MZXGN v Minister for Immigration
[2006] FMCA 1808
•6 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXGN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1808 |
| MIGRATION – Protection visa – whether jurisdictional error – whether findings supported by evidence – whether failure to take into account relevant matters – whether irrelevant matters taken into account – whether contradictory findings – whether Tribunal misconstrued the claim – whether breach of s.424A of Migration Act. |
| Migration Act 1958, ss.417, 424A |
| Pilbara Land Council v Minister for Aboriginal Affairs (2000) 103 FCR 539 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Multicultural and Indigenous Affairs v SLGB (2004) 207 ALR 12 |
| Applicant: | MZXGN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 83 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 12 July 2006 |
| Date of last submission: | 25 July 2006 |
| Delivered at: | Sydney (by video link to Melbourne) |
| Delivered on: | 6 December 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr R Knowles |
| Solicitors for the First Respondent: | Phillips Fox |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 83 of 2006
| MZXGN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 6 December 2005. In its decision, the Tribunal affirmed a decision of the delegate refusing to grant the Applicant a protection visa.
Background
The Applicant is a Sri Lankan citizen who entered Australia on 30 March 1996 as the holder of a temporary business visa.
On 30 April 1996, the Applicant lodged with the First Respondent's Department an application for a protection visa. He claimed that if he returned to Sri Lanka he faced a real chance of persecution by members and supporters of the Sri Lankan Freedom Party (SLFP) and the People's Alliance (PA). His claim of persecution arose out of what he alleged to be a suspicion of him on the grounds that he possessed secret documents about corrupt activities of the SLFP and PA. The Applicant claimed that the Sri Lankan authorities would not protect him but rather would harm him at the behest of the SLFP and PA politicians and/or their supporters.
A delegate of the First Respondent refused to grant the Applicant a protection visa in a decision dated 28 February 1997. On 25 March 1997, the Applicant lodged with the Refugee Review Tribunal ("the first Tribunal") an application for review of the delegate's decision. On 4 September 1997, the first Tribunal conducted a hearing at which the Applicant gave oral evidence. On 29 October 1997, the first Tribunal handed down its decision dated 28 October 1997, affirming the delegate's decision to refuse the grant of a protection visa. The Applicant then filed an application for judicial review of the first Tribunal decision in the Federal Magistrates Court on 21 April 2004. On 27 April 2005, the Federal Magistrates Court ordered that the Tribunal decision be set aside and the matter remitted to the Tribunal for further consideration according to law.
It is relevant to note from the Federal Magistrates Court decision that the Court on that occasion found jurisdictional error on the basis that the Tribunal had misunderstood the Applicant's claims concerning the information he had collected. The Court relevantly stated:
“The applicant's claim was that he feared persecution because he had gathered information and also underlying documentation associated with such information that could be damaging to the PA and that he feared persecution not only because he was believed to be responsible for the leaking of secret plans (some of which may have been disclosed subsequently or may have entered the public domain) but also because he was suspected of having further information which had not been disclosed and, importantly, documentary evidence and secret documents in relation to the activities he had uncovered.”
After the application was remitted to the Tribunal, the Applicant then lodged further written material in support of his application with the second Tribunal. Material was lodged on 16 and 17 August 2005 and the second Tribunal conducted a further hearing on 18 August 2005.
On 22 December 2005, the second Tribunal handed down its decision dated 6 December 2005 which is the subject of the present application. In its decision, the second Tribunal affirmed the delegate's decision to refuse to grant the Applicant a protection visa.
It should be noted in passing that part of the reason for the delay which is apparent in the chronology recited earlier is that the Applicant made an application pursuant to s.417 of the Migration Act 1958 (the Migration Act) and had joined a class action before the Federal Court, having made an unsuccessful application for a subclass 833 visa which was then the subject of a review of that decision before the Migration Review Tribunal, which was also refused on 30 June 2000. An appeal to the Federal Court for review of the first Tribunal decision was filed on 21 April 2004 and then subsequently transferred to the Federal Magistrates Court which made the decision referred to earlier in this judgment. A further request was apparently made to the First Respondent pursuant to s.417 of the Migration Act. The class action in which the Applicant had joined was rejected by Merkel J on 19 February 1998.
