Meadows, John v The Minister for Immigration and Multicultural Affairs
[1997] FCA 1411
•12 DECEMBER 1997
FEDERAL COURT OF AUSTRALIA
MIGRATION - application for review of decision of Refugee Review Tribunal (“RRT”) that applicants were not refugees - adverse finding by RRT as to credibility of applicants - finding that letters submitted by the applicants to the RRT were fabricated - whether RRT failed to act according to substantial justice and the merits of the case - whether RRT under duty to make further enquires as to the truth of assertions in the letters - whether it was open for RRT to find that the letters were fabricated.
Migration Act 1958 (Cth), ss 420, 476(1)(a)
Eshutu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474
Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284
Velmurugu v Minister for Immigration and Ethnic Affairs (Full Federal Court, unreported, 5 November 1997)
JOHN MEADOWS AND SORNAWATHY MEADOWS v THE MINISTER
FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 153 OF 1997
TAMBERLIN J
SYDNEY (HEARD IN MELBOURNE)
12 DECEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
VG 153 of 1997
BETWEEN:
JOHN MEADOWS
FIRST APPLICANTSORNAWATHY MEADOWS
SECOND APPLICANTAND:
THE MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
TAMBERLIN J
DATE OF ORDER:
12 DECEMBER 1997
WHERE MADE:
SYDNEY (HEARD IN MELBOURNE)
THE COURT ORDERS THAT:
The application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
VG 153 of 1997
BETWEEN:
JOHN MEADOWS
FIRST APPLICANTSORNAWATHY MEADOWS
SECOND APPLICANTAND:
THE MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
TAMBERLIN J
DATE:
12 DECEMBER 1997
PLACE:
SYDNEY (HEARD IN MELBOURNE)
REASONS FOR JUDGMENT
The first and second applicants are citizens of Sri Lanka, who arrived in Australia as visitors on 19 December 1995.
On 21 February 1996 the second applicant applied for a protection visa, including her husband and child in the application. Before such a visa can be issued the Minister for Immigration and Multicultural Affairs must be satisfied that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”). The relevant definition of “refugee” in the Convention is:
“... a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ...”
On 6 September 1996 the first applicant submitted a separate application for a protection visa, seeking to advance specific claims for protection under the Convention. Both applications were processed by the Department of Immigration and Multicultural Affairs at the same time and were reviewed by the Refugee Review Tribunal (“the RRT”) on the basis that they were the one application in which each sought to include the other.
The delegate of the respondent, on 18 October 1996, determined that the applicants did not come within the definition of “refugee” because their fear of persecution on Convention grounds, if returned to Sri Lanka, was not well founded.
The applicants then applied to the RRT for review of the decision on 18 November 1996. The matter was heard on 19 February 1996. The RRT affirmed the delegate’s decision on 7 March 1997.
This application, being in respect of a judicially reviewable decision, as defined in s 475(1)(b) of the Migration Act 1958 (Cth) (“the Act”), is brought under Part 8 of the Act.
Although there are some procedural complications in this matter, it is not necessary to outline or deal with them. The matter has been conducted before me on the basis that all three applicants are similarly affected by the application and the determination of this Court.
Principal Issue
There were a number of grounds and matters raised in the application but the principal issue concerns the discussion and rejection of two letters tendered by the applicants from correspondents in Sri Lanka. The letters, dated 19 November 1996 (“the tenant’s letter”) and 20 December 1996 (“the sister’s letter”), were provided to the RRT together with a submission dated 11 February 1997, supported by statutory declarations of the applicants. The RRT concluded that the two letters were substantially false and reflected adversely on the credibility of the applicants.
The relevant parts of the two letters are set out below.
Background
The second applicant, Mrs Meadows, is a 41 year old citizen from Sri Lanka who arrived in Australia on 19 December 1995, accompanied by her husband, the first applicant, and their son.
The background circumstances and general submissions of the applicants are set out in the RRT decision as follows.
Mrs Meadows is a Christian Tamil who was born in the Jaffna District of Northern Province, Sri Lanka. During 1986, her family was forced to move from their house in Kilinochchi to nearby Parathan because of fierce fighting around the former area. However, the army soon took over Parathan and she and her family fled to Jaffna city, before returning to Kilinochchi. She lived there until 1987 when she married and moved to Colombo. After her marriage, she regularly returned to Kilinochchi to the house she had received as a dowry and in which her mother lived. On each trip she had to pass several check points held by both the Army and the Liberation Tigers for Tamil Eelam (“LTTE”).
