MZWBW v Minister for Immigration - [2004] FMCA 1058

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWBW v MINISTER FOR IMMIGRATION

[2004] FMCA1058

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa.

Migration Act 1958 (Cth)

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Paramanathan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28

SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80

VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82

Applicant:

MZWBW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 5 of 2004

Judgment of:

Riethmuller FM

Hearing dates:

9 & 14 December 2004

Delivered at:

Melbourne

Delivered on:

20 December 2004

REPRESENTATION

Counsel for the Applicant:

Mr Krohn

Solicitors for the Applicant:

Ravi James

Counsel for the Respondent:

Dr Donaghue

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The applicant’s application be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 5 of 2004

MZWBW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Sri Lanka who arrived in Australia on

5 March 1997. On 14 February 2002 the applicant lodged an application for a protection visa which was determined by a delegate of the Minister on 13 May 2002. The Minister’s delegate refused to grant a protection visa.
On 30 May 2002 the applicant sought a review of that decision in the Refugee Review Tribunal (‘the RRT’). The RRT heard the applicant and made a decision in the matter on 24 November 2003. The applicant seeks judicial review of that decision.
The applicant filed an amended application pursuant to section 39B of the Judiciary Act on 26 May 2004 which reflected the refinement of the applicant’s contentions of fact and law filed on 19 May 2004.
The matter came on for hearing on 9 December at which time the applicant’s original Counsel withdrew and the application was adjourned for hearing on 14 December 2004. The applicant filed supplementary contentions of fact and law on 13 December 2004.
The applicant abandoned the submissions based upon his previous contentions as contained in paragraph 29 to 33 of those contentions.
The applicant’s case before the RRT was that in October 1990 he had joined the ‘Guard Battalion’ and was trained at an army camp. He said that he later deserted from the Guard Battalion which was regarded by the Sri Lankan Army as being equivalent from deserting from the army. He said that he deserted the Guard Battalion as a result of being pressured to mistreat local Tamils in his area. He says that in 1991 he was told to beat a Tamil known to him and when he refused he was beaten and the Tamil man was violently beaten by a Sinahlese soldier. He said that this incident occurred in March or April of 1991. In October 1991 he was shot in the leg during a battle and says he later escaped from hospital. He says that his father obtained a false passport for him with a two week visa for Malaysia and that in December 1992 he went to Malaysia.
Following the change of government in Sri Lanka in August 1994 he returned to Sri Lanka in September 1994 and assisted a cousin’s electoral campaign in the presidential elections held in November 1994.
He said to the RRT that in May 1995 he heard that investigation officers were looking for people who had been with the Guard Battalion and were also involved with campaign activity during the presidential campaign, as a result of which he went into hiding as he feared he would be arrested and tortured. He says that he hid in various places until March 1997 when he left Sri Lanka.
The applicants claim to the RRT was that he had a well founded fear of persecution as a result of his desertion from the Guard Battalion, which occurred as a result of his political opinion, namely his desire not to participate in a beating of a Tamil man.
The RRT did not accept the applicant’s version of events and declined to grant a protection visa. The applicant in his case in the Federal Magistrates Court stated that there were two critical claims which gave rise to his entitlement to a protection visa. The first is that he may face the same punishment as an army deserter as a result of his desertion from the Guard Battalion and the second is that as he assisted a Muslim in a political campaign after leaving the Guard Battalion he was the subject of persecution.
The applicant relied upon three grounds for judicial review at the hearing:
a)An alleged failure on the part of the RRT to take account of a relevant consideration, namely the applicant’s evidence that he received 25 days training in the Guard Battalion.
b)An alleged failure on the part of the RRT to allow the applicant to respond to country information relied upon in the RRT’s decision said to be contrary to section 424a of the Migration Act and the principles of procedural fairness. This reason relates to two separate items of country information, the first referred to at page 12 of the decision and the second referred to at page 14 of the decision.
c)An allegation that the RRT’s findings were not available on the evidence.
The applicant points out that despite the allegations that he received

