the Tribunal was not obliged to refer to each and every item of evidence before it. [Footnote: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [1] and [76]-[79].] It was not incumbent on the Tribunal to give a line-by-line refutation of evidence which was contrary to its findings of material fact. [Footnote: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423.]
[30] There is also nothing in the Tribunal’s decision to suggest that, even if its findings of fact were based on “other material available to it from a range of sources”, this material was not set out in the Tribunal’s decision. [Footnote: SZEGN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 653 at [10].]
[31] Finally, it cannot be said that any aspect of the “other material available to it from a range of sources” was the reason or part of the reason for the Tribunal’s decision. In such circumstances, the operation of section 424A could not have been enlivened. Nor could it be said that any common law natural justice obligations arose. [Footnote: SZCWJ v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1014 at [21].]
Ground 2: finding contrary to the evidence
The second ground set out in the amended application was expressed as follows:
The Tribunal’s findings that it “is also satisfied that the applicant was not a staunch supporter of the UNP and nothing more than an ordinary member of the party” is a finding contrary to the evidence (for among other things the massive rally that was held outside the applicant’s business premises) and the taking into account of irrelevant facts (for among other things the inability to recall the dates of previous elections), illogical and not fair to the applicant.
The applicant firstly says that the finding that the applicant was not a staunch supporter of the UNP was a finding contrary to the evidence. It is not a jurisdictional error to make a finding contrary to the weight of evidence provided that there is some material in support of the finding. In the present case, the Tribunal considered that the facts that the applicant was unable to recall:
a)the dates of the elections in 1994 and 2000 despite the fact that he claimed to have actively supported the UNP during those elections;
b)that the presidential election was held in 1999 and not 2000 as he claimed; and
c)when his party came back in to power, saying it was 2001 or 2002,
were not indicative of the applicant being a staunch supporter as opposed to an ordinary member of the party. These facts constituted material in support of the Tribunal’s findings. Accordingly, the error alleged is not made out.
The applicant then argues that in reaching its conclusion, the Tribunal took into account irrelevant facts, such as the applicant’s inability to recall the dates of previous elections. The applicant did not explain why he considered his inability to recall the dates of previous elections to be an irrelevant fact. The Tribunal of course has a broad discretion to take into account such matters as it considers relevant subject to any express or implied limitations in the governing legislation. The applicant did not point to any restriction, whether express or implied, in the Act or the Migration Regulations 1994 which prohibited the Tribunal from taking into account the applicant’s inability to recall the dates of previous elections. I do not consider that the applicant’s inability to recall the dates of previous elections could properly be described as irrelevant.
Having said that, if the Tribunal had relied solely on the applicant’s inability to recall the precise date of the election in 1994, the Tribunal may well have drawn a conclusion unreasonably. However, the Tribunal relied on a number of other matters including the applicant’s inability to accurately recall the year of the presidential election in 1999 or 2000 and the fact that the applicant was unable to accurately recall when his party came back to power, stating that it was either in 2001 or 2002. In my view, it was open to the Tribunal to conclude that a person was not a staunch supporter of the political party if they could not recall such details accurately.
The applicant also argues that the Tribunal’s findings in this regard were illogical. The applicant did not explain why the finding was said to be illogical. To my mind, there was no illogicality in the finding referred to by the applicant in Ground 2.
Ground 3: the alleged attack on the applicant’s shop
The third ground set out in the amended application was as follows:
The Tribunal asked the wrong questions and applied the wrong tests in its finding that the applicant’s store was not vandalised in that the section 424A notice proceeded on the ground that there was an inconsistency between what the applicant had stated in his statutory declaration as to the named person who had attended his place of business and his evidence before the Tribunal. The Tribunal failed to ask of the applicant if [Y] was a person who broke the glass showcase or no. Consequently, the inconsistent finding of the applicant’s evidence was an incorrect finding as there was no inconsistency.