Mrs Meadows claimed that she has not had cordial relations with the LTTE since about 1984. She claims that members of the LTTE stored arms in her house and demanded that her mother leave. She states that she could not sell her house because the LTTE were staying there and she still had to check on her mother. In 1990 the house was damaged by a bomb and her mother had to move to another place. After it had been partially repaired her mother returned to the house and she continued to make regular visits from Colombo. Mrs Meadows believes she was suspected by the LTTE as an informer because of her constant travels between Colombo and Jaffna.
Mrs Meadows claimed that she could not live in the Jaffna district, so she resided in Colombo in a house owned by her husband. She said that life there was difficult, particularly for Tamils who come from Jaffna, as they are all suspected of being terrorists. Mrs Meadows has had visitors from Jaffna and has always registered them. Although she has not endured any immediate difficulties as a result she believes that her house has been specifically noted by the police and on several occasions she has had her identification card checked. Once in 1994 the police forced their way into her house and searched for terrorists, holding her husband at gunpoint and threatening him. Afterwards, her husband required psychiatric and medical care for anxiety and fear. Mrs Meadows stated that “anybody who has been suspected of any connections with terrorist is immediately taken away. The extrajudicial executions are very common.” In November 1995, she was informed by police in Vavinuya that a nephew was coming to stay with her, but he went missing for a month. They later found out that he had been detained in a camp.
After a bomb explosion in Colombo in August 1995, Mrs Meadows claimed that many Tamils were arrested and executed. She stated that their adjacent Sinhalese neighbours stopped her child from playing with their children. On another occasion, when she went to pick her son up from school, it was suggested that she may be a Tamil terrorist capable of bombing the school. Shortly before coming to Australia she said she had a visit from members of the CID who asked her about her sister’s children.
The applicants have also had difficulties with Muslim neighbours. These difficulties were exacerbated when her husband ran over a teenage boy’s duck, and the latter accused him of doing it deliberately, threatening to report him as a terrorist. The police arrived and detained the boy, afterwards the boy’s family made threats. Mrs Meadows believes her Sinhalese and Muslim neighbours will take advantage of communal riots to obtain revenge on her and her husband. She says that the Sri Lankan authorities will not protect her and apply laws that benefit Sinhalese people but disadvantage Tamils.
Mrs Meadows claimed that the delegate had erred in relying on information from the Department of Foreign Affairs and Trade (“DFAT”) “and like material” in rejecting their application and submissions that they faced breaches of fundamental human rights if they returned to Colombo. Various other arguments were advanced that the delegate’s decision was unreasonable and unjustified, failed to take into account relevant considerations and was arrived at through an error of law.
In a submission of 15 November 1995 it was said that there had been further visits by the security forces to the applicants’ home since their arrival in Australia, particularly after a bomb blast at Dehiwela railway station. The submission also stated that Mrs Meadows’ sister-in-law had been arrested and detained on a trip from Colombo to Kilinochchi.
A later submission, dated 11 February 1997, contained, among other things, statutory declarations from the applicants. In addition to discussing previous claims and the findings of the delegate, Mrs Meadows claimed that she was a Jehovah’s Witness and was harassed when she preached her beliefs, with risks to her increasing at times of increased ethnic tension. She reiterated that friends and relatives from Jaffna had been frequent visitors at her house and that they may have been involved with the LTTE or suspected of such involvement. She also declared that her sister-in-law was in jail, supporting this claim with a letter from her sister. In addition, she submitted a letter (dated 19 November 1996) from the tenant of the family house in Colombo, in which the tenant claimed that she had twice been visited by the security forces who made allegations that the applicants were associated with the LTTE. On the second visit, the tenant was “severely reprimanded” by some young boys who wanted to know if the LTTE still came to the house.
Subsequently, Mrs Meadows provided a letter from the Australian Red Cross, dated 21 February 1997, confirming that her sister-in-law was in prison and “... received regular visits from her son and daughter who live in Colombo.” At the hearing, she stated that her sister-in-law was a regular visitor and that perhaps she had been transporting illegal goods to Jaffna. It was claimed that she and her husband are suspected of being involved with the LTTE and that the sister-in-law may have reinforced that suspicion by telling her interrogators that they were involved, in order to divert pressure on her.
