MZXJQ v Minister for Immigration
[2006] FMCA 1189
•31 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXJQ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1189 |
| MIGRATION – Review of Refugee Review Tribunal decision – claim of denial of procedural fairness & failure to observe the law – Tribunal review of applicant’s credibility – requirement for Tribunal to give an invitation for the applicant to appear before it – no jurisdictional error found. |
| Migration Act 1958 (Cth), ss.425, 36, 91R, 476, 424A, 422B |
| Abebe v The Commonwealth 1999 197 CLR 510 Applicant M155 of 2004 v Minister for Immigration & Ors [2006] FMCA 544 Applicant NAFF of 2002 v Minister for Immigration & Indigenous Affairs (2004) 211 ALR 660 De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 at 367 Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1996) 162 CLR 24 Minister for Immigration & Multicultural & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) FCAFC 126 (SCAR) Minister for Immigration v Lay Lat [2006] FCAFC 61 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 Re Minister for Immigration & Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 Re Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasinghan (2000) 168 ALR 407 SZFRV v Minister for Immigration & Another (2005) FMCA 1485 VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804 WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 |
| Applicant: | MZXJQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 556 of 2006 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | 15 August 2006 |
| Date of Last Submission: | 15 August 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Krohn |
| Solicitors for the Applicant: | Mr. Weerakoon |
| Counsel for the Respondents: | Mr. Knowles |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 556 of 2006
| MZXJQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application to review the decision of the Refugee Review Tribunal. (“The Tribunal”) handed down on 24 March 2006. The Tribunal affirmed the decision of the delegate of the First Respondent to not grant a protection visa to the applicant. The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and therefore did not satisfy the criteria set out in s.36(2) of the Migration Act1958 (“The Act”).
Background
A convenient summary to the background to the proceedings was contained in the Respondents submissions. I adopt the following paragraphs from the first respondent’s written submissions for the purposes of this judgment.
“2.1 The applicant is a Sri Lankan citizen. On 23 May 2004, he entered Australia as the holder of a temporary business visa. He entered Australia using a passport containing a false name.
2.2 He applied for a protection visa on 21 June 2004.
2.3 He claimed that, if he retuned to Sri Lanka in the reasonably foreseeable future he faced a real chance of persecution from political opponents due to his support for and involvement with the United National Party (“UNP”) and an affiliated union, the Jathika Sewaka Sanganaya (“JSS”).
2.4 In a decision dated 10 June 2005, the delegate of the First Respondent refused to grant the applicant a protection visa.
2.5 On 20 June 2005 the applicant applied to the Refugee Review Tribunal (“The Tribunal”) for review of the delegates decision.
2.6 In support of his application, the applicant lodged various documents with the Tribunal.
2.7 The Tribunal conducted a hearing on 9 January 2006 and 15 February 2006. On each occasion the applicant was represented and gave evidence with the assistance of an interpreter.
2.8 On 4 April 2006, the Tribunal handed down its decision dated 24 March 2006, in which it affirmed the delegate’s decision not to grant the applicant a protection visa.”
The Tribunal’s decision
The Tribunal in its reasons summarised the “essence” of the applicant’s claim for refugee status as being a “well-founded fear of persecution in Sri Lanka because of his political opinions and activities” (CB 395).
The Tribunal accepted “that if an Applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt” (CB 395).
