MZWTX v Minister for Immigration
[2008] FMCA 1226
•1 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWTX & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1226 |
| MIGRATION – Review of Refugee Tribunal – refusal to issue protection visa – failure to have regard to relevant material. |
| Migration Act 1958, ss.420, 422B, 425 |
| Bushell v Minister for Immigration & Anor [2008] FMCA 1193 Chey v Minister for Immigration and Citizenship [2007] FCA 871 Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 485; (2000) 21(2) Leg Rep 2; (2000) 58 ALD 609 Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396; (2001) 64 ALD 289 Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425; (2001) 75 ALJR 982; (2001) 9 Leg Rep 20 |
| Applicants: | MZWTX, MZWTY, MZXOM & MZXOP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 63 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 5 May 2008 |
| Date of Last Submission: | 5 May 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 1 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Gibson |
| Solicitors for the Applicant: | Frank Sabelberg Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr S. A. Burchell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That a writ of Certiorari issue quashing the decision of the second respondent made on 13 December 2006.
That a writ of Mandamus issue requiring the second respondent to hear and determine the application according to law.
The respondents pay the applicant’s costs as agreed or, failing agreement, to be taxed at Federal Court scale.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 63 of 2007
| MZWTX, MZWTY, MZXOM & MZXOP |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant and his family seek judicial review of a decision of the Refugee Review Tribunal made on 13 December 2006 rejecting the applicant's claim for a protection visa. The circumstances giving rise to the applicant's claim are well summarised on page 5 of the decision as follows:
On 7 September 1996 a Tamil school girl (Krishanthi Kumaraswamy) was killed at Chemmani point, along with three other people including members of her family. The incident was internationally notorious. The applicant was placed in charge of investigations. He succeeded in identifying the persons responsible. They were arrested and charged with murder. 5 Army soldiers and a police constable were found guilty and condemned to death. The judgement – handed down on 3 July 1998 – was widely publicised nationally and internationally, due to its sensitivity. The trial also exposed the prevalence of human rights abuses by the army, causing resentment of the applicant among the perpetrators of such abuses. The applicant was a key witness for the prosecution and was commended by the judges. Since then the applicant and his family have been subjected to death threats, harassment, and physical intimidation, culminating in a grenade attack on his sister-in-law’s residence that injured his daughter, sister-in-law and mother-in-law. (Later the applicant said his wife was also injured). The applicant used to receive death threats over the phone and his family were followed on numerous occasions by unknown persons.
The applicant said that one of the accused escaped from prison and is still at large, and the applicant understands that it is this person, with his underworld connections, that is orchestrating threats against him. Another was let go, but subsequently taken in on other charges. No precautions have been taken by the authorities to safeguard the lives of the applicant and his family against reprisals by sympathisers of the convicted persons. The very person they turn to for help could be a person who has committees such abuses as were exposed by the trial. The applicant had prospects of being promoted to a higher rank in the Army and would not normally have been expected to retire for another 9 years. But because of the importance of his family’s safety, he decided to retire with effect from 20 August, 2003.
The applicant stated that the enmity towards him had a racial element because he was perceived as helping Tamils instead of Sinhalese soldiers. He said he and his family had to move from place to place due to their fear of harm. Even their relatives were reluctant to take them in. The applicant also said that the convicts had appealed their sentences and could be released.
A large amount of evidence was provided by the applicant including newspaper articles, copies of correspondence and documents from the police, and medical reports concerning injuries that his family members suffered as a result of a grenade attack on 23 May 2003.
The Tribunal recounts the evidence of the applicant's daughter who said that she was injured in the grenade attack on the house and still has no feeling in the back of her leg and has dots all over her body that are shrapnel scars and a burn scar on her left upper arm. The applicant's wife explained that she continues to limp as a result of the injuries. Documents from a Sri Lankan hospital were provided confirming the injuries as being multiple penetration wounds: they are not referred to by the Tribunal. Original X-rays showing the wounds were also provided, but not referred to by the tribunal.