The findings of the Tribunal in relation to this ground are as follows:
The Tribunal does not accept that any event took place in the applicant’s store in the days following the rally based on the inconsistent information the applicant provided in relation to this particular incident. In the hearing, the applicant claimed about 2 days after the rally, opposition supporters came and broke the glass in one of his display cabinets and were screaming and swearing at him. He stated these people came in a vehicle which had opposition flags and posters on them but he could not identify the people as he thought they were thugs who had come from outside the area. Yet in the applicant’s statutory declaration attached to his protection visa application he claimed this particular incident took place the day after the rally, on 3 October 2000, and the ruling party candidate, [Y] had come to his shop with his supporters and abused him with foul language and broke his front window. When the Tribunal put his inconsistency to the applicant he claimed there were posters on the jeeps which came to his store and that was what he meant. He also mentioned this particular person in his statutory declaration because he assumed it was him as his rally was going past at the time. The Tribunal does not accept the applicant’s explanation for the discrepancy in his evidence. He quite clearly claimed in his statutory declaration that [Y] was present at the time of the incident at his shop following the rally however in the hearing he claimed he could not identify any of the people responsible. The Tribunal has considered the applicant’s response to this particular inconsistency in his submission dated 25 October 2006, however it does not accept that this provides any clear explanation for the discrepancy identified in his evidence. Although the applicant claimed there was no inconsistency because he maintained he could not recognise any of the thugs responsible, the Tribunal notes again the applicant claimed in his statutory declaration it was [Y] who came to his store, with his thugs, and damaged his property.
In support of this ground, the applicant noted that in his statutory declaration in support of his protection visa application that he said at [9] that Y came to his shop and Y’s supporters, but not Y, broke his window. Paragraph 9 reads:
On 3rd October 2000, The (sic) ruling party candidate [Y] came to my premises with his supporters and abused me with foul language. In the process his supporters broke the front window of my shop.
The applicant referred to pages 8 to 9 of the transcript of the hearing before the Tribunal where the following exchange occurred:
What about after the rally? Did anything happen? - - - Not immediately after. But after a few days the opposition supporters came and broke one of my display – broken one of the glasses in one of the display cabinets, they came screaming and swirling to the shop.
This happened a few days after the rally? - - - Yes. I think about two days after the rally.
This was before the election? - - - (Direct) Yes.
How did you know these people were opposition members? - - - (Through interpreter) They came in – they had their flags hanging on their – they had posters on their vehicles. (Direct) Outside the vehicles.
Could you identify any of them – sorry, the people, could you identify any of the people who came and broke anything? - - - (Through interpreter) I think these people came from outside the area, they came from a different area, people like Turks and I couldn’t recognise them. I didn’t stay there, I ran away because I was scared they would hit me.
The applicant noted that the s.424A letter sent by the Tribunal asked the applicant to comment on this matter in the first dot point which is set out above. The applicant said that the Tribunal had misunderstood the evidence in that the applicant had said that Y was present but it was his thugs who damaged the shop. The applicant said this was explained in the response provided by the applicant on 25 October 2006. As noted above, the Tribunal did not accept the explanation provided by the applicant.
The first respondent argued that in relation to this ground, the applicant was simply disagreeing with the Tribunal’s assessment of the evidence and impermissibly asking the court to review the merits of the Tribunal’s decision. The first respondent noted that before making its decision, the Tribunal had advised the applicant of the perceived inconsistency and the applicant with the assistance of his legal representative had provided a response. The Tribunal took that response into account in making its decision. In these circumstances, the first respondent argued that the Tribunal’s approach did not give rise to jurisdictional error.
At the hearing before this court, the first respondent also referred to page 12 of the transcript of the hearing before the Tribunal where the following exchange occurred:
MEMBER: Now, when you were discussing what happened when your shop was vandalized after the rally in front of it, you said a day or two after the PA supporters came and broke the glass cabinet and then abused you. Now, you told me today that you couldn’t identify these people because – but you knew they were as PA members because they came in your jeep with the PA flag and posters on them. However, in your statement you stated it was the ruling party candidate [Y] who came to your premises with his supporters and abused you with foul language and broke the front window of your shop so there again we’ve got on the one hand you identifying who actually came to your shop after the rally and caused this damage, but you’ve told me today that you didn’t know who these people were and you though they were from outside?