25 days training in the Guard Battalion being clearly set out in a statutory declaration that he lodged with the RRT (see court book at page 56), the RRT did not refer to this evidence in its decision. It is clear that there is no reference to the amount of training that the applicant received in the RRT’s decision.
The applicant, in his statutory declaration of 20 February 1998 said as follows:
3. I therefore joined the Guard Battalion with much enthusiasm and determination on 30 October 1990. On the day after I joined the Guard Battalion I was sent to an army camp, Talladi, to be trained. Talladi Army Camp is the main camp for the Mannar district, and is situated in one of the most war-torn areas in the Northern Province of Sri Lanka. The training lasted for about 10 days and consisted mainly of training in the use of weapons. There were several hundred Sinhalese soldiers at Talladi Army Camp and there had been no Muslims there before I arrived with about 150 other Muslims. During my training at Talladi Army Camp, the training corporal, Weerawardana, asked me if I had been trained by any other armed group because I had been performing so well in my training. When I said that I had not received any military training before, he asked me if I had had nay other sort of link with any other armed group. He seemed to be satisfied when I told him that I had had no links with any armed group. I was then sent to do another 15 days of training on different weapons at Erukkalampity Army Camp on Mannar Island. There were more than 75 Sinhalese soldiers and about 30 Muslims at this camp.
The RRT findings, which this evidence potentially impacts upon, are at pages 12 to 13 of the RRT’s decision in the following terms:
The Tribunal was not able to establish from country information that desertion from the Battalion was regarded by the government – or SLA – in the same way as desertion from the SLA. The country information available, which the Tribunal quoted to the applicant (DFAT cable CL819 of 11 February (see above)), indicated that Tamil Muslims serving in auxiliary units were not integrated members of the SLA and “desertion” from those units was not regarded in the same way. The Tribunal accepts that the applicant was trying to distinguish between the “Guard Battalion” and other home guard units. The Tribunal gave the applicant additional time after the hearing to provide documentary evidence about the Guard Battalion but the applicant did not provide any documentation. The Tribunal carried out its own search after the hearing and was able to find one reference to a Guard Battalion. In 1992, Human Rights Watch reported an item from the Sunday Times of Sri Lanka which announced that the army was stepping up recruitment fro the National Guards Battalion which was described as “a volunteer force which normally receives only five days’ training” with a view to deploying it in eastern Sri Lanka. The reference was in an article titled Human Rights Accountability in Sri Lanka 8 1992, Human Rights Watch…Accessed 7 October 2003. This report indicates that the battalion was a volunteer force. With only five days training normally given to volunteers the Tribunal does not accept that members of the battalion were integrated into the SLA in the sense claimed by the applicant. Further, the evidence given by the witness that the unit was disorganised gives weight to the view that the battalion was not an integrated part of the SLA. The witness’s account of the many desertions from the battalion and the lost weapons in his undated written statement in support of the applicant leads the Tribunal to conclude that these desertions and weapons loss were a cause of concern to the SLA. But it does not follow that these desertions were treated legally in the same way as desertions from the SLA. The Tribunal finds that the applicant is not being sought by the SLA as a deserter.
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at paragraph’s 46 and 47 the following was stated:
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
In this case the RRT has not made a specific finding as to whether or not the applicant undertook 5 or 25 days of training. The findings that the RRT has made are not inconsistent with the proposition that the applicant may have received 25 days training as he outlined in his statutory declaration. The substance of the finding by the RRT on this point was that it did not accept the version of the events by the applicant as to the status of the Guards Battalion with respect to the Sri Lankan army. The RRT relied heavily upon the absence of information in documentary form (in the sense of human rights watch reports, country information and the like). Whilst the RRT referred to 5 days training being ‘normally given to volunteers’, this is information from a human rights watch report describing the battalion and used by the RRT in finding that the battalion, as a group, was not strongly integrated into the army. Significantly the RRT also had direct evidence from a witness, as is recounted by the RRT in its decision on this issue.
The RRT is only required to determine the substantive issues and not required to recount every piece of evidence and every allegation. In Vargas v Minister for Immigration and Multicultural Affairs[2001] FCA 1025 at [28] Kenny J said:
The Tribunal is not, however, obliged to refer to every submission and each item of evidence relied upon by an applicant: see Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 593 per Kirby J.
Indeed, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at pages 347 to 348 the High Court said:
73. It is, of course, essential to begin by considering the statutory scheme as a whole. To that extent the submission is right. On analysis, however, the asserted duty to make findings may be simply another way of expressing the well-known duty to take account of all relevant considerations. The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider. In that regard it is important to recall, as Brennan J said in Attorney-General (NSW) v Quin:
"The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison: `It is, emphatically, the province and duty of the judicial department to say what the law is.' The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
74. This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.
The High Court went on to apply this principal with respect to the failure of a tribunal to refer to one of three home invasions saying:
92. The highest point Ms Yusuf's contention reaches, if it is accepted that there were three attacks, is that the Tribunal made an error of fact in concluding, as it did, that there were only two. That does not establish any of the grounds in s 476 or any other ground for judicial review. It follows that the Minister's appeal should be allowed, the orders of the Full Court of the Federal Court save as to costs be set aside, the appeal to that Court allowed and in lieu the application for review dismissed…
In the circumstances of this case I am not satisfied that the applicant has shown the RRT has failed to take account of a relevant consideration in the context of this case. Rather, the RRT has clearly turned its mind to the relevant considerations, but has simply failed to recount one of the non-essential items of evidence that is arguably relevant to this particular issue. This is a finding of fact for the RRT and not a topic for judicial review.
The RRT considered the central issue that was relevant for this part of the applicant’s claim and found against him on the basis of evidence available to the RRT. It is not for the court to undertake a merits review or form a view as to whether or not this court would make the same findings of fact that the RRT made. In the context of the decision in this case I am not persuaded that the particular factual question (the number of days of training the applicant received) was an integral element of the claim which required a specific finding of fact
The second issue relates to how the RRT dealt with the effect of country information.
The applicant relied upon two items of country information referred to by the RRT. The first is set out in the quote by the RRT above. The second is contained at page 14 of the decision which is in the following terms:
The applicant also claimed that security officials came looking for people who had been in the Guard Battalion who were involved in the presidential election campaign. They had specifically asked about the applicant. On hearing this he claimed that he went into hiding again. The Tribunal has been given no documentary evidence in support of the applicant’s claims that the government pursued former Guard Battalion political supporters of independent Muslim candidates. Country information available on Sri Lanka states that elections are open and does not claim misuse of security forces against political parties or their supporters – see United States Department of State Sri Lankan Country Report on Human Rights Practices for 1996 released by the Bureau of Democracy, Human Rights, and Labor, January 30, 1997.
Sri Lanka is a longstanding democratic republic with an active multiparty system. Constitutional power is shared between the popularly elected President and the 225-member Parliament. President Chandrika Kimaratunga leads the People’s Alliance (PA), a coalition of parties, which holds a single seat majority in parliament. Both the Parliament and the President were elected in free and fair elections in 1994. The Government respects constitutional provisions for an independent judiciary.
For this reason the Tribunal does not accept the applicants claims relating to this period. The applicant claimed he was being sought by security officials; he claimed that two friends from the Home Guard had disappeared; that three further members of the Home Guard who had been involved in politics had been killed; that a cousin who had hidden him was tortured by the army; and that his father had been threatened. The Tribunal does not accept that security forces were looking for the applicant because of his political campaigning for his cousin. For this reason the Tribunal does not accept that the applicant had to resume his hiding from the authorities and des not accept that he had to flee Sri Lanka to escape them. The claims are not consistent with country information and are not credible.
The applicant relied upon the effect of the section 424A(1) which states:
Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.

