MZWFH v Minister for Immigration
[2005] FMCA 44
•27 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWFH v MINISTER FOR IMMIGRATION | [2005] FMCA 44 |
| MIGRATION – Refugee Review Tribunal – unrepresented person – need to ensure appropriate process and opportunity to respond – discrete findings supporting Tribunal’s determination. |
Migration Act 1958, ss.36, 65, 424A, 424A(1), 424A(3)
Svecs v Minister for Immigration & Multicultural Affairs [1999] FCA 1507
A & Others v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 545
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262
Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 333
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minister for Immigration and Multicultural Affairs v Thiyaragah (2000) 199 CLR 343
Minister for Immigration & Multicultural Affairs v X [2001] FCA 858
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
| Applicant: | MZWFH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 390 of 2004 |
| Delivered on: | 27 January 2005 |
| Delivered at: | Melbourne |
| Hearing date: | 15 November 2004 |
| Judgment of: | O’Dwyer FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Ritchie |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 21 April 2004, as amended, be dismissed.
The Applicant pay the costs of the Respondent fixed in the sum of $7,500.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 390 of 2004
| MZWFH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a citizen of Sri Lanka. He arrived in Australia on
21 August 1998. He made a proper application (having earlier made an improper one) for a protection visa on 26 June 2001. By a decision dated 11 February 2002 the Respondent’s delegate refused the application. The delegate’s decision was reviewed by the Refugee Review Tribunal (the Tribunal) on 4 December 2003. Its decision delivered on 19 March 2004 affirmed the decision of the delegate.This proceeding comes before the Court on the Applicant’s application filed on 21 April 2004 seeking a review of the Tribunal’s decision. The Applicant specified two grounds, after amending his application at the hearing, in support of his contention that the Tribunal had fallen into jurisdictional error in its assessment of the Applicant’s claims under the Refugee Convention and Protocol. Those grounds are:
(a)The Tribunal failed to directly put to the Applicant that the letter from a Sri Lankan politician (the politician’s letter) requiring the Applicant to report for military duty was contrived and thereby failed to accord the Applicant natural justice; and
(b)The Tribunal failed to understand the deeper significance of the Applicant’s claim. It failed to discuss the relevant country information with the Applicant and how that information was likely to be the reason or part of the reason for the refusal of the application. Consequently, the Tribunal failed to undertake its mandated task of the correct interpretation of ss.36, 65 and 424A of the Migration Act and the regulations applicable thereto.
Background
The Applicant claims that, together with a friend, he witnessed members of the Liberation Tigers of Tamil Eelam (“LTTE”) unloading detonators and wires from a truck and had informed the police. Consequently, the police made arrests and a LTTE network was exposed and prosecuted. Terms of imprisonment were imposed on those arrested. The Applicant and his friend were asked to give evidence. The friend did, but the Applicant declined. Shortly after the court hearing alleged LTTE members came to the Applicant’s home looking for him and assaulted and threatened members of his family. The Applicant at this time was also allegedly shot at by a pillion rider on a motorcycle. Approximately 3 weeks after the court case the police recovered the dead body of the friend in a local river.
The Applicant believed that the LTTE would find him and kill him because he had informed on them. He approached a local parliamentarian to ask for police protection, but the police protection was refused. Because the police would not protect him, he left
Sri Lanka after a period of hiding with relatives to come to Australia. After arriving in Australia, he received a letter, originally sent to his old address in Sri Lanka, from a local politician requesting that he report for military duty. The Applicant claimed that if he returned to Sri Lanka, he would be forced to join the army and if the LTTE found out his whereabouts, they would kill him.
Tribunal’s findings
The Tribunal made numerous adverse findings based essentially on a finding of a lack of credit on the Applicant’s part. His credit was determinative of the outcome as very little independent supportive material was provided by the Applicant.
The one significant document provided was the politician’s letter. From a reading of the Tribunal’s decision, it is obvious that this document was, if not pivotal, then certainly very significant in the mind of the Tribunal when forming its assessment of the Applicant’s credit. In the words of the Tribunal at [CB 89]:
“The Tribunal finds that the letter from B.A.V. Perera is contrived to assist the applicant’s case. It [the finding that it was contrived] is supported by the independent country information above.”
The language used is condemnatory and is reflective of the Tribunal’s assessment of the Applicant’s character and the credibility of his application and evidence given by him at the hearing. This comes as the first significant finding in the decision. It is evident, in my view, that the Tribunal saw the contrived nature of the politician’s letter as indicative.
The independent country information referred to was from the Department of Foreign Affairs and Trade’s Country Information Report 72/99 of 11 March 1999. It stated as follows:
“As a general comment, the Department is aware from past discussions with political contacts that politicians and other prominent Sri Lankans are frequently asked and agree to put their names to letters written by other people even where they have no direct knowledge of the matters described in the letters”
Some findings of the Tribunal appear to be unsupported by any probative evidence and amount, in my view, to speculation and conjecture. Some findings could not reasonably have been made without the Tribunal having first formed the view the Applicant was without credit and anything he had to say was a falsehood. By way of example, the Tribunal found that to use public transport to escape his home town, go to a public building to obtain a passport and to leave Sri Lanka via an airport are not the actions of a person in fear of his life as all such action “exposed [him] to public scrutiny”. Such a conclusion by the Tribunal appears to me to be unsupported by evidence, or indeed, common sense and the practical realities that may exist for someone in the Applicant’s alleged predicament. Such findings and the conclusions reached, on the face of it, appear to qualify as unreasonable. The Applicant’s conduct, in my view, may very well be consistent with someone in the Applicant’s alleged circumstances. In this context, therefore, the politician’s letter and the Tribunal’s assessment of it is significant and formative.