INTERPRETER: Actually, what was – what was the name?
VOICE: [Y]
INTERPRETER: [Y- - -]
VOICE: [Y]. Ok, I’ve got just whatever was written in that – they obviously spelt it wrong in your statement? - - - (Through Interpreter) There was – there were posters on the (indistinct) he came to break the windows and vandalize the shop. That’s what I mean by (indistinct). When he came screaming, I was just about to run away, was getting ready to run away. On the application I made to the – I made – I mentioned that because I was – I assumed it was him because that was a rally he was – that was his rally that – going past the – going past at that time. So, I assumed that was him.
Although the applicant, with the benefit of legal advice, now argues that he has consistently meant that Y came to the applicant’s shop, but it was Y’s thugs who caused the damage, the passage at page 12 of the transcript of the hearing before the Tribunal indicates that the applicant simply assumed it was Y who had come to his shop. The applicant when asked by the Tribunal about these matters at pages 9 and 12 of the transcript did not give the explanation that the applicant’s legal adviser now gives or that was given by his legal adviser in the response to the s.424A notice.
When given the opportunity by the Tribunal at the oral hearing, the applicant did not say that he had meant that it was only Y’s thugs who had damaged his window. The applicant said that he had simply assumed that it was Y who had come to his shop. Moreover, it was open to the Tribunal to interpret the evidence that was given at page 9 of the transcript of the Tribunal hearing as meaning that the applicant was unable to recognise any of the people who came to his shop, including Y.
The Tribunal was entitled to reject the explanation given by the applicant’s legal advisers and was entitled to place weight on the evidence that the applicant himself gave to the Tribunal. That evidence contains a discrepancy with the evidence contained in the applicant’s statutory declaration. The discrepancy is that, in the statutory declaration, the applicant stated as a fact that Y came to his shop. In his oral evidence, the applicant said he simply assumed it was Y. That is, he implied that he was not able to identify Y. It was the difference between the claim as a fact that Y came to the applicant’s shop, and the claim that the applicant had merely assumed that it was Y that the Tribunal actually relied upon. The applicant in this ground is attempting to change the import of the Tribunal’s reasons. The question of who actually damaged the window was not the significant issue as far as the Tribunal was concerned.
In any event, at most, the matters complained of under this ground might give rise to an error of fact within the Tribunal’s jurisdiction. This ground is not made out.
Ground 4: the alleged fire
The applicant’s fourth ground as stated in the amended application was as follows:
The Tribunal’s finding to the effect that the applicant’s business was not destroyed by fire because there was no evidence submitted to substantiate this claim is incorrect in that the Tribunal has failed to consider the available evidence. Assuming there were inconsistencies, which the applicant denies, it nevertheless points to there being evidence.
The relevant finding was as follows:
The Tribunal does not accept the applicant’s business was set on fire and destroyed by PA supporters on 12 October 2000. It is not satisfied the applicant’s business was destroyed at all given no evidence has been submitted to substantiate this claim. The Tribunal also has difficulty accepting PA members would burn down the applicant’s business given the applicant’s low level profile and the fact it is not satisfied the applicant experienced any difficulties following the rally held ten days earlier. The Tribunal also notes the applicant has provided inconsistent information about what transpired that night. In his statutory declaration he claimed the PA thugs also came to his home looking for him and stole all his valuables from his home and he managed to avoid them by staying at his neighbour’s home. However in the hearing, he claimed he was at home at the time his shop was set on fire and nothing happened to his home. The Tribunal had considered the applicant’s response to the Tribunal’s s424A letter, dated 25 October 2006, but finds that it in no way explains the inconsistencies outlined. For these reasons, the Tribunal is not satisfied the applicant’s business was set on fire and destroyed by the PA as claimed.