The respondent relied upon the effect of section 424A(3) which provides as follows:
This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
In addition, the applicant pointed out that this case arose prior to the impact of s.422b of the Migration Act and that even if I were to form the view that the RRT’s conduct was within s.424a, I must still determine whether or not the RRT has breached the principles of procedural fairness in such a way as to give rise to a basis for judicial review.
This case has had a considerable history. The matter was first the subject of a protection visa application by the applicant on 30 June 1997. This was refused on 16 July 1997 by the Minister’s delegate and then reviewed by the RRT on 25 March 1998. The RRT’s decision on that occasion was the subject of an application to the Federal Court. The Minister conceded that the application would be successful on a basis unconnected with this application. The applicant submitted the current application on 14 February 2002.
The central issue that the RRT referred to in both the applications was the absence of country information or other documentary information that was consistent with or provided any support for the claims of the applicant. This substantive issue was raised with the applicant at the hearing, as appears from the hearing transcript which provides as follows:
MR REESE: I won’t sort of go back over the ground that we’ve already covered. You’ll be familiar with the information that the delegate quoted in her decision about the Home Guard. You have offered a clarification on that point. I’ll make my own investigation on this, but if you can provide any information that documents what you’ve said about the Home Battalion, then that will be useful…
MR REESE: Yes, okay. I didn’t feel that this clarified it sort of satisfactorily from my own point of view when I looked at the documentation. If there’s anything that you can provide that establishes clearly that the Home Guard or the Home Battalion was formerly part of the armed forces and was – the arrangements regulations for that organisation were the same as for the armed forces, then that would be useful…
MR REESE: No. I think the issue that we’re talking about is whether leaving the Home Battalion or the Home Guard ---
WITNESS: Guard Battalion.
MR REESE: Leaving the Guard Battalion is seen by the armed forces in exactly the same way that leaving the armed forces would be. In other words, if a person leaves the Guard Battalion, is that the same as deserting the armed forces?
INTERPRETER: It is different there. Deserters of Guard Battalion is worse than the people who leave the army. The reason is because the people who came as the army or soldier in Sri Lankan army, they cam from predominantly Singhalese area, and they do not know the area, and in our case the Guard Battalion was formed form the local youth who have the knowledge of the local area and who have the knowledge of the LTTE members or LTTE cadre. So our role in the war was so important that when they train us and when they visit us, there is a presumption from the part of the government that we are more dangerous and we are up to something. That’s why they left (indistinct) so our situation is worse.
MR REESE: I’ve recorded what you said, but if it’s possible to provide documentation that supports your claim, that would be helpful. As I say, we have not been able to identify any information of that sort.
In order to determine whether or not the RRT has accorded the applicant procedural fairness with respect to the country information it is important to have regard to the manner in which the hearing is conducted as is set out in the quotes above from the transcript, and the other documents that appear in the file to which the RRT had access. Importantly, at page 34 of the court book, a statement from the applicant sets out the applicant’s extensive submissions referring to country information before the RRT on the previous occasion that the RRT considered the applicant’s case, with the applicant stating the following at paragraph’s 14 and 15:
14. It was stated on my behalf in the submissions dated 16 March 1998 by Victorian Legal Aid solicitor that:
i. There were numerous active “Jhihads” in the north of Sri Lanka between 1985 and the early 1990’s. Many members of the Jhihad in my district joined the Homeguards and the “Guard Battalion”. Upon joining the Guard Battalion I understood that it operated as discreet unit alongside the army but was in practice a part of the army. It’s members were trained by the army and were under the command of the army that I recalled that the Guards Battalion officially became part of the army in late 1951 (2.1.2). The Guard of Battalion did not exercise mere limited protection functions. As a member of the Guard Battalion, I was trained to fight alongside members of the army and was infact engaged in two violent battles. During one of these battles, I sustained a gunshot wound to my leg (2.1.3)
ii. The country information provided by the Tribunal on 12 March 1998 contained a segment titled Special Muslim Protection Units. This said, “Homeguard” forces have been set up by the Sri Lankan government under the Mobilisation and Supplementary Forces Act 1985, which provides for the establishment of a National Auxiliary force, the Homeguards and a Civil Defence Force and allows for the conscription of all sections of the population into these forces (Amnesty International June 1992). Homeguards function under the auspices of the Ministry of Internal Security (IRBDC 28.08.89). Both Sinhalese and Muslim Homeguard units have been established in the eastern provinces to protect citizens from attacks by the LTTE
iii. The DFAT in cable number 819 of 11 February 1988 indicated:
“Homeguards provide extra security to their own villages where police numbers are inadequate. They are given basic arms training and paid a daily wage by the police to protect their villages from LTTE infiltration and attacks in areas known as border areas-close to areas of LTTE activity. They supplement the regular police force………….
The issue of desertion does not arise in relation to Homeguards, as they are not part of the regular security forces. Homeguards are not and can not be targets of arrest by military police for desertion. The reality is that in border villages, most civilians are involved in the protection of their village.”