Mr Meadows is a Christian Tamil who was born in Kegalle, to the north-east of Colombo. He moved to the capital with his family in 1965 and has spent all of his working life, since 1970, in that city. In recent years he has been a sales consultant, whilst previously he ran an import-export business and owned several vans which he rented out.
He claimed that he was constantly in fear of being attacked by Sinhalese vigilante groups or members of the Army or police forces because he is a Tamil and is believed to be a supporter of the LTTE. He said his family was forced to flee their area during the 1983 community riots and he was almost shot by police during a search for LTTE members at his house in 1994. He produced a letter from his family doctor stating that he was being treated for anxiety and phobia that seemed to have begun in late 1994 with the police raid on his house and the attendant threats. His problems are exacerbated because his wife is from Jaffna. He claims he is unable to seek protection from the State and that security forces act with impunity in their mistreatment of Tamils.
Like his wife, Mr Meadows is in fear of being attacked by Sinhalese or Muslim groups during periods of communal violence. He also fears terrorist attacks against the general public and the failure of State protection being extended to Tamils.
It was submitted that the applicants have experienced cumulative discrimination and persecution, commencing with the 1983 anti-Tamil riots and have then been victimised in the on-going war between Tamil separatists and government forces. Mrs Meadows’ house had been damaged and she was unable to return to Jaffna to live, despite her desire to do so. In compensation, she was forced to make regular visits but was harassed each time by both the LTTE and government security forces. It was further submitted that Mrs Meadows frequently had visitors from Jaffna and that this led to security officials suspecting that she and her husband are affiliated with the LTTE. In 1994 and 1995, they were the subject of search and interrogation directed personally at them. Since they have left, Mrs Meadows’ sister-in-law has been arrested as an LTTE supporter and, it is believed, has taken the opportunity of the applicants’ absence to direct attention away from herself towards the applicants.
The applicants submitted printed materials that referred to the ongoing war and to mistreatment of Tamils in Colombo. They expressed the fear that they would be arrested, detained and tortured if they returned to Colombo, on account of their suspected links with the LTTE. They also fear they will be attacked by Sinhalese and Muslim citizens at times when there is an inevitable rise in ethnic tension. In addition, there was reference to harassment as a Jehovah’s witness, although this was not raised at the hearing.
RRT Decision
The RRT after discussing the background to the applicants’ case, proceeded to consider the legislative framework and analyse the High Court judgment in Chan Ye Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, in some detail. The reasons point out that the relevant time for assessing refugee status is the time of the determination, which in this case is 7 March 1997. There is then reference to other decided cases and to the text of J C Hathaway, The Law of Refugee Status (1991), pp 104-105, in relation to the concept of persecution. A discussion of the application and the country specific material, including extracts from DFAT intelligence and documents, then follows.
In its reasons the RRT referred to the tenant’s letter from Sri Lanka dated 19 November 1996 which accompanied the submissions and statutory declarations dated 11 February 1996. The tenant’s letter reads:
“19.11.96
Dear John, Swarna, and Sharon,
We are keeping fine and we are quire anxious to know about your well being. The situation here is worsening. By the grace of God you have gone to Australia.
Recently the Government security forces and the anti L.T.T.E. organizations had been coming here quite often and had been harassing us inquiring about you.
On the 18th. of November at 10.00 pm in the night the Govt. security forces surrounded the house and pointing the gun at me, asked me to where John and Swarna are hiding. They said that you were L.T.T.E. spies and also inquired about Pushparanee Paramalingam. They further wanted to know as to how often Pushparanee comes here from Kilinochchi, how many young boys come with her and what they do when they come here. They searched the whole house and took away some files and letters. I told them that I am only tenant in this house and that I do not know any thing else. I showed them the Lease document and after that they left the house. They warned me not to give any accommodation to any one in the house without their permission.
Later, I heard that your sister-in-law Pushparanee was taken into custody at Anuradapura on suspicion that she is involved with the L.T.T.E. They kept her in a camp and subsequently she has been put in prison.