The applicant said at the oral hearing that the evidence in support of the claim that the applicant’s shop had been set on fire by PA supporters was the applicant’s own evidence and the general country information set out at page 15 of the Tribunal’s decision where it was stated that:
The Centre for Monitoring Election Violence (CMEV) reported that after the December 2001 general elections, post election violence increased significantly compared to previous election (sic) of the 1970’s and early 1980’s. They reported that
…
The number of shops and houses burnt is most alarming since in the space of less than one week (and in a less than exhaustive coverage) this figure rivals the total for the entire five-week campaign … .
The first respondent argued that the evidence relied on by the applicant only addressed the general situation and did not provide any evidence in support of the applicant’s particular shop being set on fire. The first respondent argued that the Tribunal obviously expected the claim that the applicant’s shop had been set on fire could have been supported by documents such as an insurance claim, or a police report. The first respondent noted that the Tribunal went on to consider that even if the applicant’s shop had been set on fire, various inconsistencies in the applicant’s evidence persuaded the Tribunal it would not have been the PA that was responsible for the fire.
I do not accept that the general country information about the number of properties being set on fire during the elections in 2001 substantiated the claim that the applicant’s particular shop was set on fire in 2000. I also consider that the Tribunal was entitled to take the view that there would be some documentary record of a shop being burnt down in Sri Lanka such as a police report, insurance claim or newspaper report. The Tribunal was not obliged to accept the applicant’s assertions and was entitled to be unpersuaded by them in the absence of some material external to the applicant.
However, the more important point is that the Tribunal did not accept, for reasons that it gave, that the applicant’s shop, if it was burnt down at all, was burnt down for political reasons. That is a conclusion that overtakes the Tribunal’s comments about a lack of substantiation and is a conclusion that was not challenged by the applicant. Accordingly, this ground is not made out.
Ground 5: the alleged arrest
The applicant’s fifth ground as stated in the amended application was as follows:
Assuming that there is an inconsistency relating to the incident of the arrest and detention of the applicant tin (sic) connection with his employee, the Tribunal has failed to specify the manner in which the information or comments may be given in light of DFAT cable No. CIR377/98, dated 14/10/98 and whether the contents of this cable were the reason or part of the reason to infer an inconsistency.
At the hearing before this court, the applicant noted that the Tribunal at pages 16 to 17 of its decision referred to the content of certain DFAT cables as follows:
Sinhalese LTTE supporters
According to the following information from the Department of Foreign Affairs and Trade, a Sinhalese supporting the LTTE was considered utterly implausible:
DFAT PROVIDES THE FOLLOWING ELABORATION ON THE ADVICE GIVEN IN CX22852 THAT “APART FROM A SINHALESE COLLABORATING WITH THE LTTE FOR ILLEGAL FINANCIAL GAIN, IT IS UTTERLY IMPLAUSIBLE THAT A SINHALESE WOULD SUPPORT THE LTTE”.
DFAT ACKNOWLEDGES THAT WHILST THERE ARE PEOPLE OF ALL COMMUNITIES WHO BENEFIT FINANCIALLY FROM THE WAR IN SRI LANKA, AND THIS WOULD INCLUDE THROUGH PAYMENTS MADE BY THE LTTE, IT IS NOT CREDIBLE THAT A SINHALESE WOULD ‘SYMPATHISE’ WITH THE LTTE.