15. The DFAT report made comments concerning people who were positively identified as Homeguards and those Homeguards who were working with the police in border areas. It indicated the issue of desertion did not arise in relation to Homeguards as they are not part of a regular security force. I do not agree with that report as many Homeguards have been hunted down by the army and the LTTE. There are Homeguards that worked with the army as well like in our battalion. The LTTE saw them as part of the Sri Lankan army and did not make any distinction about them.
That statement also attached the statement of the witness referred to by the RRT in its decision on this occasion (see the court book at page 39).
At page 51 of the court book a further statement in support of the applicant’s case specifically deals with DFAT Cable CL819 stating:
2.3DFAT Cable number CL819 dated 11 February 1998
2.3.1This Cable states that the Home Guards are paid by the police, supplement the regular police force and are controlled by the police; and that it follows that desertion is not an issue in respect of Home Guards. Further, that there has not been a separate Muslim unit in the army; that he army is “always looking for deserters…and the government is frequently offering amnesties to relieve the constant problem of insufficient manpower”; and that ‘[i]t is not true that Muslims serving in the auxiliary forces are “given the most dangerous jobs and are discriminated against””. Finally, that “[w]e are not aware of former Home Guards coalescing around independent Muslim politicians.”
2.3.2[The applicant’s] activities did not supplement those of the regular police force; he was subject to orders of army officers; the camps at which he was based were army camps; he engaged in two military battles; and he was not permitted to voluntarily leave his post after he was wounded in battle. He maintains that he and numerous friends from his home town jointed the Guard Battalion, a discrete and entirely Muslim unit in the army, in October 1990 (see paragraph 2.1.2).
2.3.3[The applicant] is aware that the arm is always looking for deserters and that there is a penalty of three years imprisonment for deserters who do not rejoin the army under an amnesty. It has been reported that 10,000 out of a total of 24,000 army deserters have returned to the army as a result of six amnesties which have been offered to army deserters since 1995. The latest amnesty deadline expired on 20 February 1998 and 600 deserters had returned to the army by 13 February 1998: report from Sri Lankan Net News dated 14 February 1998. [The applicant] is adamant that if he were to respond to an amnesty offer, or be arrested for desertion that he would be killed by agents of the Sri Lankan government; and that he is not in the same position as army deserters in general because of the political profile he developed while advocating the rights of the Muslims of Northern Sri Lanka.
2.3.4The cable does not provide any basis for the assertion that Muslims “serving in the auxiliary forces” have not suffered discrimination relative to Sinhalese army members. It also baldly asserts that no former Home Guards have associated with Muslim politicians. [The applicant] vehemently disagrees with both of these assertions and is able to give a detailed and graphic account of the discrimination that he suffered as a Muslim in the Guard Battalion.
2.4DFAT Cable number CL824 dated 20 February 1998
2.4.1I refer to and repeat my comments in response to DFAT Cable number CL439 dated 30 December 1996.
The matter was also the subject of extensive discussion by the Minister’s delegate as appears at pages 140 to 141 of the court book (re-producing pages 7 and 8 of the delegate’s decision).
There is no doubt that the issue, which in substance was the RRT’s reluctance to accept the applicant’s evidence in the absence of any supporting country information, has been an issue well known to the parties throughout the visa application and hearing processes.
The reliance upon the country information by the RRT was reliance in the sense of relying upon the absence of any material in the country information to support the applicant’s claims. Indeed, it is arguable that the RRT simply did not accept that the applicant in the absence of supporting information, and that there was no supporting information contained in the documents and therefore the RRT did not rely upon them as such. Such an argument however appears to be somewhat academic. The RRT clearly relied upon the content of the reports, even though the reliance was specifically with respect to the absence of supporting information contained within those reports in circumstances where the RRT would have expected supporting information to have been recounted.
In Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 Merkel and Hely JJ in their joint judgement said (at [138]):
…we are also of the view that the reference in s.424A(3)(a) to the class of persons is not another criterion to be met but, as is the case with s.57(1)(b), is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant) falling within it: see VHAP at [14].
In VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82, Gyles, Conti and Allsop JJ in their joint judgement followed the authority in NAMW saying (at [14]):
In our opinion that argument must be rejected. The reference to the class of persons in subs.424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it. This construction of the subsection is consistent with the decisions in NANM and NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99 at [17] and VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186 75 ALD 609 at [50] per Kenny J and [71] per Downes J with which we agree.
Once the nature of the reliance of the RRT upon the material is clarified it appears clear that the material falls within the exception of section 424A(3).
It is also difficult to conclude that the applicant was denied procedural fairness in the context of the hearing and other documents in this case. It has been abundantly clear throughout that the RRT were sceptical of the applicant’s version of events with respect to his association with the Sri Lankan military and the need for some supporting information before the RRT would accept the applicant’s version of events. The substance of the concerns appears to have been clearly raised with the applicant in the transcript where the RRT member asked for supporting documents and advised that he had been unable to identify any information of that sort.