On the 19th. early morning at 2 o’clock some unidentified young men with guns came in a van and tortured me. They wanted all information about you and Pushparanee and wanted to know whether L.T.T.E boys still come to the house. They ransacked the whole house smashed some items and severely reprimanded us.
I cannot continue to live in your house under such harassment and persecution. Please make arrangements for someone else to live here.
Further more please do not come to Srilanka under any circumstances. The Govt. Security forces and organizations are waiting to take revenge on you.
Yours sincerely
Rathamani.”
The sister’s letter which also accompanied the submissions and declarations of 11 February 1997 reads:
“20.12.96
Dear John, Swarna, and Sharon,
How are you all getting on? We are surviving by the grace of God. You are lucky that you have gone to Australia. Hereafter do not think of coming back to Srilanka.
Heavy shelling and the atrocities by the “Boys” are quite common here. After the death of our brother and the arrest of our sister-in-law, mother is highly worried and is confined to the bed.
Last month I went to Vavunia to participate in the 31st. day religious rites and was held up in the refugee camp for about a month and then went to meet sister-in-law in prison and spoke to her. She is in an awful state. It appears that she had been subjected to a very cruel torture. She was not in a position to relate anything about it. She wanted me to tell you not to return to Srilanka under any circumstances and to take care of yourselves. The Army has extracted all information about you.
Furthermore it appears that by getting information from sister-in-law they have implicated you with the L.T.T.E. bomb explosions in Colombo. When ever possible people are fleeing the country. Brother’s death is also a mystery. Some in Vavunia say that he was shot by the army while others say that he was shot by the other groups. God only knows what the truth is.
There is danger to your life from both sides therefore think seriously before you do anything.
Sugi and children are keeping fine. Inform us about your health.
Your loving sister,
Ulaganathan Thilagawathie”
The RRT found that both letters were contrived. The RRT concluded that:
“In the light of the totality of the information before it, the Tribunal concludes that there is not a real chance in the foreseeable future that the Applicant, her husband or child face persecution on account their real or imputed political opinions, for reason of being Tamils or on account of their religion, either for those reasons alone or in combination. It is possible that they could encounter some discrimination based on race and/or religion, but the available information does not support a conclusion that such discrimination would approach a persecutory level of harm. While the government is not in a position to guarantee the safety of all innocent civilians and there is evidence of ongoing terrorist attacks directed at high profile public figures and public institutions and consequent roundups of Tamils, the three Applicants’ chances of persecution are no more than remote. The Tribunal concludes that they do not face a real chance of detention and serious mistreatment either at the airport on arrival or at a later time in Colombo.”
Section 420 - inquiry
The first matter advanced for the applicants is that the circumstances surrounding the two letters, and the information contained in them, gave rise to a duty on the part of the RRT to make further enquires and investigate the reliability and accuracy of the assertions made in the two letters. The nature of an obligation to undertake further enquiries was discussed by Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. This duty is said to arise from the provisions of s 420(2)(b) of the Act which requires the RRT to act according to substantial justice and the merits of the case. In reliance on the decision of the Full Court in Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474, the applicants submit that this provision establishes a “procedure” within the meaning of s 476(1)(a) of the Act and that breach of this procedural requirement is a ground for judicial review. In the circumstances of this case the applicants contend that the decision should be set aside because there has been a failure to follow the procedure.
It is submitted on behalf of the Minister that the decision in Eshetu is wrongly decided and should not be followed and it is noted that the decision is presently the subject of an application to the High Court for special leave to appeal which has not yet been heard.
On the present state of the authorities I am bound, as a single judge, by the Full Court majority decision in Eshetu.
The applicants also rely on the decision of the Full Federal Court in Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 at 291 for the proposition that there may be circumstances in which the RRT’s obligation to act according to substantial justice requires it to make enquires. In that case the Court did not find it necessary to decide whether an omission by a tribunal to make enquires constituted a failure to observe a procedure for the purposes of s 476(1)(a).
In Singh the Court rejected a submission that where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by a tribunal through official channels so as to create a duty to verify. While the Court considered that, in a particular case, a tribunal might be obliged to verify a document, there was no general rule to that effect In the circumstances of Singh’s case the Court concluded that Mr Singh had not shown that the failure to make enquires through official channels about the authenticity of the warrants involved a denial of substantial justice. This was because the RRT was given no information as to the provenance of the documents other than that they were forwarded with letters which the RRT was held entitled to conclude were not authentic. In addition, in that case there was nothing to indicate that it was ever suggested to the RRT that it should take any steps of its own to authenticate the documents in question.