DFAT ADVISES THAT WHILST THERE COULD BE SINHALESE INTELLECTUALS WHO BELIEVE, THEORETICALLY, IN THE RIGHT OF THE TAMIL POPULATION TO SELF-DETERMINATION, AND POSSIBLY EVEN TO A SEPARATE TAMIL STATE, IT IS NOT CREDIBLE THAT A SINHALESE WOULD ‘SYMPATHISE’ WITH OR SUPPORT THE METHODS/ACTIVITIES OF THE LTTE. (DFAT CIR no. 377/98, dated 14 October 1998, CX32168)
The applicant argued that the Tribunal should have given notice to the applicant under s.424A of the DFAT cables. I do not accept that contention. The DFAT cables were not about a specific person. Accordingly, they fall within the exception in sub-s.424A(3)(a) of the Act. Moreover, the Tribunal did not refer in its findings and reasons to the DFAT cables. There is no reason to believe that the Tribunal relied on the DFAT cables in reaching its decision and therefore no reason to conclude that they were the reason, or part of the reason, for the Tribunal’s conclusion that there was an inconsistency in the applicant’s evidence about his alleged arrest and detention. The actual reasons for the Tribunal’s conclusion are set out at paragraph 17 above. Those reasons concern inconsistencies in the applicant’s evidence rather than the implausibility of a Sinhalese person being accused of supporting the LTTE. There is no warrant to conclude that the Tribunal reached its conclusions on this matter in reliance on the DFAT cables when it did not say it had.
In relation to whether this ground might have given rise to a question of common law procedural fairness, given that the application was filed in 2001, the first respondent noted that the DFAT cables had been:
a)reproduced in the delegate’s decision;
b)referred to by the first Tribunal at the hearing before it;
c)reproduced in the decision of the first Tribunal; and
d)discussed by the present Tribunal at the hearing before it as noted in the first paragraph of page 10 of the Tribunal’s reasons.
In these circumstances, it was submitted that the applicant was well and truly on notice about the DFAT cables and there was no denial of procedural fairness. I accept these arguments. This ground is not made out.
Ground 6: the alleged wrong questions
The sixth ground set out in the amended application is as follows:
The tribunal has asked the wrong questions and applied the wrong tests in relation to the applicant a) staying at [Place B] before his departure from Sri-Lanka and b) the tendering process submitted by the applicant. Consequently, the Tribunal’s section 424A notice in relation to these aspects of the applicant’s claims is not a valid notice.
This ground concerns the following passage from the Tribunal’s decision:
The Tribunal also notes the applicant claimed in his protection visa application that he lived at the same address in [Place A] until May 2001 when he left Sri Lanka, the same address at which his family is currently residing. The Tribunal does not accept the applicant did not include details of his [Place B] address because he was only there temporarily and his permanent and postal address was in [Place A]. The Tribunal is satisfied the reason the applicant did not include the [Place B] address in his protection visa application was because he was not living there as he claimed.
At the hearing before this court, the applicant argued that the above passage from the Tribunal’s decision disclosed error because the Tribunal had not appreciated that the protection visa application form in question 30 only asks the applicant to list those addresses where he or she has lived for 12 months or more in the last ten years. The applicant also pointed out that the transcript of the hearing before the Tribunal at page 11 showed that the applicant had told the Tribunal that his address at Place B was only a temporary address.
The first respondent noted that in response to question 30 on the protection visa application form, the applicant said that from February 1999 to May 2001, when he departed for Australia, he had lived at Place A. The first respondent pointed out that this was the evidence that the Tribunal relied upon when it said at page 19 of its reasons that:
The Tribunal also notes that the applicant claimed in his protection visa application that he lived at the same address in Place A until May 2001 when he left Sri Lanka... .
The first respondent also noted that this matter was addressed in point four of the s.424A notice and was also referred to at page 8 of the first Tribunal’s decision. The first respondent noted that the applicant’s response to the s.424A notice reiterated that the applicant did not stay at Place B for a long time and that it was not a permanent address.
The Tribunal did not accept that the applicant had any reason to go to Place B. That was the Tribunal’s principal reason for concluding that the applicant did not live there. As an additional factor, the Tribunal also noted that the applicant said in his protection visa application that he lived at the same address at Place A until May 2001. That was clearly inconsistent with the applicant’s claim to have lived in Place B for the five to six months before he left Sri Lanka in May 2001.