Whilst an extensive array of material was placed before the Tribunal, the Tribunal's findings turned upon a relatively narrow aspect of the case. The Tribunal concluded:
However, the Tribunal does not accept that the applicant or any of his property, staff or family was ever threatened or harmed in connection with the trial. The reasons follow.
The applicant submitted documents purporting to be correspondence of his own, and the official correspondence of others as well as purported police reports and corroborating letters, concerning incidents of threat and harm dating from 1998 to 2001. He claimed to have had a police patrol installed as a result, however there is virtually no direct evidence of this or of any other active investigation or follow-up to his complaints, indicating that they were regarded as realistic by the authorities. There is no direct evidence of those threats in the form of threatening letters or tapes of calls.
The applicant said that this pattern of harassment and threat culminated in a grenade attack on his sister-in-law’s house in May 2003. He was able to obtain a number of purported information reports to the police about this attack, as well as hospital documents concerning injuries claimed to have been suffered as a consequence. There was even a purported newspaper cutting about the event. Various officials and the editor of the newspaper were prepared to support the applicant’s claim that this event occurred. However, independent inquiries undertaken at the request of the Tribunal, and then followed up again, strongly indicated that this incident did not occur. Police contacted by the post said that they had no record of it, and that at least one of the documents submitted was fraudulent. Staff of the paper said the Ravaya newspaper report was not published in the paper on the day it was supposed to have been published. Moreover, various other persons contacted by the post had not heard of the incident.
CX43698 “Sri Lankan Document Fraud” DFAT, CIR No. 416/00 dated 07/08/00, reports on the prevalence of fraudulent documents and adds a comment about officials supporting immigration applications:
Conceivably also it would be possible to arrange for ‘genuine’ documents from such people for a price or some other consideration. For example, we have reported high level endorsement or sponsorship of irregular visa applications in the past.
Corruption and malfeasance is present in Sri Lankan officialdom and the legal profession.
The documents submitted by the applicant in relation to the 2003 grenade attack, as well as the earlier alleged incidents, are unreliable. The Tribunal prefers the evidence obtained by the post to that submitted by the applicant. The Tribunal does not accept that this grenade attack occurred, considering the state of the evidence overall, it does not accept that any of the incidents of harm and threat from 1998 to 2001 occurred either.
The Tribunal member refers to there being "no direct evidence" of the threats relied upon as no copies of the threatening letters or recordings of the calls were provided. Of course, this is almost invariably the case in refugee claims. Whilst relevant, it is unlikely to have been a significant part of the decision.
The gravamen of the Tribunal decision appears to be that, as a result of the Tribunal accepting information from departmental officers in Sri Lanka to the effect that at least one of the police documents was false and the newspaper article was not published in "Ravaya", the Tribunal then rejected the applicant's claim.
It appears clear that the result of the Tribunal's findings with respect to the applicant’s evidence of the grenade attack resulted in the rejection of all of the applicant's evidence of threats. However, there appears to be no dispute that the applicant was heavily involved in the trial and conviction of the military officers and a police officer for the death of the Tamil girl.
The Tribunal member made no findings as to whether she accepted that the applicant's family members had suffered injuries consistent with a grenade attack.
There are no findings that threats against the applicant or his family, as a result of his participation in prosecutions for the death of the Tamil girl, were inherently unlikely. Indeed it could hardly be disputed that a threats against a person instrumental in the successful prosecution of members of the Sri Lankan military and police force for the murder of a Tamil girl is inherently plausible.
‘Ravaya’ newspaper article
In this case I have accepted evidence that the newspaper article describing the grenade attack, allegedly published in the "Ravaya" newspaper, was provided to the first Tribunal member. Significantly, the article provided to that Tribunal member was an original broadsheet of the newspaper. During the course of the hearing before me another copy of the original broadsheet version of the newspaper page has been provided. I accept that it is another copy of the same broadsheet, and therefore admissible to show the nature of the document provided to the tribunal. The broadsheet does not appear to have been retained on the Tribunal's file.
Information from the Department of Foreign Affairs and Trade (DFAT) was provided to the Tribunal in DFAT Report 556 of 23 October 2006. The report does not identify who undertook any of the inquiries nor who the DFAT officer spoke to at the newspaper. It simply states:
We contacted the Ravaya office in Maharagana on 12 October to determine the authenticity of the newspaper article dated 25 May 2003 reporting the attack on [the applicant’s] wife, sister-in-law and daughter. We faxed a copy of the article to the Ravaya office to determine its authenticity. The Ravaya office said that no such article appeared in the Ravaya paper on that day.
In response to a letter from the Tribunal expressing concerns about the veracity of the newspaper article, the applicant provided to the Tribunal a letter from the Chief Editor of the "Ravaya" newspaper stating that a true copy of the article was attached to the letter (and a copy was so attached) confirming that the article was printed in the "Ravaya" newspaper on 25 May 2003 and providing a telephone number upon which the Chief Editor could be contacted. That telephone number corresponded to the number on the letterhead, which could easily be verified by a directory search if necessary. Whilst this letter is referred to by the Tribunal member in recounting the material before the Tribunal, it is not discussed in the findings.
Nowhere in the decision does the Tribunal refer to the original broadsheet copy of the newspaper that had been provided to the previous Tribunal member.
Ms Burchell, for the Minister, maintained that it was irrelevant whether or not the tribunal member had the original broadsheet copy of the article before her as the member had made enquiries through DFAT which she relied upon. It was submitted that the answer from the tribunal would have been the same regardless of whether the broadsheet version of the article was before the member or not. I find this submission remarkable. In this case the original broadsheet is quite striking and confronting evidence. A reasonable decision-maker could not help but have very real concerns about the less than specific information from the post, if confronted with an original broadsheet from a newspaper. At the very least it would be discussed in the reasons if the Tribunal member was aware of the document. Indeed, in a case such as this one would expect a reasonable tribunal member (if aware of the original document) to ascertain the precise nature of the DFAT enquiries or otherwise verify the contents of the newspaper.
Whilst the broadsheet version of the paper is not conclusive evidence, it is particularly compelling. For it to be a fraud, which is possible, it is a very elaborate fraud which would require access to facilities to print broadsheet newspapers. If it shows that the DFAT enquiries were inaccurate, this casts real doubt on the balance of the DFAT enquiries.
As a result I find that the tribunal member was unaware of the broadsheet copy of the article. The applicant was, in my view, denied a proper hearing as a crucial piece of evidence that he provided to the tribunal member was not considered.
Hospital Records of Grenade Attack
The hospital records and X-ray images appear to corroborate the claim that the family members were injured in a grenade attack. The tribunal referred to them but made no findings about the injuries. However, the transcript shows that the original documents and X-rays were provided to the tribunal member. They were not returned, nor are there copies in the court book.
Ms Burchell, for the Minister submitted that ‘the fact of shrapnel wounds is not a relevant consideration’ as they could only be evidence in support of the claim, not an integer of the claim. She argued that the Tribunal member did not have to consider how the wounds occurred, if at all as the cases for the applicant’s wife and daughter were dependant upon the applicant’s case.
It is difficult to understand why the tribunal member would not have referred to the evidence of the wife and daughter, and the medical evidence of shrapnel wounds. Whilst I accept it is not an integer of the claim, the failure to consider this material provided by the applicants, where it is clearly relevant and potentially significant to the decision must demonstrate a failure to consider the relevant evidence.
Police Documents
A difficult aspect of this case is that the persecution that the applicant claimed he suffered was as a result of participating in a prosecution against a police officer and soldiers for killing a Tamil girl. It naturally gives rise to concerns as to the veracity of material provided by the police to a DFAT officer in Sri Lanka, particularly if that officer was not aware of the nature of the case. This issue is not discussed.
Whilst this is ultimately a question of fact for the tribunal member, it is difficult to conclude that it would not have been a matter of real concern for the member, if she were aware of the broadsheet copy of the article or the hospital reports. The newspaper article broadsheet, if considered by the tribunal member may well have impacted upon the weight that could be placed upon the DFAT enquires and the version given by the applicant.
Conclusions
This case raises a number of significant issues:
a)Whether a decision made in circumstances where crucial evidence supplied to the tribunal was not passed on to the decision maker is open to judicial review; and
b)Whether a decision made where evidence central to that decision is not referred to is open to judicial review.
A return to the basic role of the tribunal is instructive:
420 [Refugee Review Tribunal's way of operating] (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.
…
422B [Exhaustive statement of natural justice hearing rule] (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
…
425 [Tribunal must invite applicant to appear] (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The whole purpose of the tribunal is to provide a review mechanism during which the applicant is given a hearing. Its role is significant as it is the final arbiter of fact over issues that could leave applicants returning to torture or their death. The decision making process by the tribunal must give real consideration to the case and materials put by the applicant: see generally the discussion by Kenny J in Chey v Minister for Immigration and Citizenship [2007] FCA 871. The tribunal must consider relevant and significant evidence before it: see Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 and Bushell v Minister for Immigration & Anor [2008] FMCA 1193.
The applicant has not been given a hearing if material he has provided, central to the questions being considered, has not been considered by the Tribunal member. For this reason I find that the tribunal failed to carry out its task by making a decision without having regard to the broadsheet newspaper provided to the previous tribunal member. The fact that this may have involved error by the member on the material she was given does not bear upon the central difficulty that the applicant was denied a hearing as a central piece of evidence was not considered by the Tribunal member.
The issues with respect to the medical evidence are not so straight forward. The tribunal member was clearly aware of those documents and the import of that evidence. She decided the question of whether a grenade attack occurred, and thus determined the relevant integer of the claim. The tribunal is not required to advert to every piece of evidence that is before it, but only determine the issues required. In Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 485; 2000) 21(2) Leg Rep 2; (2000) 58 ALD 609 the court said:
[67] In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.
In Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396; (2001) 64 ALD 289 Allsop J said:
[79] Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction (as to which issue see generally and not exhaustively, Minister for Immigration and Multicultural Affairs v X [2001] FCA 858; Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832; Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736; Chhour v Minister for Immigration and Multicultural Affairs [2001] FCA 911; Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 and Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864) they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed. It may be that if the element of the appellant's claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with. In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed. However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim.
Whilst it is a common finding that a tribunal member is not required to refer to every piece of evidence, it is difficult to find examples where that evidence is particularly significant to the decision being made. Whether Durairajasingham and Paul state the test in too restrictive terms, given the nature of the particular issues before the courts on those occasions, is not for me to determine. In this case it is appropriate that I apply the principles set out in those decisions. I therefore find that I am not persuaded that the failure to refer to the medical evidence in this case, of itself, gives rise to relief.
The applicant also argued that the circumstances of this case give rise to an apprehension of bias. The High Court, in Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425; (2001) 75 ALJR 982; (2001) 9 Leg Rep 20 considered the test for apprehended bias in administrative proceedings. In a joint judgment, Gleeson CJ, Gaudron and Gummow JJ said:
[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the question of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of ‘a fair-minded lay observer’ when, as is the case with the tribunal, proceedings are held in private.
[28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
The applicant relies upon the failure of the tribunal member to have regard to the broadsheet, and the failure to refer to the medical evidence of shrapnel injuries. In addition the applicant claims that as the member was previously working in the department she had a bias in favour of evidence from DFAT. The latter, in my view, can not be sustained as a general proposition. Decision makers on tribunals and courts are drawn from diverse backgrounds. The submission would be akin to suggesting that a former Crown Prosecutor or Crown Solicitor would be biased in hearing prosecutions or cases involving the state. However, the failure to refer to these two significant pieces of evidence, in the context of this most unusual case, would, in my view, cause the hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, to have a reasonable apprehension of bias.
The case for the applicant was also put on a number of alternative bases. Given the findings that I have made the decision must be quashed and the matter remitted for re-hearing. As a result there is little to be served by traversing the alternative grounds argued by the applicant.
I therefore allow the application and order the issue of constitutional writs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Katherine Sudholz
Date: 1 September 2008
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