In the present case the letters did not originate from any official source and it is difficult to see what additional information might have been gained from communicating with the authors of the letters. The suggestion is made on behalf of the applicants that enquires might have been made of or through the Red Cross as to the authenticity of the letters from the sister or tenant. The correspondence from the Red Cross simply confirmed that the sister-in-law was registered by them in being in a particular prison. The correspondence does not refer to any specific reason for her imprisonment. Nor is there any suggestion that the Red Cross would have been able to interview her or obtain information as to the accuracy of the assertions made in the sister’s letter.
The conclusion of the RRT based on the reasons which it set out was that the submissions and evidence were falsely tailored to exploit the fact of the sister-in-law’s imprisonment by falsely suggesting that the applicants were implicated in LTTE activities. The RRT did not accept those submissions but acknowledged that it was an accepted fact that the sister-in-law was in prison.
In my view, the circumstances did not generate any duty on the part of the RRT to investigate or inquire further as to the truth of the assertions made in the letters. Ultimately, even if the Red Cross had made further enquires of the sister-in-law there is no evidence what might have been produced by these enquires. There was no suggestion of any other or further reliable sources from which accurate information could have been obtained. Moreover, it is not apparent from the material that the Red Cross would have been able to obtain any relevant objective information. Nor is it apparent that the Red Cross, being primarily concerned with humanitarian functions, and acting in a politically neutral capacity, is either equipped or able to act in an investigatory capacity in such a way as might enable it to secure more detailed, accurate or reliable information.
For the above reasons I do not accept that there is any substance in the submission that the circumstances generated a need for further enquiry in order to comply with the requirements of s 420 and s 476(1)(a) of the Act.
Credibility
The applicants submit that there was no justification, and that it was not open to the RRT, to use the letters from the tenant and sister to support a finding that the letters were fabricated and falsely tailored to exploit the admitted fact of the sister-in-law’s imprisonment by falsely suggesting that the applicants were implicated in LTTE activities. This submission is developed in several ways. First, it is said that the reasoning of the RRT was illogical. The first illogicality is said to be that the RRT refers to an allegation of a second visit by the CID (the police) in late 1995 and concludes that this was “manufactured”.
The RRT saw the following circumstances as important.
In answer to a question in her application for a protection visa as to why she left Sri Lanka Mrs Meadows referred to a telephone inquiry from the police while she was in Sri Lanka as to whether she was prepared to accept responsibility for a boy who claimed to be a nephew. The boy never arrived at the home and it was later learnt that he had gone missing. Mrs Meadows subsequently learnt that he had been detained and released a few months later. However, in her statutory declaration, sworn on 10 February 1997, she refers to a visit to her house by the police but says that it was not threatening. She also referred to subsequent visits by the police which alarmed her and her husband and which she said indicated that she would face danger. No reference was made to any visit or visits by the police in or around or subsequent to November 1995 by Mrs Meadows in her application for a protection visa which was submitted on 21 February 1996. The RRT considered this omission significant.
In my view, this discrepancy, together with the other findings and matters adverted to in the reasons, support the RRT’s conclusion that the claim of the subsequent visit by the police was belatedly manufactured. This finding was also seen by the RRT to impact on the credibility of Mr Meadows. He agreed with the contents of her statutory declaration of 10 February 1997. Accordingly, I do not consider the applicants have demonstrated that there is any logical error or inconsistency in making this finding when the reasons are read fairly and as a whole.