The Tribunal’s conclusion that the applicant did not include Place B in his protection visa application because he was not living there may have involved a misreading of the form by the Tribunal. However, the first respondent argued that any such error had no material impact on the decision because the Tribunal had already decided that the applicant had no reason to leave Place A and therefore did not live in Place B. The respondent referred to Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] where McHugh, Gummow and Hayne JJ make it clear that an error will only amount to a jurisdictional error if it affects the exercise of the power. The first respondent submitted that any error made in relation to the information on the form did not affect the exercise of the Tribunal’s power in this case. I accept the first respondent’s submissions on this point. Ground 6, insofar as it relates to Place B, is not made out.
The applicant also referred in relation to Ground 6 to the tender the applicant claimed he had submitted in opposition to a PA supporter. The applicant did not address this issue in either his written submissions or his oral submissions before this court. I am unable to perceive any basis on which the Tribunal asked the wrong question or applied the wrong test in relation to the alleged tender. Nor am I able to detect any inadequacies in the Tribunal’s s.424A notice in relation to the alleged tender in competition with a member of the PA. Accordingly, this aspect of Ground 6 is also not made out.
Ground 7: findings allegedly contrary to the evidence
The seventh ground set out in the amended application is as follows:
The Tribunal has found contrary to the evidence and even DFAT cables in respect of electoral violence in Sri-Lanka and failed to correctly interpret DFAT cables CIR 377/78 and CX 32168 in the context of the applicant’s claims.
The applicant did not elaborate on how the Tribunal’s findings were contrary to the evidence except perhaps in the argument under Ground 5 that there was country information to the effect that many houses and shops were burnt down in the December 2001 election. The DFAT cables addressed the general situation in Sri Lanka rather than the applicant’s specific circumstances. Therefore, it cannot be said that the Tribunal made findings contrary to the evidence. In any event, the only available ground of review in this connection is that there was no evidence or probative reason at all for the conclusion. This ground is not made out.
Ground 8: the extension of time
The eighth ground set out in the applicant’s amended application is as follows:
The Tribunal has not treated the applicant with procedural fairness in failing to grant to the applicant an extension of time to check the transcript for any omission and to respond to the section 424A letter.
The Tribunal sent the applicant a letter under s.424A of the Act on
11 October 2006. The letter sought the applicant’s response by
25 October 2006. On 23 October 2006, the applicant sought an extension of time for the reason that:
The transcription of the hearing tapes is yet to be received from Legal transcripts which the applicant will require time to peruse it in the light of the notice and then give me the necessary instructions to reply. In the circumstances the applicant requests an extension of time till 20/11/06 to respond.
Also on 23 October 2006, the Tribunal refused that application. On
25 October 2006, the applicant responded to the s.424A letter. In response to the fifth dot point, the applicant referred to the transcript of the hearing before the Tribunal. The applicant said:
This point does not appear to find a place in the transcript. The applicant requests time to check the transcript and respond. It appears that a portion of the tape may have been inadvertently not transcribed.
By letter dated 27 October 2006, the Tribunal advised that it would not grant an extension. The Tribunal’s decision was handed down on
8 November 2006.
The applicant said that in view of the reasons the applicant had given for seeking an extension of time, it was a denial of natural justice for the Tribunal to refuse the request. The applicant also referred to s.420 of the Act.
The first respondent argued that no provision of the Act required the Tribunal to extend time. Additionally, the first respondent argued that all of the matters contained in the s.424A letter of 11 October 2006 were raised with the applicant at the hearing on 29 August 2006 as shown at pages 8 to 11 of the Tribunal’s reasons for decision. The first respondent noted that the applicant was represented at the hearing before the Tribunal by a person who was both a migration agent and a lawyer. The first respondent also noted that the applicant was provided with a copy of the tapes of the hearing and the applicant arranged for the tapes to be transcribed. The first respondent argued that the applicant had been aware since at least the date of the Tribunal’s hearing on 29 August 2006 of the matters upon which the Tribunal would rely in its decision.