As indicated earlier, the Applicant provided further written submissions to the second Tribunal. It is relevant to note that in the additional material the Applicant addressed a number of issues which had been referred to in the Federal Magistrates Court decision. Specifically the Applicant claimed the central reason for his fear of persecution remained unchanged; namely, that he has information of interest to his enemies which was not in the public domain. He further claimed that the PA government continues in power and so his situation remains the same as it was nine years ago. The second Tribunal set out in detail the further claims arising from the additional information.
Hearing Before Second Tribunal
In its reasons for decision, the second Tribunal recites in some detail the claims made before it at the hearing it conducted on 18 August 2005. It notes that the Applicant gave evidence at the hearing and explained that he had remained out of "Sri Lanka for almost a decade only because he believed he was in danger if he returned".
The Tribunal noted that the Applicant's wife and children remained in Sri Lanka, assisted by other family members. Although they had some property, part of which they had sold to provide for daily living.
The Applicant's wife's brother lived in the United Kingdom and also assisted the family. The Applicant claimed that in Australia he was helped by other relatives.
At the hearing before the second Tribunal, the Applicant claimed "that his was a special case". He apparently told the Tribunal that "He had been a senior person in the organised political scene." He otherwise provided details to the Tribunal of his role as a public sector accountant undertaking audits and other examinations of financial records for political organisations and that he had taken part in policy planning, the organising of political meetings and rallies and occasionally he made speeches. He was requested by a key member of one party to assist in relation to the inquiries concerning corruption in the country. In particular, he had been given names of several contacts and requested to uncover information as to what the PA was planning in the way of illegal political activities relating to the 1994 election.
The second Tribunal in its decision states that it questioned the Applicant closely on the content of the information he alleged he gathered and which remained a source of serious "trouble" for him. The second Tribunal then recites the information obtained. It is relevant to set out the following extracts from the second Tribunal decision where it recites information provided by the Applicant at the hearing in the following terms -
“... The Tribunal discussed with the Applicant the assumptions of the period that both major parties, including his own UNP, were assumed by the general public to be engaged in illegal and sometimes violent political actions. He agreed that both major parties were guilty of this but that Mr (A) had been genuinely trying to do something different and to expose corruption to improve the country. However, he was assassinated ... While the blame was laid on the LTTE, no-one had been charged with the killing and it could well have been the PA which arranged for it.
The Tribunal asked the Applicant a number of questions about the whereabouts of the documents which he alleges remain the source of his fear of persecution. He said he did not know where they were. He had handed them over to ... who had told him that they would need to check the handwriting on them. They had never been mentioned again. He thought that they would be tabled in parliament and used to demand a Commission of Inquiry but that had not happened. The UNP sometimes talks of trying to impeach the President but nothing happens and they had never contacted him to see if he could help them with information. He said he had not kept up his political contacts in Sri Lanka. The Tribunal put to him that Sri Lankan politics had moved on from the situation in 2004 and it seem improbable that documents from that period could still be a threat to the government. He responded that the real issue was that 'they', the PA ruling party, believe the documents still existed and could be used against them.”
(Court Book pp.448-449)
According to the second Tribunal decision, the Applicant then provided further details of the damaging information which he had collected. The following then appears in the Tribunal decision:
“… The Tribunal put to him that these events were now well into the past and, even if reprehensible, would come as no surprise to the public who are used to political scandals from all sides of politics. He said that their current seriousness was demonstrated by the visit to his sister's house some seven months ago. The next election would be a very close one and the release of such information could have a significant affect on the outcome.”
(Court Book p.449)
The Tribunal further states in its reasons:
“The Applicant held that the conduct of politics in Sri Lanka had not improved. There were many examples of election violence and while he agreed that was reported regularly in the newspapers, there were other malpractices which were not reported.”
(Court Book p.450)
After naming the enemies including the President and a Minister, the Tribunal records -
“... He told the Tribunal it would be safe for him to return to Sri Lanka if the UNP gained power. He stated that the UNP had not been in contact with him during his years in Australia and had not asked him for the documents. He had not contacted them as he did not want to be involved.”
(Court Book p.450)
The Second Tribunal's Findings
Under the heading "Findings and Reasons" the Tribunal referred to the Applicant's claim. It accepted that he had a strong subjective fear of harm if returned to Sri Lanka. It did not accept, however, that the fear was objectively well-founded.
For reasons which will become apparent when dealing with the application before this Court, it is useful to set out the following extracts from the second Tribunal decision:
“The Tribunal accepts that the Applicant was very involved in election matters in 1994 and that he was asked to find out what he could of fund-raising by the PA, with the particular objective of proving that the PA was involved in illegal fund-raising. In the process of seeking such information, he also learned of various ways in which the PA was seeking to disrupt the campaign of the UNP and undermine fair election processes. The Tribunal is satisfied that such investigation was not confined to the Applicant nor to his party but that electoral pressure and fraud was rife in Sri Lanka at that time. It accepts the Applicant's assessment that the assassinations of ... and … seriously interrupted the UNP's election campaign and that, at least partly for this reason, the PA candidate, …, became president.
The Tribunal accepts that, as a result of the victory of the PA, the Applicant felt unsafe. The Tribunal has carefully considered his evidence, submitted now and on a number of occasions during the proceedings of his refugee claims. The central matter involves the documents the Applicant alleges he had uncovered which exposed illegal PA activities. From this evidence it is possible to conclude that:
·he handed over the documents to … who had been the person to privately request him to undertake some investigations;
·the UNP did not use the documents in the election campaign, nor have they contacted him to ask him for the documents or for the information contained in them;
·the Applicant does not know where they now are or whether they have been lost or destroyed;
·the substance of the documents related to illegal election funding and plans to disrupt elections.
The Tribunal accepts that the Applicant did obtain information which could have been potentially damaging to the PA at the time and that the Applicant himself has continued to fear that he could be targeted because he would be thought to still have that information. It has serious doubts as to the post-election threats and harassment the Applicant has alleged and to the continued significance of any information once in his possession.”
(Court Book pp.452-453)
The Tribunal then considered in some detail reports concerning the election process in Sri Lanka and allegations of wrongdoing made in the daily newspapers and on various web sites. After referring to allegations of corruption and violence, the Tribunal then significantly made the following finding:
“… The Tribunal finds that the information uncovered by the Applicant might have been damaging to the PA but that it was not of such a kind as to either prevent the party from being elected to government or of bringing down that government. This is borne out by the continued failure of the UNP to contact the Applicant to retrieve the information and by the apparent lack of use of it in Sri Lanka itself over the past ten years.”
(Court book p.453)
The Tribunal then went on to find the following:
“... the Tribunal finds that the information in the documents was not of such a kind as to outweigh in seriousness the other various stories of corruption and violence described in news reports of the time. In coming to this conclusion, it has taken into account his evidence that the UNP has not sought him out to find the evidence to use it nor has he handed it over to them. That is, he has not acted as though he could assist in ridding his country of the political party he greatly dislikes and fears, nor have those of his political persuasion sought to have him assist them to do this. He has submitted that he had assumed and hoped that the information would have been used to support an impeachment notice in Parliament but this has not happened. Given that the information is now over a decade old, the Tribunal is satisfied that it has not been given the level of gravity by the UNP that the Applicant has allocated to it and, that being so, it is not plausible that the PA would make it of such concern that part of its agents would seek out the Applicant to harass and threaten him should he return to Sri Lanka.”
(Court Book p.454)
The Tribunal proceeded to make detailed findings concerning the Applicant's activities and movements in Sri Lanka. It found the Applicant had exaggerated his account of the post-election problems though did not rule out that there was some harassment and that the Applicant feared more. It then goes on to find:
“… However, it gives weight to the fact that he has been in Australia for ten years, a considerable time in the political life of any country and certainly of Sri Lanka. There have been further elections, major developments in the situation between the government and the LTTE insurgency, changes in political party affiliations and in the power and status of particular politicians. The Tribunal is satisfied that the Applicant who has been apart from all the political developments in Sri Lanka since 1996 and who has not retained any close contacts with his previous political party will not face a real chance of persecution for reasons of past political involvement if he returns to Sri Lanka.
The Tribunal accepts the Applicant's submission that politics in Sri Lanka can be a brutal business and that there have been many incidents of violence over the period in which he was politically active and continuing during the period when he was out of the country. However, the responsibility of this Tribunal is to assess whether this particular applicant faces a real chance of persecution for reasons of his political activities or an imputed political profile. The emphasis of this assessment, while taking into account what has gone before, must be on what might happen in the foreseeable future. The Applicant has submitted that he no longer has any intention of rejoining a political party or taking part in political activities. The Tribunal has found that his past activities are not of such a kind as to bring on him persecution for this reason in the foreseeable future. It finds that he does not face persecution for reasons of his political opinion nor for any political opinion imputed to him.”
(Court Book p.456)
The Amended Application
The Applicant relied upon an amended application filed 14 June 2006. I am satisfied that the amended application raises a number of issues which have been usefully summarised in the First Respondent's submissions as follows:
·whether the Tribunal made findings unsupported by evidence;
·the Tribunal failed to take into account relevant considerations and/or took into account irrelevant considerations;
·whether the Tribunal failed to make inquiries and/or seek additional material from the Applicant or other sources;
·whether the Tribunal made contradictory findings;
·whether the Tribunal ignored the Applicant's claims;
·whether the Tribunal misconstrued the Applicant's claims;
·whether the Tribunal incorrectly referred to section 424A and/or otherwise breached that section;
·whether the Tribunal took into account "wrong facts and evidence".
It is appropriate to note that the Applicant, in support of the Amended Application, relied upon the following:
·a document entitled "My Submissions of Contentions of Fact and Legislative Provisions" filed 27 June 2006;
·"My submissions on the First Respondent's Contentions of Fact and Law" dated 11 July 2006;
·"Applicant's Supplementary Submissions on the Matters Arising from First Respondent's Supplementary Submissions" filed 25 July 2006.
The First Respondent relied upon contentions of fact and law dated 6 July 2006 and supplementary submissions filed 18 July 2006.
Whether the Tribunal Made Findings Unsupported by Evidence
The Applicant submitted that the Tribunal considered facts which did not exist and asserted that certain findings referred to earlier in this judgment were made without any basis or proof "on which such a situation existed in Sri Lanka at that time".
The submissions of the Applicant in relation to this ground essentially seek to challenge the Tribunal's finding that electoral pressure and fraud was rife in Sri Lanka at the time of the 1994 election. The First Respondent submitted that that finding was open to the Tribunal on the evidence and had been the subject of significant discussion at the hearing before the second Tribunal. Reference was made to the extract from the Tribunal's decision where it specifically referred to the Applicant agreeing that "both major parties were guilty of (illegal and sometimes violent political actions)".
The First Respondent submitted that those exchanges put the Applicant on notice of the Tribunal's preliminary assessment that at the time of the election in 1994, both sides of politics had been assumed by the Sri Lankan people to engage in improper activities from time to time.
The finding, it was submitted, was reasonably open to the second Tribunal on the evidence before it.
The First Respondent further submitted, in reference to the Applicant's claims that the Tribunal did not have regard to the seriousness of the information which he had uncovered, that that is clearly incorrect. The second Tribunal, it was submitted, considered the Applicant's claims about the nature of the information about PA activities but did not accept the Applicant's characterisation of that information. The Tribunal, the First Respondent submitted, was not required to inform the Applicant of its preliminary or evaluatory conclusions about the material before it (Pilbara Land Council v Minister for Aboriginal Affairs (2000) 103 FCR 539 at 555 [63] to 557 [73]).
The First Respondent submitted that the Applicant was aware or should have been aware that the Tribunal might regard the information in that manner and that the Tribunal did not owe the Applicant any natural justice obligation in respect of the assessment of evidence.
Reference was otherwise made to findings by the Tribunal set out earlier in this judgment and it was submitted that unlike the decision of the first Tribunal, the second Tribunal's decision does not reveal any misconstruction of the Applicant's claims.
In my view, the First Respondent's submissions are correct. It is clear from the detailed extract of the second Tribunal's findings that it has considered the claims made by the Applicant. I do not accept that it has made findings unsupported by evidence. The mere fact that the Applicant seeks to challenge that evidence or to explain it further or indeed even indicate that the Tribunal has misconstrued its task does not detract from the conclusion which I make that the Tribunal has properly considered the claims and made findings reasonably open to it on the material. It clearly raised its concerns with the Applicant during the course of the Tribunal hearing to which the Applicant responded.
The Court is not assisted by arguments sought to be raised in this application similar to those arguments and criticisms raised by the Applicant arising out of the first Tribunal hearing. I am satisfied that the second Tribunal in relation to this ground has properly undertaken its task of making findings reasonably open to it, free of jurisdictional error. The findings are clearly supported by relevant evidence. Accordingly this ground fails.
Whether the Tribunal Failed to Take into Account Relevant Considerations and/or Took into Account Irrelevant Considerations
The Applicant, in the submissions in support of this ground appears to challenge the findings made by the Tribunal in relation to his claims. He asserts that the Tribunal did not "have a proper understanding of the political situation and prevailing legal system in Sri Lanka".
The First Respondent submitted that the Applicant is impermissibly seeking to embark upon merits review.
The Applicant argued that the second Tribunal should have considered the application of relevant Sri Lankan law and in particular the criminal code relating to improper activities which were the subject of the relevant information in the Applicant's possession.
The First Respondent submits that again the Applicant seeks to invite the Court to address matters which relate to the merits of the second Tribunal's factual findings. The First Respondent submits that it was reasonably open to the second Tribunal to find that as a result of the passage of time, the information uncovered by the Applicant was not likely to attract the adverse attention of PA and SLFP members and supporters.
In his written submissions, the Applicant sets out in some detail observations concerning the political situation in Sri Lanka.
He claimed the Tribunal did not consider the facts which had been "clearly presented".
The First Respondent submitted that the second Tribunal had regard to the matters raised by the Applicant and observed the Applicant feared that his "political opponents thought what he had uncovered could cause them grave political damage" (Court Book p.454). The First Respondent submitted that the mere fact that the second Tribunal did not refer to every item of evidence contrary to its material findings of fact does not of itself demonstrate jurisdictional error. The failure to advert to specific pieces of evidence would not, according to the First Respondent's submission, give rise to jurisdictional error and the Tribunal was not obliged to give a "line-by-line refutation" of the evidence that was contrary to findings of material facts made by it (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [64] - [66]).
In my view, the First Respondent's submissions in relation to this ground are clearly correct. A fair reading of the findings by the Tribunal reveals that it has properly made findings having regard to relevant matters and has not taken into account irrelevant material.
It has certainly not ignored relevant material even though it may not have addressed each and every one of the detailed specific allegations raised by the Applicant.
In a matter of this kind where the Applicant has a detailed knowledge of many of the events concerning the Sri Lankan political situation, it is not appropriate for the Tribunal to recite each allegation and thereby undertake what I accept to be inappropriate, namely, a "line-by-line refutation" of the evidence, nor is it required to recite every item of evidence raised by the Applicant, particularly in an application of this kind where the Applicant has what could only be regarded as an extremely detailed knowledge of events in Sri Lanka.
I am satisfied that the Tribunal in the present application has properly considered the detailed claims of the Applicant both in the material relied upon by the Applicant and during the course of the hearing. It has then reached conclusions where I am satisfied it has not failed to take into account relevant matters asserted by the Applicant and not has it made findings made based upon irrelevant considerations. A detailed extract of the Tribunal's findings set out earlier in this judgment demonstrates in my view, when compared with the claims of the Applicant, that it has properly embarked upon its fact-finding mission, free of jurisdictional error, contrary to the arguments advanced by the Applicant in support of this ground. Accordingly this ground should fail.
Whether the Tribunal Failed to Make Inquiries of the Applicant and Other Sources
As I understand the Applicant's submissions, it was claimed that the Tribunal, if it had properly explored the information that he had collected and the seriousness of that information to his enemies, then it may have reached a different conclusion.
The First Respondent correctly submitted, however, that there is no duty on the Tribunal to make the case for the Applicant and/or to initiate the various inquiries suggested by the Applicant.
In my view, the First Respondent's submissions in relation to the obligation of the Tribunal are correct. I accept that there is no general obligation on the Tribunal to seek additional material from the Applicant or other sources designed to remedy apparent deficiencies in the Applicant's case (Minister for Immigration and Multicultural and Indigenous Affairs v SLGB (2004) 207 ALR 12 at [43] and [112]). Accordingly in my view, this ground fails.
Whether the Tribunal Made Contradictory Findings
The Applicant asserted the information he collected was specific documentary evidence of which his enemies were aware. He referred in some detail to the information and noted the Tribunal's conclusion which he submitted demonstrated the Tribunal failed to consider the claim in full, as indicated earlier, but further that it contradicted itself in its findings by considering his claims in a "piecemeal basis and not as a whole story". He argued that once having found that the documents were not in the possession of the Applicant, it should not have found fault with the Applicant that he had not handed over the documents to the UNP.
The First Respondent submitted that there is no contradiction in the findings. It was submitted the second Tribunal did not accept that with the passage of time and in light of the UNP's failure to obtain and use the information uncovered by the Applicant during that time, the information would now be perceived by the UNP or the PA to have any political value.
The detailed extract of the findings set out earlier in this judgment where the Tribunal did not regard the information to be "of such a kind as to outweigh in seriousness the other various stories of corruption and violence described in news reports of the time" was a factual matter, according to the First Respondent, for the second Tribunal to determine.
It was submitted that the findings concerning the documents no longer being held by the Applicant and that no use had been made of the documents by the UNP were not contradictory. The First Respondent submitted that it is necessary to read the second Tribunal's decision "fairly and as a whole". In doing so, it was submitted the second Tribunal's other findings provide a context for the construction of those findings concerning the documents.
In my view the Tribunal has not made contradictory findings. It was open to the Tribunal to find and accept that the Applicant no longer had the documents in his possession and that no use had been made of those documents by the UNP. Although there was some suggestion by the Applicant of illogicality in this finding and/or contradiction, I do not accept that to be the case.
I cannot see any inconsistency or contradiction in the findings relied upon by the Applicant specifically in relation to the documents.
Apart from there being no illogicality, in my view it was indeed entirely appropriate for the Tribunal to draw conclusions not simply in relation to the documents and whether they remained in the possession of the Applicant but whether they had found their way to the UNP and had been used. It is the apparent lack of reliance upon the documents over a significant period of time which in my view legitimately led the Tribunal to reach the adverse conclusion in relation to the documents. That conclusion, in my view, was free of jurisdictional error and this ground should fail.
Whether the Tribunal Ignored the Applicant's Claims
For reasons set out earlier in this judgment, I do not accept that the Tribunal ignored the Applicant's claims. On the contrary, the Tribunal set out in great detail the Applicant's claims and addressed those claims appropriately and free of error. Accordingly this ground fails.
Whether the Tribunal Misconstrued the Applicant's Claims
Likewise, I am not satisfied the Tribunal misconstrued the Applicant's claims. I note the Applicant sought to argue that "the integers of my claim were not properly understood or properly considered by the Tribunal". In support of that submission, however, the Applicant challenges the findings by the second Tribunal and seeks to effectively reagitate those matters which had clearly been presented to the Tribunal and referred to in its detailed decision. I do not accept that there has been any jurisdictional error arising out of this ground.
Whether the Tribunal Mistakenly Referred to s.424A
In considering this ground it is relevant to note that in its decision under the heading "Claims and Evidence," the Tribunal states the following:
“… In addition it has considered country information, particularly that relevant to the circumstances at the time the Applicant left Sri Lanka and those prevailing now, some nine years later, in Sri Lanka. Where this information is pertinent to the Applicant's claim, it has been made available to him for comment under the requirements of s.424A as interpreted by the High Court in the matter of SAAP.”
(Court Book pp.439-440)
The Applicant submitted that the above statement was incorrect. Specifically the Applicant submitted:
“… this statement is completely incorrect and I wish to categorically state that many of its findings on my claims have been made without the pertinent information making available to me or giving me an opportunity to explain or disprove them. …”
The Applicant then submitted that this practice is "against the natural justice and thereby the Tribunal has made a major jurisdictional error".
It is conceded by the First Respondent that the Tribunal did not write to the Applicant pursuant to s.424A of the Migration Act and that the statement set out above was made in error. It was submitted, however, that that error would not affect the Tribunal's exercise of its decision-making power. Accordingly, it was submitted, it is unclear how the Applicant now specifically asserts that s.424A applied in the circumstances of the present case.
In my view, whilst it is understandable that the incorrect reference to information being made available for comment to the Applicant pursuant to s.424A has been made by the Tribunal, it would appear that issues were fully canvassed and agitated, including country information, and that a s.424A letter was not required. Hence the error, whilst causing understandable disquiet in the mind of the Applicant, is not in my view sufficient in the present case, in the absence of further particulars from the Applicant, to justify a finding that the incorrect reference to a s.424A letter constitutes jurisdictional error. Accordingly this ground fails.
Whether the Tribunal Took into Account Wrong Facts and Evidence
The Applicant asserts that the Tribunal had committed an error by taking into account wrong facts and evidence, and in written submissions sets out instances where that allegedly occurred. Reference was made to the request by the Applicant to the First Respondent pursuant to s.417 of the Migration Act and the Tribunal's note that on 21 May 1998 the First Respondent decided not to exercise their public-interest power. The Applicant seems to suggest that the Tribunal misunderstood the contents of the letter sent by the First Respondent to the Applicant on 26 April 2000 by assuming that certain reference was made to the particulars and information obtained by the Applicant being in a public domain.
The First Respondent, though not conceding that the Tribunal incorrectly described the reason for the Applicant's failed application pursuant to s.417 of the Migration Act, submitted that the Tribunal's description, if it be in error, does not provide a basis upon which it could be argued that the error affected the Tribunal's exercise of its decision-making power. The Tribunal, it was submitted, did not take into account the purported reason for the failure of the Applicant's s.417 application.
The First Respondent further submitted that the Applicant's submission that the Tribunal misunderstood his claims or failed to deal with them effectively relates to the merits of the Tribunal's fact-finding process and does not raise any grounds of jurisdictional error. It was submitted that the Tribunal specifically made a finding that in the 10 years since the Applicant's departure from Sri Lanka, the UNP was likely to approach the Applicant to ascertain what information he held about the PA. As I understood the First Respondent's submissions, that finding was made without error. Further, substantial findings were made which were not dependent upon the Tribunal's comments in relation to the failure of the Applicant's s.417 application.
In my view the Tribunal's reasons, whilst perhaps containing a minor error in the manner in which reference was made to the s.417 application and/or the relevant correspondence, does not form part of the Tribunal's decision-making process. Other criticisms made of the Tribunal's decision appear to me to raise matters more properly the subject of merit review, which is impermissible. In any event, I do not see any jurisdictional error arising out of this ground. Accordingly this ground should fail.
During the course of oral submissions, it should be noted that the Applicant, whilst providing precise particulars of issues that he wished to agitate, essentially argued that "from the beginning the Tribunal misunderstood the whole thing". This theme is reflected in the written submissions and repeated throughout oral submissions. It is not necessary to recite each and every criticism of the fact-finding mission of the Tribunal but I note in passing, in considering this ground, and of course it is relevant in relation to other grounds, that the Tribunal pursued its fact-finding mission free of jurisdictional error and made adverse findings of fact which were reasonably open to it on the material.
Whether the Tribunal Erred in its Assessment of the Evidence
This ground likewise appears to challenge precise findings and specifically a reference to the Tribunal wrongly stating that the "Applicant submitted copies of threatening letters in which the writer has both signed and dated it" (Court Book p.454). The Applicant makes the point that the letters were not signed. Accordingly there is no jurisdictional error arising out of this mistaken description of the letters.
The First Respondent submitted that the mere reference to the letters being "signed" is simply referring to the fact that they had an identifying name at their base, albeit in typeface. The First Respondent submitted the Tribunal did not mean, nor should it be taken to mean, that each letter bore a "handwritten" signature but rather each letter bore the name of the person or organisation making the threat.
In the alternative, the First Respondent submitted that even if the Tribunal committed a factual error in the assessment of the evidence, that did not involve jurisdictional error. The First Respondent submitted that the Tribunal's assessment of the evidence was open to it even if others may not have assessed the evidence in the same way.
In my view, although the error again is perhaps regrettable and understandably caused some concern to the Applicant, I do not regard it as an error of a kind which would lead to a conclusion that there has been jurisdictional error. At best it may be described as an error of fact and/or an error in the description of the document which may be misleading to the extent that the reader would conclude that the letters were in fact "signed". The reference to a letter being "signed" may well be taken to mean that the letter had placed upon it a signature which usually would be taken to be a "handwritten signature" rather than simply the typewritten name of the sender.
Having regard though to the significant findings of fact in this application, that error and/or misdescription is not of sufficient significance to lead this Court to find that jurisdictional error has occurred. At best it may be regarded as a minor error of fact which does not provide any or any proper basis upon which the Court may conclude there has been jurisdictional error. This ground accordingly fails.
Conclusion
For the reasons given, it follows that the application should be dismissed with costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 6 December 2006
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