Whilst the Tribunal formed the view that the Applicant was not in need of state protection, it nonetheless made a discrete finding that the Applicant would be afforded state protection in respect of his concerns about his safety. In those circumstances it cannot be said that the Applicant’s fear of harm is well founded (see Svecs v Minister for Immigration & Multicultural Affairs [1999] FCA 1507 and A & Others v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 545). This was a finding open to the Tribunal on the evidence before it. As a consequence, Australia did not have an obligation to provide protection under the Refugee Convention and Protocol.
Contentions
The first contention of the Applicant was that he was denied natural justice when the Tribunal did not directly put to him that the politician’s letter was contrived and thereafter afford him an opportunity to respond. To that contention, the Respondent highlights aspects of the transcript of the proceeding wherein the Tribunal, at the start, spelt out the process to be followed. The Applicant was informed that should he wish to “say something about [any] one of those claims, please do so at the end of the hearing, and you can make comments at the end of the hearing too.” Towards the end of the hearing the Tribunal said, “...I think I’ve talked to you too long and I’ve asked if there’s any other thing you want to tell me. So if you think of anything, we can do it now.” At the end of the hearing, the Tribunal in effect again invited, in a general sense, a response to the matters raised during the hearing.
When the issue of the politician’s letter was discussed, the Applicant contends the language used by the Tribunal was a pre-emptive statement of fact that did not invite a response from the Applicant. The Respondent contends that the Applicant was, or should have been alert to the issue because it was mentioned in the delegate’s decision and during the Tribunal hearing and that he was given, in effect, an opportunity to respond at the end of the hearing as indicated above.
In my view, having regard to the fact the Applicant was unrepresented, was not legally trained and not experienced in the process, as a matter of fairness, it is appropriate to invite a response at the time an issue is raised, not later in the proceeding. I agree with the Applicant’s contention that the reference made to the politician’s letter by the Tribunal did not invite a response and fairness would have required the Tribunal to seek a response. I also agree that the issue of the letter and its contrivance was, if not determinate, from my reading of the Tribunal’s decision, very significant in the mind of the Tribunal as to the credit of the Applicant and the probative value of his claims. The Applicant should have been given an opportunity in a real and practical sense to respond to this issue. It is hard to say, however, whether such an opportunity would have resulted in a response that satisfied, or at least mollified, the Tribunal’s adverse finding and the apparent consequent attribution to the Applicant of a lack of credit. In my view, the approach adopted by the Tribunal on this issue amounts to a lack of procedural fairness. WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 and WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 have application to the facts and circumstances of this case. The finding that the letter was “contrived to assist the applicant’s case” is akin to a finding the letter was forged. In Waco the Full Court at [53] held that:
“…A finding of forgery, just like a finding of fraud is not one that should be lightly made. Both involve serious allegations.”
Their Honours held that whether or not the finding that the document in question is not genuine is based on the credibility of an applicant, it is “inherently unfair” for the decision maker to conclude that it is not genuine “without affording the person affected by that conclusion the opportunity of dealing with it” at [54].
The Applicant also contends that, having regard to the significance of the country information, in the context of its relevance to the politician’s letter, it was incumbent on the Tribunal, pursuant to s.424A of the Act, to give the Applicant particulars of the country information and to invite the Applicant to comment on it.
Section 424A relevantly provides:
(1)Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in a 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.
(2)…
(3) 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.
The Respondent contends that the country information concerning
Sri Lankan politicians putting their names to letters, the content of which is not within their direct knowledge, comes within the exemption in s.424A(3)(a) as “politicians and other prominent
Sri Lankans” are “a class of persons” of which the author of the politician’s letter is a member.I am satisfied that the exemption does apply. The “class of persons” is clearly identified and discernible; namely “politicians and other prominent Sri Lankans”. The Applicant relied on NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262 to support his contention that the information must be disclosed in the manner contemplated by s.424A if it also touched on a separate issue, such as credit. NARV can be distinguished as that case concerned country information about a “very high level of document fraud in Bangladesh” and was not about a class capable of being identified. The Court found that the exemption in s.424A(3)(a) did not apply and went on to find the information was also relevant to a separate issue; namely the weight to be attached to documents.
To the extent the instant case also concerns the weight to be attached to a document and the credibility to be attributed to the Applicant in consequence of relying on that document, the cases are similar; but only to that degree. There was no obligation, per se, under s.424A to put the country information to the Applicant as set out in s.424A(1)(b)and (c).
Conclusion
In my view, the Tribunal failed to provide procedural fairness to the Applicant in the manner it addressed the question of the politician’s letter as outlined above.
Be that as it may, the Tribunal made a discrete finding, unaffected by my concerns about reasonableness and procedural fairness, that there was adequate state protection for the Applicant in Sri Lanka, and therefore there was not a “well founded fear” as required under the Refugee Convention and Protocol.
Whilst I have concerns about the reasonableness of some of the findings of the Tribunal and the procedural fairness of the process adopted by it, there is in the Tribunal’s determination a discrete finding which was open to it and which, in itself, supports the Tribunal’s decision to affirm the refusal by the delegate to grant a protection visa (see Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 333; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Minister for Immigration and Multicultural Affairs v Thiyaragah (2000) 199 CLR 343; Minister for Immigration and Multicultural Affairs v X [2001] FCA 858; Craig v South Australia (1995) 184 CLR 163; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323). As to the exercise of discretion, see VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123. Accordingly, the application for review filed on 21 April 2004 should be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 27 January 2005
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