Additionally, the first respondent noted that a number of the matters relied on by the second Tribunal had also been relied upon by the first Tribunal, particularly at page 8 of its reasons for decision. The first respondent said that the applicant had had more than five years to gather evidence in support of his claims and the Tribunal had not been unreasonable in its decision. Furthermore, the first respondent argued that the applicant bears the onus of making out the factual foundation of a claim of natural justice: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45]. The first respondent noted that the applicant had not shown what, if any further material he would have put before the Tribunal if he had been granted an extension of time.
In my view, the Tribunal’s refusal to give an extension of time did not constitute a denial of natural justice. The first request was made on
23 October 2006 on the basis that the applicant did not yet have the transcript. The extension was sought until 20 November 2006. However, it is apparent from the response provided on 25 October 2006 that the applicant had the transcript at that date. The applicant then sought a further extension to enable him to check the transcript.
However, the transcript can be checked simply by listening to the tapes which the applicant clearly had. The only aspect of the matter about which the applicant in his second request for an extension sought to check the tape related to the applicant’s alleged tenders in competition with a PA member. That is a single confined issue which could have been checked quite quickly.
I also note that the transcript of the Tribunal hearing indicates at page 14 that Mr Fernandez was expecting a s.424A letter and asked for the tapes of the Tribunal hearing so that he could have them transcribed. The Tribunal hearing took place about five or six weeks before the Tribunal’s s.424A letter was sent. Mr Fernandez was present at the hearing before the Tribunal. In the circumstances, I consider that Mr Fernandez had ample opportunity to obtain the transcript and check it for accuracy before the s.424A letter arrived.
In these circumstances, the refusal of an extension of time was not a denial of natural justice. This ground is not made out.
Ground 9: verbal taunts
The ninth ground set out in the applicant’s amended application is as follows:
In saying that the applicant is subjected to verbal taunts from opposition supporters, the Tribunal has failed to consider the important integers that bring the applicant’s claim within the ambit of section 91R of the Act.
The applicant did not elaborate on this ground at the hearing. The first respondent said in written submissions that the Tribunal dealt with his claim and accepted that he had experienced verbal taunts in the 1994 election but did not consider that it amounted to persecution within the meaning of the convention. The first respondent argued that the Tribunal’s conclusion was open to it as a matter of fact and degree. The first respondent referred to a number of cases in support of that proposition including the decision of Crennan J in the Federal Court in VBAS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 435 at [28] and VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 at [24].
In my view, it was open to the Tribunal to consider that verbal taunts did not constitute serious harm amounting to persecution. This ground is not made out.
Ground 10: alleged failure to review the decision
The tenth ground set out in the amended application is as follows:
The Tribunal has failed to review the decision of the delegate in accordance with the Act, upon it (sic) remittal from the Federal Magistrates Court.
This ground was not particularised orally or in writing. The court is not able to find that it is made out.
Ground 11: inconsistencies
The eleventh ground set out in the amended application is as follows:
Part of the essential and important claim (sic) of the applicant occur within a two week period, i.e from about 2/10/2000 to about 12/10/2000. By attempting to establish inconsistencies in the applicant’s evidence as a ground of credibility, the Tribunal has failed to consider the applicant’s claims in the light of the Convention and has failed to treat the applicant with procedural fairness and natural justice.
The applicant did not elaborate on this ground orally or in writing. The Tribunal clearly identified a number of inconsistencies in the applicant’s claims both in the oral hearing and the s.424A letter. The Tribunal was entitled to assess the applicant’s credibility and find it wanting. I am unable to conclude that the Tribunal failed to treat the applicant with procedural fairness and natural justice, or failed to consider the applicant’s claims in the light of the Convention.
Conclusion
For these reasons, none of the applicant’s grounds has been made out. Accordingly, the application must be dismissed with costs.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
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