If it is the case that the RRT have breached the rules of procedural fairness or section 424A of the Act, I must then consider whether this has denied the applicant a possibly successful outcome. See for example, the comments of Gray J in Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380:
34 The Tribunal did not comply with s 424A(1) in relation to the Agence France Presse items. It therefore failed to observe a procedure required by the Migration Act to be observed in connection with the making of its decision. The ground specified in s 476(1)(a) of the Migration Act is made out. It does not follow, however, that the applicant is entitled to an order setting aside the decision of the Tribunal. Such an order will only be made if the failure to observe a required procedure has denied the applicant the possibility of a successful outcome of his application for review by the Tribunal of the decision of the delegate of the Minister. See Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 at [42] per Merkel J, where his Honour referred to Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 164 - 166; Abriel v Australian Guarantee Corporation [2001] FCA 165 at [18] and Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 301 at [57]. In Al Shamry at [21], Ryan and Conti JJ expressed their agreement with Merkel J on this point. Reference might also be made to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 at [4] per Gleeson CJ, [80] per Gaudron and Gummow JJ, [87] and [104] per McHugh J, [131] - [133] per Kirby J and [211] per Callinan J. The question therefore is whether the Tribunal's failure to observe the procedure required by s 424A of the Migration Act in relation to the Agence France Presse material was so significant as to deny the applicant the possibility of a successful outcome of his application.
I am not satisfied that in this case the discretion to provide a remedy by way of judicial review ought to be exercised given that the issue was extensively discussed both in documents and at the hearing before the RRT, and considered in some detail by the RRT. It does not appear to me that the proceedings could have possibly reached a different outcome as there is no further information that the applicant would seek to place before the RRT, save to draw their attention, yet again, to the amount of training that he says he undertook. This distinguishes this case from cases such as Baig where Gray J found that:
35 It is clear that the absence of a by-election was not the only ground on which the Tribunal rejected the applicant's story. As I have said, it did so for a number of reasons based on the applicant's credibility, inconsistencies in his evidence and its view of the implausibility of his story. It must be accepted, however, that the only hard evidence on which the Tribunal relied to refute an element of the applicant's case was the Agence France Presse items. The Tribunal relied on the absence of any record of a by-election in any of the material it searched. It was entitled to rely on the absence of material, but it is necessary to recognise that such reliance carries only so much weight as the competence of the searches allows. An absence of evidence is not itself hard evidence. In the Agence France Presse items, the Tribunal believed it had specific evidence that there was not, on 15 April 1997, a by-election for a National Assembly constituency close to the applicant's home. If it had given the applicant an opportunity to comment on the Agence France Presse material, it is possible that the applicant might have been able to point out that the second item left open the possibility that the by-election he claimed to have participated in had taken place. The Tribunal might then have taken a more benevolent view of the applicant's credibility if it had found in his favour on this issue. In turn, that view might have affected the view that the Tribunal took on the applicant's credibility in other respects.
The final matter raised by the applicant was the suggestion that before the RRT could make a positive finding it ought to have positive country information available to it. This does not flow logically or legally from the material that the RRT had before it. The absence of any confirmation in the wide variety of country material before the RRT is, in proceedings before the RRT, at least circumstantial evidence that events or practices being considered are not occurring within their country. It is trite to say that it is unrealistic to expect that reports by a state department or human right watches would really contain clear statements that every abhorrent behaviour by political regimes was either being engaged in or not being engaged in. The reports clearly refer to the behaviours that are being engaged in, and to a lesser extent significant events and behaviours which were previously, but are no-longer, being engaged in by the regime. There is sufficient evidence before the RRT to support its decision, at least in the sense required for judicial review purposes. I make these findings mindful of the High Court’s comments in the case of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 where Brennan CJ, Toohey, McHugh and Gummo JJ said:
The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
and the comments of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30:
errors are to be identified by looking at the statutory context. Whatever may be the position under other statutory schemes (such as, perhaps, the review of taxation decisions considered in Bellinz), equality of treatment is not an essential pre-condition to jurisdiction under the Act. In the context of judicial review of decisions under the Act it is well nigh impossible to see how any such pre-condition could be implied in light of s 474 of the Act. Consequently, no jurisdictional error arises simply because the Tribunal, or a delegate, reaches a different result in a similar case.

In the circumstances I therefore dismiss the application.
As costs usually follow the event, and I am unable to deliver this judgement personally, I propose ordering the applicant to pay the respondents costs fixed at $6,500.00 with liberty to the parties to apply for a different costs order within 21 days if they so choose.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: