MZXIH v Minister for Immigration
[2007] FMCA 75
•30 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXIH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 75 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error – whether breach of s.424A. |
| Migration Act 1958, ss.420, 424A, 422B, 427(1)(d) |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 Applicant M164/2002 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 16 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs & Anor [2006] FCAFC 62 |
| Applicants: | MZXIH, MZXII AND MZXIJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 385 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 31 October 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 30 January 2007 |
REPRESENTATION
| Counsel for the Applicants: | Mr W.G. Gilbert |
| Solicitors for the Applicants: | Clothier Anderson & Associates |
| Counsel for the First Respondent: | Mr C.J. Horan |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 385 of 2006
| MZXIH, MZXII AND MZXIJ |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants seek judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 9 February 2006. In its decision, the Tribunal affirmed a decision of a delegate of the first respondent to refuse the applicants' application for a protection visa.
The applicants are a woman and her two children. They are all citizens of Sri Lanka who arrived in Australia on 2 June 2005 and applied for a protection visa on 30 June 2005. Only the applicant mother made claims for protection and both parties have referred to her throughout as "the applicant".
The applicant's husband, also a Sri Lankan national, did not accompany the applicants to Australia.
The applicant claimed to fear persecution for reason of her political opinion as a supporter of the United National Party (UNP). Specifically, it was claimed that political opponents harassed her after the April 2004 elections.
On 4 August 2005, a delegate of the first respondent declined to grant the applicants protection visas. The applicants then sought review by the Tribunal, and in the course of that application the applicant submitted new information in support of her claims which included two police reports (one purporting to detail an attack on her husband and one relating to an attempt to abduct her son from school) (the police reports) (Court Book pp.99-102).
As indicated earlier, the Tribunal affirmed the delegate's decision not to grant protection visas to the applicants.
The applicants' claims
The Tribunal has accurately set out, under the heading "Claims and Evidence," a summary of the claims as follows:
· “She is an active supporter of the United National Party (UNP). Her husband was acquainted with a Member of Parliament for this party and her father also supported the party. She used to have meetings in her house and donate money for election campaigns. Her husband works in the US.
· She was harassed by her political opponents at the April 2004 elections. Her father was stoned and her political opponents requested protection money and threatened her.
· There was an attempt to kidnap her son from school in February 2005. Someone said he had come to pick up the child on behalf of the mother but a teacher rang and checked with her. The person fled.
· She reported the incidents to the police but they did not act against the people. In the case of the attempted kidnapping of her son, she claims that a Member of Parliament of the JVP interfered with the police investigation.
· She came to Australia for protection. She cannot protect herself and her children against political thugs as she is alone there, her husband being in the US.”
The Tribunal also noted in considering the "Claims and Evidence" that on 31 October 2005 it received a response to a hearing invitation accompanied by a copy of a letter dated 18 October 2005 by an organiser of UNP, stating that the applicant and her husband had given full support to the UNP by helping financially and "all the other possible ways".
The Tribunal referred to the further submissions it received from the applicant under cover of letter dated 9 December 2005 (Court Book p.92). Those detailed submissions were accompanied by other documents in support of the application including translations of two purported police reports, or at least extracts, from a police station information book.
The claims and additional material were considered by the Tribunal and it is relevant to set out the following from the Tribunal decision:
“In relation to the alleged attempt to kidnap her son, the applicant stated that she began receiving many telephone calls and letters in January 2005. The letters were from all sorts of political parties asking for money and one was from the secretary of the JVP. In January three or four people from the JVP visited the house and explained what the JVP was all about, then they started telephoning her and asking why she was not contributing; then they threatened her. She went to the police about these three or four people in January.
The Tribunal discussed at length with the applicant its concerns about the documents purporting to be extracts from the police information books. The Tribunal’s concerns related to the lack of indication of which police station(s) these extracts were from and of the date of the occurrence reported versus the date when copies of the entries were obtained. The applicant maintained that 5 November 2005 and 15 November 2005 were the dates the copies of these entries were obtained. The Tribunal indicated that its concerns were sufficiently serious for it to consider that the documents were not genuine. In response it was indicated that some of the contents had not been translated hence the Tribunal would have this impression. It was agreed that the documents would be retranslated. The applicant indicated that her husband had obtained these extracts from the police. He had returned to Sri Lanka on 9 November 2005; given the contention of the applicant that the dates on the top of these documents were the dates when they were obtained/issued, the Tribunal raised the question of how her husband could have obtained the one dated 5 November 2005 if he did not arrive in Sri Lanka until 9 November 2005.”
(Court Book p.138)
The Tribunal Decision
Under the heading "Findings and Reasons," the Tribunal accepted the applicant and her family had supported the UNP by donating money, canvassing and holding some meetings at her home. It was not satisfied the activity had led to treatment that the applicant claimed, nor did it accept she had been involved in the "political" side of the election campaigns.
The Tribunal found that the applicant "has not provided convincing evidence that any harm she claims to have been subjected to was in fact perpetrated by political enemies" (Court Book p.144). It referred to the applicant making "vague connections between the visits by members of the JVP who were clearly on a recruiting/fundraising campaign and the threats over the phone that she claims to have received". Whilst accepting that the applicant may have been approached for funds by a number of political parties and that she may have been threatened for not complying, it then relevantly found, "the nature of these threats over the telephone has not been detailed to the Tribunal".
Significantly, the Tribunal then found the following:
“... The only indication of presumed political involvement is the original claims by the applicant that a certain JVP politician had 'interfered with the police investigation'. This claims was not reiterated at the hearing and it does not sit well with the applicant's insistence that the police did nothing following any of her complaints. If there was a police investigation, this indicates that the authorities did take her claims seriously. The applicant has provided no further comment on this presumed political interference. The Tribunal does not accept that this politician interfered with the police investigation.”
(Court Book p.145)
The Tribunal then rejected the applicant's claim that an attempt had been made to kidnap her son. Specifically, it made the following significant finding:
“The Tribunal has sufficient concerns about the evidence produced to attest to the attempted kidnapping of her son to question whether this was an actual occurrence or an embellishment of the claims. The Tribunal finds, for reasons below, that there was no attempt to kidnap the applicant's son.
(Court book p.145)
The Tribunal then proceeds in its reasons to deal with the claim to police reports and expresses reservations about the accuracy of those reports, although it is noted that after analysing the reports and expressing concerns, the Tribunal then relevantly finds:
“… The existence of this document, even if it were accepted as genuine, would only attest to a report being made to a police station and could not represent evidence of the events described therein having occurred. The Tribunal therefore does not accept that the applicant was threatened by telephone as stated in the extracts or that there was an attempt to kidnap her son from school; the Tribunal does not accept that there is sufficient evidence to indicate that the applicant was a target of harm for political reasons. The timing of the events described is not consistent with country information relating to political violence around election times; the applicant when asked about this timing indicated that the political parties wanted to gain power and that at the time (January-February 2005) there were problems in the Parliament.”
(Court Book p.146)
The Tribunal notes the election timetable was April 2004 and November 2005. The Tribunal then dealt with a second extract, allegedly from the police book, purporting to describe an assault on the applicant's husband on 15 November 2005 and made similar observations to the observations it made when dealing with the first report.
In its findings, the Tribunal also referred to other grounds for rejecting the applicant's claims. It dealt with a failure by the applicant to explain why her husband, who she claimed had returned to Sri Lanka from the United States of America in January 2005 because of the persecution that she was experiencing, had then left again in April 2005 without the applicant. Further, the Tribunal in its findings indicated that the applicant had failed to explain why she had remained in Sri Lanka for a period of two months after her husband's departure even though at that time she had already been granted an Australian visa and was able to leave at any time. Relevantly, in its decision the Tribunal states:
“... The applicant also was granted her Australian visa on the same day in which her husband left Sri Lanka but did not leave until almost two months later. This is not an indication to the Tribunal that the applicant's fear of persecution was the reason she left Sri Lanka. No response was received on this point.”
(Court Book p.147)
The lack of response referred to by the Tribunal related to a letter forwarded by the Tribunal to the applicant pursuant to s.424A of the Migration Act 1958 (the Migration Act).
The Issues
In the amended application, the applicants claim the Tribunal decision was made without jurisdiction or was affected by an error of jurisdiction. There are four particulars subjoined to that ground as follows:
“(a)The Tribunal acted in breach of s.424A of the Migration Act in that it failed to provide written notice to the applicant that part of the reason for the decision would be that the applicant had failed to reiterate at the hearing her claim that a JVP politician had thwarted the police investigation into the attempted kidnapping of her son;
(b)The Tribunal acted in breach of s.427(1)(d) of the Migration Act and/or failed to exercise its jurisdiction in that it dismissed two police reports as effectively fabrications in circumstances where it failed to make any enquiries as to the provenance of such documents and the meaning of relevant pro forma entries;
(c)The Tribunal failed to exercise its jurisdiction in that it made a finding that the date at the head of the extract of the police reports was the date when the reports were made when there was no evidence to support such a conclusion;
(d)The Tribunal failed to exercise its jurisdiction in that it reached the above conclusion in circumstances where the documents were from a different country and in a foreign language, hence expert evidence was required to contradict the sworn evidence given at the hearing.”
It is appropriate to deal with the separate issues raised in the amended application.
(a) Section 424A
It is common ground that any failure to comply with s.424A will constitute a jurisdictional error (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 [80] - [84] (SAAP)).
It was submitted for and on behalf of the applicant that the claim for protection in this instance placed considerable importance on the attempt by political opponents to kidnap her child. That claim, it was submitted, was supported by the police report and the fact that that report itself was linked to the subsequent claim that a JVP politician had interfered with the police investigation.
Reference was made to the Tribunal's reasons for refusing to accept the authenticity of the police report as being that the applicant had not reiterated in evidence before the Tribunal her claim that a JVP politician had interfered with the police investigation. It was submitted that the Tribunal did not accept the interference occurred and in reaching that decision took into account the information the applicant had provided in the primary application. The Tribunal, it was submitted, acted in breach of s.424A by not providing the applicant with the required notice.
The first respondent submitted that in relation to this issue the applicant has failed to identify the information claimed not to have been disclosed pursuant to s.424A. It was submitted that the arguments of the applicant should be rejected as any failure by the applicant to reiterate an earlier claim could not constitute "information" for the purpose of s.424A. In any event, it was submitted, the fact that the applicant failed to reiterate her claim concerning the JVP politician thwarting the investigation was not "the reason or part of the reason" for the Tribunal's decision. In the alternative, it was submitted that reference to the JVP politician's interference with the police investigation had been incorporated by the Tribunal in its reference to the applicant's submissions and fell within the exception of s.424A(3)(b).
In my view, whilst it is acknowledged that SAAP imposes somewhat strict obligations on the Tribunal, I accept that this allegation does not meet the requisite standard of providing particulars as relevant "information" which would permit application of s.424A of the Migration Act.
I otherwise accept that the Tribunal in any event had not regarded the applicant's failure to reiterate her claim about the JVP politician as part of its reasons for decision.
I am otherwise satisfied that if the reference to the failure to reiterate the claim about the JVP politician could be regarded as information, then it was not made part of the applicant's submissions and accordingly does fall within the exception pursuant to s.424A(3)(b) of the Migration Act.
Ultimately, what has occurred in this instance is that the applicant's claim has been rejected by the Tribunal, and as submitted by the first respondent, it cannot be said that a claim that is made and rejected by the Tribunal forms part of the reasons for the Tribunal's decision. The claim is not the information, according to the first respondent's submissions, but rather it is the information relied upon in rejecting the claim that is relevant. I accept that submission and, in my view, accordingly this ground should fail. In reaching that decision, the court is not assisted by other authorities referred to by counsel during the course of submissions. The Tribunal in this case is simply noting a failure to reiterate a claim, and that in my view cannot constitute information of a kind which would attract the application of s.424A of the Migration Act. As indicated, this ground should therefore fail.
(b) Failure to Exercise Jurisdiction: Rejection of the Police Reports
The applicant submitted that the Tribunal had effectively made a finding that the police reports were not genuine.
Whilst it was acknowledged that it was not clearly stated, the finding concerning the genuineness of the documents must have seriously undermined the credit of the applicant and cast doubt on the veracity of her entire claim.
Given the importance of the police reports, it was submitted, the manner in which the Tribunal dealt with them was inadequate. In support of this submission, detailed analysis was undertaken of the documents relied upon by the applicant. Specifically, reference was made to the Tribunal's view, which was described as being "a fixed view" unsupported by any evidence from any source, that the pro forma statements at the top of the police reports indicated the date on which the report was made rather than when a copy of the report was sought. The Tribunal's belief was that the date at the top of one of the documents, namely 5 November 2005 was the date of the report. It was argued that, given the evidence at the Tribunal, there was no basis upon which the Tribunal could come to that conclusion. Reference was made to the Supplementary Court Book at p.16 line 30 to p.20 line 35 which relevantly provides:
“MR GENTILE: That can be cleared up very easily. So you made this report; it doesn't tell me when you actually went there to make this report.
INTERPRETER: That is in Singhalese. I saw the date.
MR GENTILE: Maybe you can tell me?
INTERPRETER: 17 February 2005.
MR GENTILE: That's the day of the incident but when did you make this report?
INTERPRETER: Same day.
MR GENTILE: But it says at the top that this is an extract from the information book and it doesn't say which police station, but it says that it's on 5 November, so ‑ ‑ ‑
INTERPRETER: They put the date of the day - on which day showed the copy.
MR GENTILE: But don't you think it's strange that a police report doesn't tell you what date it's recorded?
INTERPRETER: I would like to get a clarification. What do you mean by saying it's not in the report?
MR GENTILE: There is a purported copy of a report that you made to this police station, but it doesn't say what date you made the report and I find that very strange.
INTERPRETER: They indicate it saying that it is the complaint on 17 February 2005.
MR GENTILE: No, that's when the incident happened that you're complaining about. It doesn’t say that's when you made the report.
INTERPRETER: What do you say, that it is not in the English version?
MR GENTILE: Well, the English one is the only one I can read.
INTERPRETER: I would like to know whether there's any difference in the English one and Singhalese one.
MR GENTILE: Well, this is a certified translation, so I've got no reason to doubt that this is what the original is. You tell me if there's a date there when you made the report on the 17th.
INTERPRETER: In the Singhalese version it says - in the English there's a translation 17/12/2005.
MR GENTILE: Yes, I understand that. I keep saying to you, that is the date of the incident, about which you're complaining, but there is no date in there about when you made the complaint.
INTERPRETER: I don't know how they write it, but I could see that they opened a big book and then they took our statement and took it down.
MR GENTILE: Yes, but what worries me more is ‑ ‑ ‑
MS SINGH: Sorry, there's a second date at the bottom - "2005, February 17" - which doesn't appear to have been fully translated because that date is left out. It's in that paragraph at the bottom. Perhaps if it could be read out. There's a reference to 17 February in the main paragraph, and then in the bottom paragraph there's also another reference to 17 February. So I'm assuming that that is the date that the report was made, but perhaps the interpreter could read it out.
MR GENTILE: See that paragraph there. Can you read that out in Singhalese? No, I wanted you to interpret, I don't want you to translate it; that's why I asked her to read. So if you could read it a bit at a time.
INTERPRETER: "In my station CIB 11 350-105 90 2005 second month, 17th. Written on this date, Sub-Constable 452 Kumari.. I typed this letter (indistinct)
MR GENTILE: So the contention is that the translator has left off this date from that paragraph. If your husband got to Sri Lanka on 7 November, why is this dated 5 November?
INTERPRETER: I would like to see that. I got a fax from him. He had gone to Sri Lanka on 9 November.
MR GENTILE: At the top it says 5 November.
MS SINGH: Do you know what that date ‑ ‑ ‑
INTERPRETER: Maybe the date of issue ‑ ‑ ‑
MS SINGH: Can we check the date of the other translation as well, to see if that's also ‑ ‑ ‑
MR GENTILE: The date is quite clear on the original.
MS SINGH: Yes, I know but ‑ ‑ ‑
INTERPRETER: There are two.
MR GENTILE: The one about your husband?
MRS WIJEWARDENA: Yes.
MR GENTILE: The date on this one is 15 November.
INTERPRETER: He had gone on 9th.
MR GENTILE: That's why I'm asking you the question. This one was done before he got there?
INTERPRETER: This is the complaint which I lodged.
MS SINGH: Did your husband get both the reports at the same time? Did he ask the police for the reports at the same time or did he ‑ ‑ ‑
MRS WIJEWARDENA: (indistinct)
MS SINGH: The second report that relates to an assault on her husband - and I assume that was made on 15 November - I just wonder whether the extract of the other report was obtained on the same date.
MR GENTILE: Not according to ‑ ‑ ‑
MS SINGH: Yes, I understand.
MR GENTILE: And again, in this case there is no doubt even on the original of when this report was made. I'm just a bit worried about these documents, because I know that you can get any document in Sri Lanka if you pay for it, and so I have to ask you these questions and make sure that I'm satisfied that they're genuine documents.
INTERPRETER: In this one they aren't looking like that. If he paid the money they would have done a better job.
MR GENTILE: The point is that there is no indication of what police station is at the top. The only way you can find that out is by looking at the stamp at the bottom under the signature - on this one; on that one you can't even read it. Then it says, "Extract from the information book of" such and such police station, "information book number" such and such on the date, and this date should be the date of the actual record of what is in the book, not when it was issued. Do you see the top there?
INTERPRETER: They have indicated the date on which the copy was given.
MR GENTILE: Okay, it's not really logical, but - it purports to be a copy of what is in another book, and it should give a reference to where it is in the book and in fact it does, it says, "page 321" et cetera, but the date is a recent date, not the date of the occurrence.
MS SINGH: It's not a copy because it's a typed document, so it is an extract.
MR GENTILE: Well, it is a copy, it is a ‑ ‑ ‑
MS SINGH: No, but it's an extract, not necessarily a photostat copy.
MR GENTILE: No, no, it has been copied from the book by hand. This is the typical way that this happens. Somebody sits down and copies on a typewriter what is in the police book, because they can't take photocopies of it apparently.
MS SINGH: Yes, and hence that's why there's the date of the extract.
MR GENTILE: I'll think about that one, but to me it's not logical, because it's trying to describe where this extract is from. Could you interpret that, please?
INTERPRETER: At the bottom of the document they have indicated the date on which I made the complaint and signed.
MR GENTILE: Yes, on that one - we've gone through that, that's fine, but in that one there isn't any.
MS SINGH: Sorry, could we clarify what the date of the assault was?
INTERPRETER: When all this happened?
MS SINGH: Mm.
INTERPRETER: I can't tell you any more details about the ‑ ‑ ‑
MR GENTILE: All right. Can I have that one back.
INTERPRETER: Anyone can check, because they sign the big books and no‑one can change it.”
It was submitted that although the Tribunal is not required to accept what the applicant states uncritically, the interpretation of a foreign document is a matter requiring expertise. In the absence of expert evidence, it was submitted, the Tribunal was not entitled to form its own conclusions about the document simply on the basis of certain English words which appeared on that document. Further, it was submitted that a proper reading of the text of the report as translated (Court Book p.101) should be interpreted to mean that the complaint was a contemporaneous report of an event which occurred on 17 February 2005, and it was noted that on 5 November 2005, the date on the document, the applicant was then in Australia.
In support of the applicant's submissions, reference was made to Applicant M164/2002 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 16 (M164/2002), and in particular the following paragraphs,
“89 In its treatment of the process of review the Tribunal failed to accord the appellant the fair procedure required by the Act. There was no material before the Tribunal on which it could make the finding that the documents presented by the appellant had been fabricated for the purpose of the claims. The statement by the Tribunal that the documents were not genuine was a bare assertion. The Tribunal did not identify in any respect how the documents could be so characterised. This was not a case where the Tribunal, on proper grounds, had already determined that the substantive claims of the appellant were dishonestly made and, therefore, any documentary material that purported to corroborate those claims necessarily bore the same stamp. If an applicant’s claims are palpably fanciful, or important elements thereof are shown to be false, those circumstances will permit the Tribunal to disregard other material presented by the applicant in support of those claims. (See: Abebe v Commonwealth (1999) 197 CLR 510 per Gleeson CJ, McHugh J at [84]-[85]).
90 However, serious findings of forgery, fraud or perjury cannot be based on a superficial examination of relevant events and materials, particularly where the conclusion reflects no more than a suspicion held by the Tribunal, and where that suspicion remains untested by reasonable use of powers available to the Tribunal to have further enquiries made in exercise of the Tribunal’s inquisitorial function.
91 If the Tribunal fails to carry out a review proceeding that accords with practical requirements of fairness, it conducts a proceeding, and makes a determination, that is not authorised by the Act. That is to say the Tribunal does not have "jurisdiction" or authority to purport to make such a decision and the decision will be subject to judicial review by issue of constitutional writs. (See: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [5]-[9]; McHugh, Gummow JJ at [34]-[37]; Kirby J at [116], [127]-[128], [138]).
92 The Tribunal’s treatment of the documentary material relied upon by the appellant to support her claims tainted the review process with fundamental unfairness. For the reasons outlined above the decision of the Tribunal was not a determination made in accordance with the Act. (See: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 per Gummow, Callinan JJ at [32]; VEAL at [10]).”
Reference was made to the decision of Tamberlin J in the same case where His Honour added, after agreeing with the decision of Lee J referred to above, the following:
“117 A positive finding that documents are contrived or fraudulent is a strong adverse finding. Such a serious determination requires a proper foundation and a careful examination of all the relevant evidence bearing on the issue of credibility. A view that part of a claim cannot be accepted does not mean that any documents relating to that claim must be contrived or false and should be disregarded. Each of the documents should be examined and considered on its face and in context. If one or more supportive documents, when properly considered, are found to be genuine, this consideration may strongly support a finding that a claim is credible and has been made out. It may override an impression gained by the Tribunal that the claim lacks substance. A document accepted as genuine after proper consideration can be strongly corroborative of an applicant’s case. This is particularly so in cases concerning refugees, where documentary evidence may be of greater assistance than oral assertions in establishing facts which cannot, in any meaningful sense, be properly investigated by way of probative independent evidence. Of course, in some cases, there is country information which indicates that forgery of documents and fabrication of false documents is prevalent in that country or region. Such information is one matter to be taken into account. However, in the present case, several important documents have been dismissed without any proper investigation, examination or consideration. These omissions may have had a significant bearing when balancing considerations for and against a finding of lack of credibility.
118 I consider that the Tribunal did not properly deal with the claims made by the appellant in this matter. This is because of the critical role played by the finding on credibility and the importance of the letters, which, on their face, are reliable and supportive of the appellant’s case, and because of the failure of the Tribunal to make a number of simple phone calls to verify the authenticity of the documents. The failure of the Tribunal to deal with the case sought to be made by the appellant and the documentary evidence called for findings by the Tribunal as to the authenticity and weight of the documents. This was not done. To some extent, the reasons for decision reflect such a closed state of mind in relation to the claims of the appellant that there was, on the face of the reasons, ostensible bias. Consequently, there was a failure by the Tribunal to properly exercise its jurisdiction in such a way as to give rise to jurisdictional error. The two central documents raised were dismissed in a summary fashion without any proper consideration and the other comments in relation to the newspaper items and the references to "implausibility" support this conclusion. Had these documents been considered or inquiries made regarding their authenticity, there may have been a different finding on credibility.”
It was submitted that the Tribunal was required to do more than just simply dismiss the reports as in effect forgeries. A strong adverse finding of that kind required a sound basis, and it was noted the applicant's credit had not otherwise been destroyed.
The Tribunal ought to have acted upon its powers under s.427(1)(d) of the Migration Act or from its own resources to make further inquiries. Relevant information, provided it was on a pro forma document, and the nature of the information could have been readily discernible from a police station in Colombo in Sri Lanka.
For the purpose of this hearing, the applicant did not pursue issues arising out of the police report which referred to the husband (Court Book p.99), which appears with the heading "An Assault." Rather, emphasis was placed upon the other police report (Court Book p.101) with the heading "For Future Protection." It is in the context of the other report that a date appears both in the body of the report as to the date of the incident, namely, 17 February 2005, and another date, as evidenced in the extract from the Supplementary Court Book, appears to have been read out by the applicant in Sinhalese and then interpreted by the interpreter before the Tribunal as being the same as the date which appears in the body of the report.
It was argued that the Tribunal's finding that the applicant had failed to reiterate the claim of interference by the JVP politician and the manner in which it dealt with the police report in relation to the kidnapping threat and the extortion threats were "intermeshed" with the earlier s.424A point, although as I understood the submission, it was separately submitted that the Tribunal made an error in relying upon its own expertise as to the interpretation of the document. That expertise was beyond that possessed by the Tribunal.
It was argued that upon reading the Tribunal's decision, it appears that shortly after referring to the applicant's failure to reiterate an aspect of her claim the Tribunal then deals with whether the attempted kidnapping of her son actually occurred or was an embellishment. Whilst it was conceded it is not clearly stated, the ultimate effect of the Tribunal's findings is that the attempted kidnapping did not occur and was therefore a fabrication. It was conceded there is no express finding to that effect. Rather, the Tribunal does not accept that the document produced (Court Book p.101) is evidence of the events described therein. The Tribunal, it was submitted, then rejects that the report was collected by an uncle and relevantly states, as set out earlier in this judgment, the following:
“… The existence of this document, even if it were accepted as genuine, would only attest to a report being made to a police station and could not represent evidence of the events described therein having occurred.”
(Court Book p.146)
It is noted that during the course of submissions, counsel for the applicant accepted that the court would need to consider the decision of the Federal Court in M164/2002 in the light of s.442B of the Migration Act which had not been enacted at the time of the decision in M164/2002. It was submitted that the applicant does not simply rely upon the decision of the court in M164/2002 for the purpose of highlighting the importance of s.427(1)(d) of the Migration Act but also the importance of the Tribunal dealing with the claim. The claim includes in the present case, it was submitted, the actual police report. Whilst accepting there is no general duty on the part of the Tribunal to make an inquiry, it is open in the circumstances for the applicant to submit that in this instance the Tribunal did not even turn its mind to exercising its discretion to apply s.427(1)(d) of the Migration Act. It is relevant to set out that section which provides as follows:
“(1)For the purpose of the review of a decision, the Tribunal may:
(a) …
(b) …
(c) …
(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
…”
Hence it was submitted by the applicant that a failure to even consider exercising a discretion pursuant to that provision can itself be an error.
When making submissions concerning the police report which appears in the Court Book (English version, Court Book p.101) (Singhalese version p.102), the date at the top appears to be 5 November 2005. The significant date was the date in the body of the document, as referred to earlier in this judgment; namely, "2005.02.17," which appears in the body of the extract from the information book and which, it is clear from the Court Book Sinhalese copy (Court Book p.102), appears at the bottom of the document above the provision for the signature of the police officer. It is that further reference that was the focus of the submissions by the applicant and which was clearly a subject of the discussion set out in the extract from the Tribunal's transcript of hearing referred to earlier in this judgment.
Specific reference was then made, in relation to this issue, to an extract of the s.424A letter from the Tribunal to the applicant dated 13 December 2005 (Court Book p.103) where the court relevantly states:
“The document pertaining to your report about your son which you said your husband procured for you from the police appears to be dated 5 November 2005; you also presented evidence to the Tribunal that your husband arrived in Sri Lanka on 9 November 2005.
You indicated that the date on the top of both these documents represents the date on which they were issued whereas the Tribunal believes that this is the date in which the entry was made in the police book, the extract from which is then transcribed. In neither document is the name of the Police station filled in at the top.
These elements lead the Tribunal to question the authenticity of these documents and thus the events and issues they describe. Could you please comment on these observations as they are relevant to your case as they help the Tribunal to decide on the credibility of your claims.”
It was submitted that the applicant through her representative then replies to the Tribunal letter dated 13 December 2005 by facsimile message dated 3 January 2006. In that reply the following relevantly appears:
“There were queries raised in the hearing on 12 December 2005 regarding the authenticity of the documents, and regarding the fact that the documents did not state the place of the police station, and the date when the report was made. I pointed out at the meeting that there appeared to be information in the Singhalese documents that was not in the English translation, most notably the date one of the reports was actually made to the police.”
(Court Book p.105)
The author of that letter to the Tribunal then indicates that further inquiries from an interpreter and translation service would be made in order to get new translations of the documents and an extension of time for submissions was sought.
The second translation which was provided (Court Book p.118) again appears to omit the relevant date.
The Tribunal, it was submitted, then appears to consider a document partly in English and partly in a foreign language where there are conflicting interpretations, though it had evidence at the hearing read out by the applicant and interpreted in relation to a particularly critical aspect; namely, the date of the actual making of the complaint. It was submitted the Tribunal then interpreted the mixed English/foreign language document in a manner which effectively was more consistent than an expert dealing with the type of document.
It was submitted that it would have been a simple matter for the Tribunal to investigate the matter further and/or to at least consider exercising its discretion or otherwise deal with the claim made by the applicant by forming its own conclusions about the date on the document and the evidence of the applicant. Its failure to do so resulted in jurisdictional error according to the applicant's submissions.
The First Respondent's Submissions
The first respondent submitted that when dealing with this issue, the applicants have attempted to elevate the significance of the police report in the reasoning that led to the Tribunal decision. The characterisation of the significance of the reports, it was submitted, ignores the fact the Tribunal pointed out that even if it had accepted the police reports, they would have constituted nothing more than a prior consistent statement. Reference was made to the Tribunal's decision where it relevantly states, as set out earlier in this judgment, that the reports, even if accepted as genuine, "could not represent evidence of the events described therein having occurred".
The first respondent submitted the Tribunal's decision could not have turned upon its acceptance or rejection of the veracity of the police reports. It was submitted that once the true role of the reports in the Tribunal's reasoning is understood, then the suggestion that the Tribunal was under a duty to undertake inquiries as to the veracity of those reports cannot be maintained. It was submitted that the applicant's claim of an attempted kidnapping had been rejected by the Tribunal principally because the Tribunal found the timing of the claimed attack was not consistent with country information which indicated that political violence occurred around election times whereas the claimed attack occurred 10 months after an election.
The suggestion that the Tribunal's reasons involve a finding that the police reports were fabricated amounts to a criticism of the Tribunal for making a finding which it did not actually make. It was submitted this was done in order to apply the principles set out by the court in M164/2002.
The decision of the court in M164/2002, according to the first respondent's submissions, is distinguishable or, it was submitted, the court should not follow the decision as it is contrary to a High Court authority.
It was argued that M164/2002 is distinguishable as it has no application to the proceedings which are not governed by s.422B of the Migration Act. The reasoning of the court in M164/2002, and in particular the decision of Lee J, was based upon rules of procedural fairness. It was noted that Lee J in M164/2002 specifically referred to s.422B in the following terms where he said:
“… it is unnecessary to consider whether the provisions of s 422B could have any bearing on the construction of s 420 to be applied in this case or upon the extent of the steps the Tribunal may have to take to accord procedural fairness to an applicant for review in a given case.”
(M164/2002 at [78])
It was argued that s.422B removes the foundation for the reasoning in M164/2002.
The first respondent further submitted that the majority in M164/2002 suggested the Tribunal was bound on the facts of the case to exercise its power under s.427(1)(d) of the Migration Act and the existence of that power meant, absent of any good reason not to use the power, a failure to do so resulted in a failure to conduct a "fair proceeding".
It was submitted that that reasoning is now inconsistent with the decision of the High Court in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 (SGLB) where at [43] Gummow and Hayne JJ (with whom Gleeson CJ agreed) said:
“… whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s 42616 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.”
Reference was made by the first respondent to the decision of Callinan J in SGLB where at [124] His Honour stated:
“[124] Under s 427 of the Act, the Tribunal may require the Secretary to arrange, and report upon, any investigation or medical examination that the Tribunal thinks necessary with respect to a review.107 That does not mean that the Tribunal is bound to make particular inquiries or to obtain evidence on medical or other matters. There is nothing to suggest in this case however that the Tribunal failed, whether it was bound to do so or not, to make all appropriate and sufficient inquiries. The Tribunal was faced with a request by the respondent that the hearing proceed, which it did, and it was well aware of the possibility that the respondent was stressed and made due allowance for that. Even if the respondent had made a request that a particular psychologist or psychiatrist give evidence, the Tribunal was not obliged to comply with it.109 It certainly made no jurisdictional error in not undertaking further inquiries. It had a discretion and not an obligation to pursue such other inquiries, if any, as it saw fit.”
It is argued that the High Court authority, whilst acknowledging the Tribunal has a power, has held it is not required to exercise that power. Further, it was submitted, it is not for the Tribunal to make the applicant's case.
It was also noted that in M164/2002, Lee J placed weight upon s.420 of the Migration Act to support a suggested duty to inquire. It was submitted that M164/2002 should not be followed as the section only requires the Tribunal to act in a manner that is "fair, just, economical, informal and quick". Reference was made to the Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (Eshetu) where the court disapproved earlier attempts in the Federal Court to use s.420 to create substantive rights.
It was submitted that Gleeson CJ and McHugh J (with whom Hayne J agreed) explained in Eshetu that the provisions such as s.420 at [49] as follows –
“… are intended to be facultative, not restrictive. Their purpose is to free Tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to Tribunals. …”
Reference was made to the police report and it was submitted that once the Tribunal made a finding that there was no attempt to kidnap the applicant's son at all, it was not relevant to then consider whether there was political interference with the police investigation. It was conceded it may be relevant to investigate whether and when the police report occurred insofar as that bears upon whether or not there was in fact a claimed incident but it would not be material. Having found there was no incident, it was submitted, the Tribunal should then not proceed to make a finding as to a report in an investigation. In brief terms, it was agreed that the first respondent's submission essentially was based upon the proposition that if there was no event there would be no motive for finding any interference with the police process.
Reasoning
At the outset it should be indicated that the court accepts that the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 (Lay Lat) now applies. It is noted that in referring to the effect of s.422B, the court decided that it was intended that the subdivision which relevantly applied was intended to be a comprehensive procedural code containing detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule. Other aspects of the common law rule of natural justice such as the bias rule, the court held, would not exclude it. The decision of Lay Lat was applied by the same Full Court on the same day in SZCIJ v Minister for Immigration and Multicultural Affairs & Anor [2006] FCAFC 62.
I accept, as submitted by the first respondent, that the authority of M164/2002 has limited application. I further accept that the authorities referred to by the first respondent clearly indicate that there is a discretion with the Tribunal to consider requesting further information, for example from police in Colombo as to the significance of the various entries on the relevant police report, but that the discretion, whilst it exists, does not therefore become an obligation.
A failure of the Tribunal to make the inquiries, in my view, does not of itself constitute jurisdictional error.
A matter of more concern, however, as the submissions were made by the first applicant relates not to the failure of the Tribunal to exercise a discretion to make further inquiries before it made findings concerning the relevant police report but rather whether it failed to deal with the claim the applicant was making or exceeding its jurisdiction by forming its own conclusions about the wording on the document. It is recognised that the Tribunal was not assisted by either the original translation or subsequent translation as both failed to refer to the date. The date, however, was not in Sinhalese language but rather simply written as "2005.02.17" both at the bottom of the report and in the body of the report.
In considering whether the Tribunal had erred in its findings concerning the police report by thereby failing to consider the claim or indeed by taking into account an irrelevant matter, namely, the date on the top of the document, it is important to note the Tribunal's substantive findings of fact referred to by the first respondent. It is clear that the Tribunal has made a finding that even if the document were accepted as genuine, that would only attest to a report being made to a police station and could not represent evidence of the events described therein having occurred. That finding by the Tribunal does not appear to me to be particularly controversial. It is a finding which is reasonably open to the Tribunal regardless of the date upon which the alleged complaint was made. Further, even accepting the date asserted by the applicant, the Tribunal was then entitled to make a decision free of error as to the importance of the timing of the events when compared with country information relating to political violence around election times in Sri Lanka.
In its reasoning, the Tribunal also seems to make findings of fact free from error when it refers to the chronology of events including the request by the applicant's husband for an extract of the police report and observations about the report produced, not signed or authenticated but rather countersigned for accuracy by the person making a copy of what purported to be in the information book.
Ultimately, I conclude that the Tribunal has dealt with the police report in a somewhat unsatisfactory manner but effectively has given little or no weight to the report and reached its decision concerning the claim of alleged kidnapping and threats on the basis of other matters including the timing of those events and the applicant's movements, including a failure to leave Sri Lanka over a period of two months while she held a visa which would have permitted her to travel to Australia.
The unsatisfactory nature of the Tribunal's reasoning, in my view, is illustrated in the transcript to which reference has been made and, moreover, in the s.424A letter dated 13 December 2005 where the Tribunal incorrectly refers to the date on the document and the Tribunal's belief that the date on top of the documents is the date on which "the entry was made in the police book" and further observes that the police report did not have the name of the police station filled in at the top of the document. This, according to the Tribunal's letter, led it to question "the authenticity of these documents and thus the events and issues they describe".
In its reasons, the Tribunal does not refer to the confusion over dates leading it to doubt not just the authenticity of the documents but also "the events and issues they describe". Rather, the Tribunal appears to have noted that, if even accepted as genuine, the document would only attest to a report being made rather than evidence of the events described having occurred. It is the Tribunal's reasons which this court must consider, despite having reservations about the reasoning process which may be more accurately reflected in the Tribunal's s.424A letter. Whilst the court may suspect that the Tribunal rejected the letters not because they failed to provide evidence of the events but rather because the dates were inconsistent and that this may well have led the Tribunal to reject the totality of the claimed kidnap event, the Tribunal in its own reasons does not attribute that significance to the issues arising out of the confusion concerning the dates.
It seems to me fairly clear, without the need to seek any expert opinion, that there is a date in the body of the report concerning the kidnapping consistent with the date which appears and can be clearly read at the end of the document, both of which refer clearly to "2005.02.17." Hence this is not a case where the Tribunal, even if it was obliged to do so, needed to make any further inquiries.
In my view the Tribunal has proceeded to make findings where little or no weight was placed upon the police report and other factors were taken into account, and I am not able to conclude that the concern in relation to the date was conclusive, but rather the Tribunal, in a manner free of error, made a substantive finding that the claimed incidents did not occur. Once it had made that substantive adverse finding to the applicant, then in my view it follows that any other complaints about the Tribunal's reasoning process cannot be sustained, and I accept the submissions made for and on behalf of the first respondent in relation to this issue.
Conclusion
It follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 30 January 2007
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