A further alleged defect in the RRT reasoning is said to reside in the sequence of events set out in the tenant’s letter of 19 November 1996. This largely depends on an interpretation of the letter. The letter indicates that government security forces surrounded the house on 18 November 1996 at 10 pm. There were inquiries and searches. The letter then says that later (presumably that night) the tenant heard that the sister-in-law was taken into custody. The letter then goes on to say that on 19 November in the early morning, at about 2 am, a group of unidentified young men with guns came in a van and tortured the tenant, seeking information about Mrs Meadows and the sister. The RRT concluded that it was improbable, and did not accept, that between the first and second visits on the evening of the 18 November and the morning of 19 November that the author found out that the sister-in-law had been detained and transferred to a prison. They treated the assertion with suspicion. This is largely a question of interpretation. In the circumstances I consider this interpretation was open to the RRT and that it was also open to the RRT to form the view, in the light of the other matters discussed in its reasons, that the letter from the tenant was contrived to assist the applicants. The only factual statement in that letter was that Mrs Meadows’ sister-in-law had been imprisoned, although the reasons for such imprisonment were not spelt out. The RRT attached importance to the fact that the tenant’s letter did not disclose what took place between the visit by the security forces and the unidentified young men with guns. Nor were any circumstances disclosed as to how the tenant learnt of the imprisonment of the sister-in-law.
A third instance of illogical reasoning is said to relate to the sister’s letter of 20 December 1996. The RRT found that letter to be false when it suggested that the applicants were implicated in LTTE activity. The applicants had given no evidence that they had ever in fact been involved in pro-LTTE activities. The letter, on the other hand, particularly in the fourth paragraph suggests that information had been obtained from the imprisoned sister-in-law which implicated the applicants with the LTTE bomb explosions in Colombo. The implication which the RRT saw implicit in this statement was that the applicants had in fact been involved with the LTTE bomb explosions and that this information had been given by the sister-in-law to the Army with the result that it would be dangerous for the applicants to return to Sri Lanka. The inconsistency between the assertions in the letter and the position taken by the applicants, no doubt coupled with other matters referred to in the decision, led the RRT to conclude that the letter was falsely tailored in this respect. It rejected the evidence of the applicants in their declarations and submissions in relation to these matters.
In my view the applicants have not shown any error of law on the part of the RRT in refusing to accept either letter. It was also open to the RRT on the evidence to reach the conclusion that the applicants had “belatedly” manufactured the claim that there was a police visit in late 1995.
It is clear that the letters were submitted to the RRT by the applicants in an attempt to substantiate their case. It was open to the RRT to treat the letters as lacking credibility and indeed treat them as adversely reflecting on the credit of the applicants. In forming the view that the letters bore on the credibility of the applicants it could not be suggested that it was incumbent on the RRT to refer the matter back to the applicants seeking further commentary from them as to whether the letters should be so treated.
Other matters
The applicants’ contentions of fact and law also raise a number of other matters but these were not developed in argument. In the interest of completeness I should briefly refer to them and indicate my reasons for dismissing them. The first of these additional matters was the suggestion that the RRT decision involved errors of law in failing to correctly apply the real chance of persecution test and in applying a more onerous test. The RRT accurately stated the applicable principles in the reasons for decision, especially the discussion of the High Court in relation to what constitutes “a real chance” of persecution. There is nothing in the decision, which has been pointed to, which indicates that the RRT did not in fact apply these principles to which it had expressly adverted.
The second matter was that the RRT decision involved an error of law arising from an incorrect application of the requirement that substantial justice be accorded to the applicants. In Velmurugu v Minister for Immigration and Ethnic Affairs (Full Federal Court, unreported, 5 November 1997) Davies J, with whom Burchett and Whitlam JJ agreed, pointed out that the requirements of s 420(2)(b) are not limited to matters of procedure. That provision lays down a standard according to which the RRT must decide a case. The substantive requirements of subs (2)(b) therefore form part of the “applicable law” which may found a challenge under s 476(1)(e) if there has been an incorrect interpretation or application of the subsection to the facts as found. There is no substance in the suggestion that the RRT’s decision involved an error of law in that it involved an incorrect interpretation or application of the requirements that substantial justice be accorded to the applicants. The applicants have not pointed to any specific error of law, apart from those matters which have been raised and considered earlier, in support of this contention.
The remaining matters which were raised are really in the nature of challenges to findings of fact and credibility, which in my view, were open to the RRT on the material before it.
Accordingly for the above reasons, the application is dismissed. I make no order as to costs.
I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin
Associate:
Dated: 12 December 1997
Counsel for the Applicant: Mr R Lancey Solicitor for the Applicant: Wisewoulds Counsel for the Respondent: Mr P R D Gray Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 November 1997 Date of Judgment: 12 December 1997
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