The Tribunal also accepted that:
“[T]he benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the Applicant’s general credibility.” (CB 395)
The Tribunal found that:
(a)the only reason the applicant obtained a false passport and falsified papers in an assumed name to travel to Australia was because he believed having been refused a visa in his true name by the USA embassy his application for an Australian visa would be similarly refused (CB 395);
(b)the applicant deliberately deceived: “(1) the Australian Embassy in Colombo in his application for an Australian visa; (2) the delegate in his primary visa application; and (3) the Tribunal (initially), about the fact that, in addition to the passport held in the (admittedly false) name of Anura Priyantha WIJESUNDARA Dissanayaka, he also held a passport in his true name” (CB 396);
(c)it was neither “credible or plausible that, as he told the Tribunal at the Tribunal hearing, he had not earlier mentioned the existence of this passport (and in fact, in his primary visa application, had denied its existence) was either because: he had not earlier been given the opportunity to mention it; he was not aware at the time of the last hearing that his father was now in possession of this passport; or that his father had been given “back” the passport by a friend of the Applicant’s with whom he had shared the house in Colombo; or that whilst in Colombo he had problems with thefts, and that during “these problems” the passport got “misplaced”; or that on 16 March 2005 (sic) a group had forced its way into his place and attacked him and that his passport was “lost” at this time” (CB 396);
(d)in relation to the applicant’s claim that “he was compelled to leave Sri Lanka (and on a false passport) because of death threats and harassment he received at the hands of members of the Sri Lanka Freedom Party (SLFP) and the United People’s Freedom Alliance (UPFA) following the General Elections held in April 2004, and he also claimed to have been the victim of four separate attacks/incidents in Colombo during March 2004, as well as subjected to problems in his home village in April 2004” that the “passport issued in his real name was obtained in November 2003, and the Applicant acknowledged to the Tribunal that at that time (and whilst the UNP was still in government), he was having troubles in his workplace and wished to leave the country” (CB 396);
(e)any “work-related hassles he was subjected to at the end of 2003 were not sufficiently serious to amount to persecution as defined in s. 91R(1) of the Act” (CB 396);
(f)in relation to the documents “which purport to substantiate the Applicant’s claims that he was a victim of various violent incidents in March and April 2004” that it did “not give any of these documents any weight as the Applicant has an acknowledged willingness and capacity to acquire self-serving and false documents” due to “the alleged timing of these “incidents” (that is, several months after he had already decided to leave Sri Lanka)” (CB 397); and
(g)it was “not satisfied that any of these alleged incidents ever occurred or that they have not been fabricated for the sole purpose of establishing a claim for refugee status. I am satisfied the Applicant has no credibility” (CB 397).
The Tribunal concluded:
“[I]n summary, after careful examination of all the evidence before me, and in light of the foregoing, I am satisfied that the Applicant’s claim that he was compelled to leave Sri Lanka because of death threats and assaults which occurred after the General Election was called in March 2004, is a complete fabrication. Moreover, in light of the evidence that he had obtained 2 different passports prior to March/April 2004 and had decided in November 2003 that he wished to leave Sri Lanka because of personal and work-related issues, I am satisfied that he has never suffered persecution in Sri Lanka because of his political opinions or political activities” (CB 397).
Application for review of the Tribunal’s decision
The application the subject of these proceedings was filed on 27 April 2006. When the matter came on for hearing the applicant was represented by Mr. Krohn of Counsel and the respondents by Mr. Knowles.
The applicant sought and was granted leave to file a further amended application in Court on 15 August 2006.
The grounds of the applicant’s further amended application filed on 15 August 2006 were:
(1)Denial of procedural fairness.
The Tribunal fell into jurisdictional error in that it denied procedural fairness to the applicant.
Particulars.
The Tribunal failed to give the applicant an opportunity to know and deal with the possibility that the whole of his claim to have suffered persecution was a complete fabrication. As the Tribunal had sent correspondence dated 5 December 2005 to the applicant’s migration agent requesting documents including originals and translations of the documents relied upon in support of the claim to have suffered assaults and abduction in March and April 2004. (CB 270), and had also adjourned the hearing to enable those documents to be received by the Tribunal member in Sydney prior to the completion of the hearing, (CB 388.8) this gave an impression that the documents were matters to which the Tribunal would have regard and might serve as corroboration for his claims.
At the hearing, resumed on 15 February 2006 the Tribunal did not raise any issue that the documents relied upon supported the claim to have suffered assaults in March and April were false or contrived, and did not raise any issue about the veracity of those central claims. This was in contrast to the Tribunal making it plain at the resumed hearing that the identity of the applicant was in issue.
(2)Failure to observe requirements of the law.
The Tribunal fell into jurisdictional error in its failure to act in accordance with its obligations under the law.
Particulars.
Section 425 of the Act requires the Tribunal to give the applicant ‘to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review’. (sic) The Tribunal did not give an opportunity to the applicant to know all of the supporting documents relating to his assaults and occasions of complaints to the police were likely to be regarded as fabrications and that his whole claim of persecution might be regarded as a fabrication. In these circumstances there was not carried into effect an invitation to a hearing as required in Section 425.
(3)Relevant information.
The Tribunal fell into jurisdictional error in failing to have regard to relevant materials.
Particulars
The Tribunal had before it and indeed had requested numerous documents in English and in Sinhalese relating to the applicant’s claim of assaults and threats and his reports made to police in complaints. (CB 41.7, 43.1, 280-286, translations at 241, 244, 245-250). The Tribunal not only gave those documents no weight but gave them no consideration at all. It did not unlike the Minister’s delegate, (CB 76.3) refer documents to expert examination for consideration by the document examiner neither did it make any estimate or consideration itself of the genuineness of those documents, although the Tribunal was prepared to do so when it made its own assessment of the appearance of the applicant’s signature provided at the hearing when compared with the signatures on the applicant’s two passports, and prepared, at least in part, to base its finding concerning the applicant’s true identity on such an assessment. (CB391.6, 395.4).”
At the commencement of the hearing Mr. Krohn, on behalf of the applicant, sought to file an affidavit exhibiting tapes of the Tribunal’s hearing. Following discussion between the parties it was agreed that the Court would proceed to determine the further amended application on the basis of the following assumptions:
a)that at the hearing the Tribunal never asked the applicant whether his claims about assaults or abductions in March and April 2004 were false or contrived; and
b)that at the hearing the Tribunal never asked the applicant whether the documents provided by the applicant to the Tribunal in support of the claims of assaults or abductions at (a) were fabricated.
Mr Krohn on behalf of the applicant acknowledged that the first two grounds contained in the amended application could be conflated to one for the purposes of the hearing. Accordingly, the hearing proceeded on the basis that the applicant’s further amended grounds of review in paragraph 11 above were conflated and the allegations at paragraph 11 (a) and (b) combined.
No breach of the procedural requirements of s.424A of the Act was alleged.
A green case book (CB) filed on behalf of the respondents was taken into evidence and there was no issue between the parties that the material in the CB was the material before the Tribunal.
The law
The law is conveniently set out by Connolly FM in Applicant M155 of 2004 v Minister for Immigration & Ors [2006] FMCA 544 at paragraphs [23]-[26].
23Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
24The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
25Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act 1958 does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of Section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
26An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323).
Reasons
A Court on judicial review is not empowered to review the merits of an administrative decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. However, as set out earlier, where there is a jurisdictional error s. 474 of the Act does not operate as a bar to judicial review of decisions under the Act.
Given this, I now turn to a consideration of each of the grounds raised in the further amended application.
Grounds 1 & 2: Denial of Procedural Fairness / Failure to observe requirements of the law
It was submitted that the Tribunal was obliged to give the applicant an opportunity to deal with information which is credible, adverse and relevant to the decision to be made. The applicant submitted that the Tribunal was ready to and did raise difficulties that it had with issues concerning the applicant’s claim throughout the Tribunal’s two hearings. The applicant submitted that the Tribunal in making requests for the documents about assaults and abductions (referred to in paragraph 11 above) raised in the mind of both the applicant and his advisor that these documents would be important to the Tribunal. The applicant pointed to the Tribunal’s finding at CB 397 that:
‘Both the applicant and his migration agent lodged various documents with both the delegate and the Tribunal which purport to substantiate the applicant’s claims that he was the victim of various violent incidents in March and April 2004 (because of his political opinions and activities) which forces him to leave Sri Lanka. However, I do not give any of these documents any weight as the applicant has an acknowledged willingness and capacity to acquire self serving and false documents.’
The applicant submitted that s. 425 of the Act requires the Tribunal to give the applicant an invitation:
‘…to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.’
The applicant maintained the Tribunal did not give him an opportunity to know that the supporting documents relating to his assaults and abductions were likely to be regarded as fabrications and that his claim of persecution might be regarded as a fabrication. In these circumstances, it was submitted the Tribunal did not carry into effect an invitation to hearing as required in s.425.
In oral submissions Counsel for the applicant conceded that s.422B of the Act applied. On the basis that s.422B did apply, Counsel for the applicant nonetheless pursued a claim of a denial of procedural fairness. The claim being that, the Tribunal did not advise the applicant that his claims about assault or abductions in March and April 2004 were not true (or that the documents he lodged in support would not be believed). In doing so, it was submitted that the Tribunal compromised the ability of the applicant to present evidence or misled the applicant as to an issue likely to arise before the Tribunal.
It was argued that s.425 of the Act in effect required the Tribunal to alert the applicant to the possibility that his claims would not be believed and the documents in support of his claims of assaults and abductions in March and April 2004 would also not be believed. This failure to put matters to the applicant was said to constitute a denial of procedural fairness and hence jurisdictional error.
The applicant drew the Court’s attention to Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 (SCAR) at paragraph 37 which provides:
“On the other hand it is also clear that section 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation on the Tribunal to provide a ‘real and meaningful’ indication exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligation imposed by section 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill hearth: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140; BC 2003 00681. They also include circumstances where the statements made by the Tribunal to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804; BC 2002 03400”.
In short, and as submitted by the respondent, the applicant’s contention appears to be that the Court should hold that the common law natural justice rule is now contained in s.425.
In relation to this claim the respondents relied on the decision of the Full Court of the Federal Court in Minister for Immigration v Lay Lat [2006] FCAFC 61 (“Lay Lat”). The respondents relied on their written submissions at paragraphs 4.2 and noted that there was no allegation that there was any bias on the part of the Tribunal or (save for s.425) any breach of the other procedural requirements of the Act.
Counsel for the respondents submitted the Tribunal found the applicant had no credibility. The respondents pointed to the Tribunal’s finding that the applicant had deliberately deceived the Australian High Commission, the first respondent’s delegate and the Tribunal (at least initially) (CB 396). In doing so, Counsel for the respondents canvassed the history of the applicant’s claim before the first respondent’s delegate and the Tribunal and the Tribunal’s ultimate finding that it was not satisfied that any of the claimed “incidents” ever occurred (CB 397).
Finally, Counsel for the respondents submitted that the applicant had failed to point to any failure on the part of the Tribunal to comply with the procedural requirements of s.425 and that there was no allegation of a breach of s.425A.
Section 425 provides:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs of in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
There was no submission that subsections (2) or (3) were relevant for the purposes of this ground or that Tribunal had failed to comply with any other procedural requirement of the Act such as s.425A.
As was acknowledged by the applicant the effect of s.422B of the Act is to provide a statutory regime of procedural fairness. In Lay Lat the Full Court said at paragraph 66:
“What was intended was that Subdiv AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.”
The applicant was invited to attend a hearing and did attend along with his migration agent (CB 222-223, 294-295 & 388-395). He was provided with the assistance of an interpreter (CB 388 & 391). He had the benefit of assistance from his migration agent and of knowing the reasons why the delegate of the respondent had refused his application for a visa (CB 394).
The Tribunal’s obligation was to provide an invitation to the applicant to a hearing to provide an opportunity for him to present his case and then to properly consider the relevant material before it. This occurred (CB 223-224, 294-295 & 388-397). The applicant was on notice that he should send to the Tribunal any documents, information or evidence that he wanted the Tribunal to consider. (CB 223-224, 270 & 294-295).
The respondent in submissions drew the Court’s attention to Abebe v The Commonwealth (1999) 197 CLR 510, where Gummow and Hayne JJ stated at [187] and [188] that:
“The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
In this case the applicant knew that her claims about her detention and rape might not be accepted. The primary decision maker, the delegate of the Minister, said in the reasons for her decision that "... I do not find the applicant to be a reliable witness, and have grave doubts about her credibility, as in South Africa and at the Airport, the applicant did not mention that she had been raped or imprisoned in Ethiopia". After that, there could be no doubt that her story of detention and rape while in detention might not be accepted. And indeed her provision to the Tribunal of the statutory declaration dealing with inconsistencies in her accounts can be explained only on the basis that she and her advisers were alive to the difficulties in having what she said was the true account of events accepted by the Tribunal.”
These remarks are apposite in the context of the present case. The applicant and his representative would have been alive to the difficulties the Tribunal had in accepting the truth of what the applicant had said or claimed.
The applicant would have been put on notice of the relevant issue by way of the delegate’s decision record. At the time of the delegate’s decision the applicant and his adviser would have been aware that his claims about being the subject of assaults and abductions and his credibility (more generally) were in play. The delegate’s decision notes that (CB 84):
“…there are serious credibility concerns regarding the veracity of these claims.”
It is clear from the Tribunal's reasons that the applicant's credibility was very much in issue at the hearing before the Tribunal. The Tribunal had raised various adverse issues, including its concerns about the state of the documentary evidence in support of the applicant's claims and the applicant's credibility at the hearing and in its requests for further information (CB 388-395).
This is clear from the requests of the Tribunal for documentation and the decision of the Tribunal to adjourn the hearing (at CB 390). It is also clear from the request made by the Tribunal at the resumed hearing for the applicant to verify his “true” name and other details (at CB 391) and the questioning of the applicant by the Tribunal during the hearing as evidenced in the Tribunal’s reasons. (See for example CB 392 and 393).
The Tribunal’s account of the hearings, as set out in its reasons, shows that the Tribunal squarely raised its doubts regarding the applicant’s credibility with him and he was given the opportunity to comment.
The applicant was given many opportunities to address the credibility concerns the Tribunal had raised regarding his explanations and his claims. The Tribunal’s reasons indicate:
(a)requests were made of the applicant and his representative for documents in support of his claims (CB 388);
(b)queries were raised with the applicant concerning alterations to his primary visa application (CB 389);
(c)the hearing was adjourned to allow for documentation to be provided (CB 390);
(d)the details provided by the applicant (such as his “true” name and signature on documentation) were questioned (CB 391);
(e)queries were raised with the applicant regarding conflicts in his earlier evidence as to why he had been unable to obtain a passport in his own name (CB 392); and
(f)it raised with the applicant that his reasons for why he was unable to travel abroad in his own name were “difficult to believe” (CB 392).
The Tribunal notes that the applicant (CB 393):
“acknowledged that at the time he applied for the passport in his “real” name in November 2003, he had decided to leave his place of employment and go overseas.”
The Tribunal said in relation to concerns regarding the issue of why the applicant had a passport in his true name that (CB 396):
“I do not accept as either credible or plausible that, as he told the Tribunal at the Tribunal hearing, he had not earlier mentioned the existence of this passport (and in fact, in his primary visa application, had denied its existence) was either because: he had not earlier been given the opportunity to mention it; he was not aware at the time of the last hearing that his father was now in possession of this passport; or that his father had been given “back” the passport by a friend of the Applicant’s with whom he had shared the house in Colombo; or that whilst in Colombo he had problems with thefts, and that during “these problems” the passport got “misplaced: or that on 16 March 2005 , a group had forced its way into his place and attacked him and that his passport was “lost” at this time.”
In De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 at 367 the Full Court said:
"The governing word in section 425 (1) is “invite”. The purposes of the invitation is to enable an applicant to attend to the hearing so that he or she can give evidence and present arguments relating to the issues in the case. On the plain words of the subsection the obligation is to invite the applicant to appear. It does not impose on the Tribunal and obligation to identify issues and draw them to an applicant’s attention.”
Even if I accept in the applicant's favour that the Tribunal did not tell the applicant that his claims about assaults and abductions in March and April 2004 were not going to be believed and that the documentation provided by way of corroboration would not be believed, it cannot in my view be a fair characterisation of the invitation to appear, for the purposes of s. 425, in this case that it was a hollow shell or empty gesture: see Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31].
In fact the detail of the proceedings before the Tribunal show the Applicant had a “real and meaningful” opportunity. (CB 388 to 397).
On the basis of the history of this matter, it cannot be said that the applicant and his representative were unaware or could reasonably have been unaware that the Tribunal might regard the documentary evidence as unsatisfactory or might have concerns about the applicant's credibility. The various requests by the Tribunal for documentation along with the originals and translations thereof bare this out as do the Tribunal’s reasons: see. CB 222-223, 270 & 294-295.
Moreover as set out in paragraph 39 above the Tribunals reasons show the applicant’s credibility in relation to all his claims was at issue.
Unlike SCAR there is no suggestion that the applicant in this case was not fit to represent himself before the Tribunal. Indeed throughout the course of the Tribunal hearings the applicant was represented by a migration agent and assisted by an interpreter.
In WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 the Full Court of the Federal Court at [46] said:
‘There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward.’
There is no evidence that statements made by the Tribunal either prior to or at the hearings misled the applicant as to the issues likely to arise before the Tribunal: see VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. In fact the Tribunals reasons show the applicant’s credibility was a live issue at all times throughout the Tribunal’s hearing (see CB 396).
There is also no evidence that statements made by the Tribunal either prior to or at the hearings misled the applicant that he would have the opportunity to address certain inconsistencies identified in his evidence: see Applicant NAFF of 2002 Minister for Immigration & Indigenous Affairs (2004) 211 ALR 660 at [33].
In SZFRV v Minister for Immigration & Another (2005) FMCA 1485, Smith FM dealt with the test of the obligation to raise matters with an applicant so as to comply with the fair hearing rule.
“31. The test of the obligation to raise matters with an applicant so as to comply with ‘fair hearing rule’, was described by McHugh J. in Re: Refugee Review Tribunal; Ex Parte Aala (2000) 2004 CLR 82 at 101:
101. One of the fundamental rules of the friar hearing doctrine is that a decision maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It’s a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finings.
32. In my opinion assuming the obligation applied to the Tribunal in relation to the present matter I do not consider that the Tribunal failed to afford procedural fairness before giving weight to it’s opinion that there were discrepancies in the applicant’s claims. The discrepancy was apparent in the two statements made by the applicant to the Tribunal in support of his claims for protection. In my opinion ‘the risk necessarily inhered’ in the nature of the proceeding and the questioning of the Tribunal, that it might identity inconsistencies and draw adversely from them when assessing the truth of the claims. I therefore do not accept the premise of this ground of review: that there was a common law failure of procedural fairness assuming that the Tribunal was under relevant duties.”
Ultimately the Tribunal found itself in a position, in relation to the applicant’s claims about assaults and abductions in March and April 2004, where it was:
“…not satisfied that any of these alleged incidents ever occurred or that they had not been fabricated for the sole purpose of establishing a claim for refugee status.” (CB 397)
To suggest that the applicant was not on notice that he may not be believed requires one to ignore not only the Tribunal’s reasons but also the various written submissions made by the applicant and his representative in an effort to persuade the Tribunal otherwise: see for example CB 390-391.
I can not see on the material before me that the applicant was denied the opportunity to present his case or that the applicant was not aware of the relevant issues in determining his application. In my opinion the risk that the applicant’s claims about assaults and abductions in March and April 2004 and any documents in support of such claims would not be believed “necessarily inhered”.
In Abebe (supra) at [84] Gleeson CJ and Mc Hugh J said:
“The Tribunal was unable to accept the prosecutor’s account of her or her husbands arrest. Her answers to questions in relation to the husband and his present whereabouts were such that the Tribunal could not accept her account of his arrest. Given the inconsistencies and admitted lies in her various accounts, it is hardly surprising that the Tribunal was unable to act on her evidence concerning her arrest. What was particularly telling against her was the statement to the South African authorities when she was applying for refugee status that she had never been arrested or detained. The Tribunal was not bound to accept the prosecutor’s account of the alleged incidents. It was open to the Tribunal to find, as it did, that it could not rely on her evidence about her arrest and detention.”
Again these comments are apposite in this case. The Tribunal explained why it did not accept the evidence of the applicant. It based its conclusions on the applicant’s evidence, his unsatisfactory answers and that he had “an acknowledged willingness and capacity to acquire self-serving and false documents” (CB 397).
This is not a case where the applicant was misled as to what would influence the Tribunal’s resolution of the ultimate issue or that would suggest to the applicant his credibility was not an issue. In fact the converse is the case. Contrary to the submissions on his behalf the applicant was aware that he may not be believed.
The Tribunal in its reasons sets out the basis upon which it found the applicant had no credibility (CB 395-397). These findings were reached on the basis of the hearings to which the applicant had been invited, at which he had an opportunity to give evidence and provide arguments in support of his claim.
The Tribunal found the applicant could not be believed (CB 397). This decision plainly turned on the evidence given by the applicant at the hearing.
I conclude that there was an invitation for the purposes of s.425 to the applicant and, for the reasons set out above I find that the applicant had an opportunity to give evidence and present arguments relating to issues arising in relation to the decision under review.
Accordingly this ground is not made out.
Relevant information
The applicant submitted that the Tribunal had before it and indeed had requested numerous documents in English and in “Sinhalese” relating to the applicant’s claims of assaults, threats and abduction and his reports made to the police of those. The applicant submitted that the Tribunal not only gave those documents no weight but gave them no consideration at all. In the circumstances it was submitted the Tribunal should have considered the documents and a failure to take account of and review that material amounted to a failure to deal with an issue and as such a jurisdictional error.
The respondent pointed out that a failure to take into account a relevant consideration can only be made out if the Tribunal failed to take into account a consideration which it was bound to take into account in making its decision: see Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at [73]-[74].
The respondent submitted that ultimately the applicant impermissibly seeks to challenge the weight given by the Tribunal to items of evidence: see Minister for Aboriginal Affairs v Peko Wallsend Ltd (1996) 162 CLR 24 at 39-41. The respondent submitted that the Tribunal’s decision to reject the evidence was based on its finding that the applicant had no credibility: see WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 at 36.
In Re Minister for Immigration & Multicultural Affairs Ex parte S20/2002 (2003) 198 ALR 59, McHugh and Gummow JJ observed at 70 (49):
“In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weak and in cross examination that the Tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It can not be irrational for a decision maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences of a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reason of the Tribunal be read as indicating above the Tribunal is reasoning that, because the applicant can not be believed, it can not be satisfied with the alleged corroboration.”
In WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at [45] Nicholson J said:
“It is open to a Tribunal which is convinced that a principal witness is fabricating a story to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.”
The Tribunal in its reasons at made findings that the applicant had deliberately deceived the “Australian embassy”, the delegate in “his primary visa application” and the “Tribunal (initially)” (CB 396).
The Tribunal stated (CB 397):
“Both the applicant and his migration agent lodged various documents with both the delegate and the Tribunal which purport to substantiate the applicant’s claims that he as the victim of various violent incidents in March and April 2004 “because of his political opinions and activities” which forced him to leave Sri Lanka. However, I do not give any of these documents any weight as the applicant has an acknowledged willingness and capacity to acquire self serving and false documents.” (emphasis added)
The Tribunal however, did not leave the matter there. The Tribunal went on and said (CB 397):
“Given the alleged timing of these “incidents” (that is, several months after he had already decided to leave Sri Lanka) I am not satisfied that any of these alleged incidents ever occurred or that they have not been fabricated for the sole purpose of establishing a claim for refugee status. I am satisfied that the applicant has no credibility.” (emphasis added)
In this case it was for the applicant to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a refugee within the meaning of the Refugees Convention had been made out. The Tribunal for the reasons it set out was not satisfied (CB 395-397).
Clearly, the merits of the applicant’s case including matters of weight to be given to evidence and the applicant’s credibility are a matter for the Tribunal: see Minister for Immigration & Multicultural & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259.
The Tribunal was not required to set out all of the evidence before it or to give a line by line refutation of the material submitted by the applicant or indeed to give its reasons for the rejection of that material: Re Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasinghan (2000) 168 ALR 407 at [64]-[66].
As submitted by the respondent a failure to expressly mention a part of the competing evidence does not give rise to a jurisdictional error where, as here, the Tribunal has addressed the applicant’s claims: see Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [76].
The Tribunal referred to the various documents lodged with the delegate and Tribunal which purported to substantiate the applicant’s claims that he was a victim of various violent incidents in March and April 2004 (because of his political opinions and activities) which forced him to leave Sri Lanka. (see CB 397).
The Tribunal then set out its finding that the applicant had manufactured or “fabricated” his claim and was not a credible witness at CB 397:
“[H]owever, I do not give any of these documents any weight as the Applicant has an acknowledged willingness and capacity to acquire self-serving and false documents. Given the alleged timing of these “incidents” (that is, several months after he had already decided to leave Sri Lanka) I am not satisfied that any of these alleged incidents ever occurred or that they have not been fabricated for the sole purpose of establishing a claim for refugee status.”
After “careful examination of all the evidence” the Tribunal reached its conclusion that the applicant’s claims “that he was compelled to leave Sri Lanka because of death threats and assaults which occurred after the General Election was called in March 2004” were a “complete fabrication” (CB 397) .
The Tribunal said that it was (CB 397):
“…satisfied that the Applicant has never suffered persecution in Sri Lanka for a Convention-related reason and does not have a well-founded fear of so suffering in the reasonably foreseeable future.”
A fair reading of the Tribunal’s reasons shows that contrary to the applicant’s submission it dealt with all of the applicant’s claims and rejected the claims that he had been the subject of assaults and abductions in March and April of 2004. In doing so the Tribunal had regard to the relevant documents and decided to give them no weight.
The Tribunal found the applicant’s claims were not credible and rejected them. It did so after two hearings, a review of all the evidence and a finding that the applicant was not a truthful witness.
In this case, unfortunately for the applicant, the Tribunal’s reasons indicate its view that “the well [had] been poisoned beyond redemption”.
The Tribunal’s approach to the weight to be attached to any evidence was open to it, as part of its fact finding approach (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24 at 39-41).
Ultimately, the Tribunal was not satisfied the alleged incidents in March and April 2004 ever occurred “because the well [had] been poisoned beyond redemption” see Re Minister for Immigration & Multicultural Affairs Ex parte S20/2002 (2003) 198 ALR 59, McHugh and Gummow JJ observed at 70 (49).
On all the material before me the Tribunal made findings which were open to it on the material before it and for which it gave reasons.
Accordingly, and for the reasons set out above I find that this ground is not made out.
Conclusion
I am not satisfied that any of the grounds contained in the further amended application can be sustained.
Given this, I will make the orders set out at the beginning of these reasons.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Associate: J. Naughton
Date: 31 August 2006
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