MZXML v Minister for Immigration
[2007] FMCA 392
•8 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXML v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 392 |
| MIGRATION – Refugee Review Tribunal – failure to consider consequences of applicant being an LTTE informant – failure to consider consequences of applicant being unwilling to join LTTE – whether breach of s.424A – application allowed. |
| Migration Act 1958, s.424A |
| AppellantS395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] 124 FCR 276 |
| Applicant: | MZXML |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG1226 of 2006 |
| Judgment of: | Riley FM |
| Hearing date: | 20 March 2007 |
| Date of last submission: | 20 March 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 8 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Paul Connor |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the First Respondent: | Catherine L Symons |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
DECLARATION
The decision of the second respondent made in matter 060319742 is unlawful, void and of no force and effect.
ORDERS
There be an order in the nature of certiorari bringing in to court and quashing the decision of the second respondent in matter 060319742 made on 9 August 2006.
There be an order in the nature of prohibition prohibiting the respondents from giving effect to that decision.
There be an order in the nature of mandamus requiring the second respondent to rehear and determine, according to law, the applicant’s application for review of the decision of the delegate of the first respondent that was made on 9 August 2006.
The first respondent pay the applicant’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1226 of 2006
| MZXML |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application filed on 29 September 2006 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 9 August 2006. That decision affirmed a decision of the first respondent’s delegate refusing to grant a protection visa to the applicant.
The applicant is a 31 year old male citizen of Sri Lanka. His father is Tamil. The applicant arrived in Australia on 17 May 1999 as the holder of a student visa. That visa ended on 15 March 2003. On
7 December 2005, the applicant applied for a protection visa. On
27 March 2006, a delegate of the first respondent refused the protection visa application. On 10 April 2006, the applicant applied to the Tribunal for review of the decision of the delegate. On 1 September 2006, the Tribunal handed down its decision dated 9 August 2006 affirming the decision of the delegate refusing to grant a protection visa to the applicant. On 29 September 2006, an application for judicial review of the Tribunal’s decision and supporting affidavit was filed in this court. On 9 March 2007, the applicant filed contentions of fact and law and on 14 March 2007, the first respondent filed contentions of fact and law.
Initial claims
In his protection visa application and a supplementary statement submitted to the Department by letter dated 16 January 2006, the applicant set out the substance of his claims. The applicant claimed to be a Sri Lankan national of Tamil ethnicity. He claimed that in 1992, another student at his high school began to pressure him to join the LTTE. He said that in order to discourage the LTTE from trying to recruit him, he joined the army cadets. The applicant claimed that over a six year period he acted as an army informant, firstly, in the period 1992 to 1994 when he was a member of the army cadets, and, later, from 1995 to 1998, after he left school and prior to his father’s death. He said most of his communication to the army was “verbal and unofficial”. The applicant claimed that the army discovered he was a Tamil after his father’s death in January 1998 when a death notice appeared in a newspaper using his father’s Tamil name. He claimed that the army at that point stopped communicating with him, and soon after, the LTTE learnt he had been passing on information about them to the army.
In the supplementary statement, the applicant claimed that:
[11] … I was phoned by the LTTE at work in late 1998, and told that I would need to start gathering information for them now. They claimed that as I had betrayed them, that I now owed them. They wanted me to keep working normally, but pass on any information I could.
[12] My decision to come to Australia to study, and to apply for permanent residency, was because I was fearful that I would be forced to work for the LTTE. I was also fearful for my mother’s safety. The LTTE did not leave me any choice but to join them. They do not need to say that they will harm you, but it is obvious that they mean to, if you do not do as they wish. I knew that I could not expect any protection from the army if the LTTE became more threatening. Both the LTTE and the army believed that I had betrayed them, but the LTTE believed that I could still be useful to them.
The applicant claimed that after his arrival in Australia, he began to receive threatening emails from the LTTE. On 24 March 2006, the applicant forwarded to the Department copies of seven emails which he claimed to have received from the LTTE on 15 December 1999,
23 May 2000, 20 February 2002, 21 August 2002, 11 December 2002, 5 April 2004 and 26 January 2005. The emails stated that the LTTE knew the applicant had informed on them, demanded money and demanded that the applicant work for them either by fighting for them or by undertaking illegal activities for them. The applicant said this work would put his life in danger.
Evidence before the Tribunal
In a statutory declaration made on 7 July 2006 and filed with the Tribunal, the applicant said:
[17] While residing in Australia I have been contacted by the LTTE and urged to support them and threatened that if I do not financially assist them I should not return to Sri Lanka. I have not supported the LTTE in any way and believe that on return to Sri Lanka the LTTE would forcibly recruit me or kill me. I believe that the LTTE would persecute me both for my past informing activities and for my differing political beliefs which make me unwilling to join the LTTE.
By letter dated 13 July 2006, the applicant’s legal representative advised the Tribunal that:
The applicant has also asked us to confirm that we have assisted him contact Australian security authorities in relation to approaches the LTTE have made to the applicant in Australia. We confirm that we encouraged the applicant to provide this information to ASIO and have provided ASIO with this information at the applicant’s request. ASIO have advised that they will be in contact with the applicant if necessary.
At the Tribunal hearing on 14 July 2006, the applicant gave further evidence about his contact with ASIO, summarised by the Tribunal as follows:
The Tribunal asked the applicant if he had contacted ASIO about the approaches made by the LTTE. The applicant stated he was very scared about that and if he could be assured he would not end up in jail he was willing to co-operate and tell whatever he knew to the Federal or local police. The Tribunal asked the applicant if he or anyone from Asylum Seekers Resource Centre had approached ASIO. The applicant stated no but his lawyer had said they would not do anything to him because he had not joined them or killed anybody. The applicant stated as long as he could be given assurances as he was married now and his wife was pregnant. The Tribunal noted from the letter it received from Mr Clutterbuck recently it was unclear what had actually taken place regarding any contact with ASIO. It asked him if Mr Clutterbuck had spoken to ASIO on his behalf. The applicant stated when Mr Clutterbuck spoke to him yesterday he had told him if he could assure he was going to be there he would speak to ASIO but he said nothing. He told Mr Clutterbuck by all means he would speak to ASIO but he wanted assurances. The Tribunal had asked the applicant if he knew whether Mr Clutterbuck had told ASIO anything yet. He stated he bet he would have because he had stated if he wanted him to he would. He was not sure. The applicant stated he had not spoken to ASIO at this stage. He believed this would be arranged but was not sure when. The Tribunal asked the applicant if this was his idea. The applicant stated Mr Clutterbuck had asked him if he had been to the police and when he said no, he had asked him why and he had responded he was scared. Mr Clutterbuck had asked him if he wanted to and he said yes. The applicant stated his arrangement with Mr Clutterbuck was as long as he was present and he could assure him he was to go ahead and he would tell everything he knew. ASIO had not contacted him yet but he thought Mr Clutterbuck was in the process of contacting them.
Tribunal’s reasons for decision
The Tribunal accepted that the applicant’s father was a Tamil and that he had been approached by his school friend, “X”, in 1992 and asked to join the LTTE. The Tribunal accepted that the applicant joined the army cadets in 1992 in an attempt to have X and therefore the LTTE leave him alone.
The Tribunal considered the applicant’s claims to have provided information to the Sri Lankan army, saying that:
The Tribunal accepts the applicant may have given information he knew about [X] and his friends to his trainer whilst he was in the cadets, who told him he in turn would pass the information on to army authorities. The Tribunal accepts that all the information the applicant provided was given verbally and unofficially and was never acted upon, based on the evidence he gave in the hearing. It accepts after the applicant left school he continued providing information to his trainer, after he started working for a computer company which had a contract to service the computers in Colombo Army headquarters and met up with his former trainer in the cadets. The Tribunal accepts the applicant provided information to his former trainer, as well as another officer between 1995 and 1998, when his father died.
…
The Tribunal accepts after the applicant’s father (sic) death, his father’s death notice was published in the paper with his father’s Tamil name and the army therefore learnt he was from a Tamil background and stopped communicating with him. It accepts when the applicant rang the army following publication of the death notice, he was asked why he had concealed the fact he was Tamil and it accepts from that time on neither the corporal or the other officer communicated with him because they no longer trusted him.
However, the Tribunal did not accept that the army had told the LTTE the applicant had informed on them, saying that:
The Tribunal does not accept the army would have told the LTTE that he had been informing on them for the past number of years, as he claimed. It finds it implausible after a period of over 5 years in which the applicant claimed he had assisted the army by providing information regarding LTTE activities in Colombo, they would contact members of the LTTE to dob-in the applicant purely because he had not been honest with them. The Tribunal also does not accept the army informed the LTTE about the applicant’s activities in that it finds it far-fetched the LTTE would simply respond to this news by telling the applicant he owed them a lot and asking him to join them. The Tribunal refers to the country information cited above regarding the treatment of Tamils by the LTTE and their killing of informants, as well as the applicant’s own evidence regarding the disappearance of Tamil people who lived near him or worked with him and the particular situation of his cousin. Given this information, the Tribunal does not accept that if the LTTE had learnt the applicant had been providing information about their members and activities in Colombo to the army since 1992 they would have merely asked him to do a job for them and repeatedly ask him to join and attend meetings over a period of nearly 9 months. As the applicant himself identified in his statement to the Tribunal, it was well known if Tamils refused to assist the LTTE they would kill or forcible (sic) move the person to Jaffna. The Tribunal does not accept the applicant’s intelligence or the fact he spoke Sinhalese and had grown up in Colombo would have prevented the LTTE from acting against him for betraying them over such an extended period of time. The Tribunal accepts the applicant may have taken some time off work following his father’s death and accepts his leave may have been due to his subjective fear the LTTE may learn of his past activities of informing the army about them. However, as stated above, the Tribunal is not satisfied the LTTE or [X] ever learnt of the applicant’s activities providing information to the army. The Tribunal does not accept when the applicant returned to work in August 1998, he was subsequently contacted by [X] and confronted with the fact he knew he had been informing on the LTTE to the army and was asked him [sic] to join the LTTE and assist them by performing any particular tasks. The Tribunal does not accept the applicant was asked by [X] to obtain information about the changing of the guards at the naval base located near the Presidential Palace or that he was continually contacted by [X] and others up until he departed the country and asked to attend meetings and join the LTTE.
In relation to the applicant’s claims to have been contacted in Australia by the LTTE, the Tribunal said:
Given the Tribunal’s findings above, it is not satisfied the emails the applicant has received whilst in Australia have been sent by the LTTE. Although these emails refer to the applicant passing on information to the government, as discussed above, the Tribunal does not accept the LTTE have ever become aware of the applicant’s activities between 1992 and 1998 in providing information to two members of the army. Similarly, the Tribunal is not satisfied the applicant was approached by someone from the LTTE in Australia and asked to do fundraising for them in Melbourne. The Tribunal finds it implausible the LTTE would pursue the applicant to assist them in Australia when he had never joined them or had done anything to support them. The applicant suggested in the hearing the person who spoke to him came to Australia specially to see him and ask him to raise these funds. The Tribunal finds it far-fetched someone would be sent from Sri Lanka to ask him to do such a task, when according to the applicant’s evidence there were many supporters of the LTTE presently in Australia raising funds for them back in Sri Lanka. The Tribunal therefore does not accept the applicant was approached in Australia by a person from the LTTE in Sri Lanka to conduct fundraising for them in Melbourne.
With respect to the applicant’s claim about contact with ASIO, the Tribunal said:
Although it was suggested by the lawyer assisting the applicant that the applicant provided information about his contact with the LTTE to ASIO, the Tribunal is not satisfied on the evidence provided by the applicant in the hearing that any contact has actually made (sic) with ASIO. The applicant was unsure as to whether his lawyer had actually got in touch with ASIO as yet. Nor was there any indication given of exactly what information it was that he wished to provide to ASIO.
In conclusion, the Tribunal found that:
Based on the Tribunal’s findings above, the Tribunal accepts the applicant may have provided information to two officers of the army, verbally and unofficially, over a period of nearly 6 years from the time he was in the cadets at school and up until the death of his father. It accepts after the death of his father, the officers with whom the applicant communicated with (sic), no longer did so and the applicant had no further contact with them, at their insistence. The applicant did not claim he experienced any problems or difficulties from these two particular officers, the army or any other authorities. The Tribunal therefore finds the applicant does not face real (sic) chance of persecution from the army or the officers as a result of his ethnicity or any other Convention reason if he returned to Sri Lanka. The Tribunal is also satisfied the applicant does not face a real chance of persecution from the LTTE if he returned to Sri Lanka given that it does not accept the LTTE were informed by the army or anyone else about the applicant’s activities between 1992 and 1998. It does not accept the applicant was asked by [X] or any other LTTE member to join the LTTE, attend their meetings and perform particular tasks from August or September 1998 because he owed them for informing on them. For the reasons provided above, the Tribunal does not accept the applicant has been pursued in Australia and requested to assist the LTTE by raising funds or otherwise suffer the consequences upon his return to Sri Lanka. The Tribunal therefore finds the applicant’s fear of the LTTE is not well-founded.
Grounds of Review
In the application filed with the court on 29 September 2006, the applicant set out the following grounds of review:
1.The delegate acted without or in excess of jurisdiction, and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material.
Particulars
(i)The Tribunal found that the Applicant’s country of nationality is Sri Lanka and that he is a Tamil. The Tribunal also found that he was an informant – namely he provided information concerning the LTTE to Sinhalese Army authorities.
(ii)The Tribunal found that the LTTE was not aware of the Applicant’s activities as an informant and stated that “The Tribunal is also satisfied the applicant does not face a real chance of persecution from the LTTE if he returned to Sri Lanka given that it does not accept the LTTE were informed by the army or anyone else about the applicant’s activities between 1992 and 1998.”
(iii)The Tribunal asked the wrong question by examining whether anyone knew whether the applicant was an informant as distinct from inquiring as to whether the applicant held a well-found fear of being persecuted as a result of his status as an informant simpliciter.
(iv)Further, or in the alternative, the Tribunal failed to identify a relevant issue or ignored relevant material by failing to make a finding as to the likelihood of the applicant’s activities as an informant being discovered by the LTTE.
(v)Further, the Tribunal ignored relevant material or asked the wrong question by failing to inquire or make a finding as to whether the applicant would continue his activities as an informant if he returned to Sri Lanka.
At the hearing before this Court, the applicant was given leave to rely on additional grounds that had been addressed in his written contentions. Those grounds are:
1.The Tribunal failed to consider an essential element of the applicant’s application.
Particulars
The Tribunal made no findings concerning the applicant’s fear of persecution based on his unwillingness to join or assist the LTTE if he was required to return to Sri Lanka.
2.The Tribunal relied on information that was part of the reason for affirming the decision under review and did not give particulars of that information to the applicant contrary to section 424A of the Migration Act.
Particulars
The information is as follows:
(a)Electronic mail transmissions received by the applicant were not sent by or on behalf of the LTTE.
(b)The applicant was not approached by the LTTE in Australia.
(c)Neither the applicant nor his lawyer contacted ASIO concerning the approaches made to the applicant by the LTTE.
Ground 1: the consequences of the applicant being an informant
The applicant’s written contentions on this ground were as follows:
[9] Notwithstanding that it accepted that [the applicant] was an informant, the Tribunal found that his fear of persecution was not well founded because the LTTE was unaware of the Applicant’s activities as an informant:
The Tribunal is also satisfied the applicant does not face a real chance of persecution from the LTTE if he returned to Sri Lanka given that it does not accept the LTTE were informed by the army or anyone else about the applicant’s activities between 1992 and 1998.
[10] The Tribunal asked the wrong question by examining whether the LTTE knew whether the applicant was an informant as distinct from inquiring as to whether the applicant held a well-found fear of being persecuted as a result of his status as an informant simpliciter. [The applicant’s] status as an informant is sufficient to satisfy the “real chance” test formulated by McHugh J in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 429:
“an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as “well-founded” for the purpose of the Convention and the Protocol.
[11] The Tribunal failed to identify a relevant issue by failing to make a finding as to the likelihood of the applicant’s activities as an informant being discovered by the LTTE: see generally Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112.
[12] Further the Tribunal ignored a relevant issue or asked the wrong question by failing to inquire or make a finding as to whether the applicant would continue his activities as an informant if he returned to Sri Lanka.
The first respondent’s written contentions on this ground were as follows:
Asking the wrong question – misapplication of the ‘real chance’ test
[25] The applicant alleges at paragraph 10 of his contentions that the Tribunal asked the wrong question by examining whether the LTTE knew whether he was an informant as distinct from inquiring as to whether the applicant held a well-founded fear of being persecuted as a result of his status as an informant simpliciter. However, this contention proceeds from the false premise that the Tribunal had accepted that the applicant was an informant. Contrary to what is alleged in the applicant’s contentions, the Tribunal found only that the applicant may have given information to his trainer whilst he was in cadets and such information (if given) was communicated verbally and unofficially. The Tribunal fell well short of finding that the applicant had the status of an informer such as to inform any inquiry as to whether the applicant’s fear of persecution was well founded.
[26] The Tribunal applied the correct test. It found it implausible that the army would contact members of the LTTE to dob in the applicant. It did not accept that the LTTE had learnt the applicant had been providing information about its members and activities since 1992 and, it did not accept the applicant was approached in Australia by a member of the LTTE, describing this claim as “implausible” and “far fetched”. Whether read independently or in the context of the reasons as a whole, it is clear that the Tribunal did not harbour any real doubts about these fundamental aspects of the applicant’s claim. The choice of language employed by the Tribunal demonstrates that it was emphatic in its findings and accordingly no inference could be drawn that the Tribunal failed to appreciate that it should consider whether there was a ‘real chance’ that the applicant’s claim was correct.
[27] In this case, the following passage from the decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo [(1997) 191 CLR 559 at 576] is apposite:
It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.
In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.
[28] The first respondent submits that here, as in Guo, the Tribunal had no lack of conviction about its findings both as to the past and to the future and was likewise entitled to proceed to its ultimate conclusion without the need for speculation.
Failure to identify a relevant issue
[29] At paragraph 11 of his contentions the applicant alleges that the Tribunal failed to identify a relevant issue by failing to make a finding as to the likelihood of the applicant’s activities as an informant being discovered by the LTTE. This ground also fails for the reasons articulated at paragraphs 25 to 28 above. The Tribunal, once it had made findings with the requisite degree of conviction, was not required to engage in the line of questioning for which the applicant contends.
[30] The reference to the decision of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs takes the applicant’s submission no further. The facts of that case and the ultimate finding of the High Court do not bear in any way on the present application. In Appellant S395 the Court was asked to consider whether error attended a decision of the Tribunal that had been made on the assumption that an applicant for a protection visa could avoid persecution by modifying his or her conduct. The decision is authority for the proposition that it is incorrect to say that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm. The applicant does not contend that the Tribunal fell into error of this kind and it is difficult to see how this could be sensibly argued.
[31] The applicant alleges at paragraph 12 of his contentions that the Tribunal ignored a relevant issue or asked the wrong question by failing to inquire as to whether the applicant would continue his activities as an informant if he returned to Sri Lanka. Again, and for the reasons set out in paragraphs 25 to 28 above, the Tribunal was not obliged to ask this question. In any event, it was the applicant’s claim (which the Tribunal accepted) that the army did not want any information from him after its discovery of his Tamil ethnicity and had no further contact with the applicant after 1998, thereby effectively putting a stop to any informant type activities.
In oral submissions, the applicant noted that there was a conflict between the parties about whether the Tribunal had found that the applicant was an informant against the LTTE or whether the Tribunal had only accepted as a possibility that the applicant might be an informant, with the result that the Tribunal was not required to consider whether the applicant faced a real chance of persecution on the basis that he was an informant.
The applicant relied on the extracts from the Tribunal’s decision set out at paragraphs 10 and 14 above to say that the activities that the Tribunal accepted the applicant engaged in were the activities of an informant and accordingly, the whole thrust of the Tribunal’s findings was that the applicant was in fact an informant. Additionally, the applicant argued that the finding that the applicant “may have given information” should be treated as a finding that he had in fact given information. The applicant noted that the Tribunal accepted that the LTTE kills those who inform against it.
The applicant referred by way of analogy to the High Court’s decision in AppellantS395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112. The applicant relied particularly on paragraphs 18, 19 and 31 which appear in the joint judgment of McHugh and Kirby JJ and read as follows:
[18] The questions in these appeals are whether the Tribunal erred in law:
·by impliedly dividing homosexual men into two particular social groups - discreet and non-discreet homosexual men;
·by failing to consider whether the need to act discreetly to avoid the threat of serious harm constituted persecution; and
·by failing to consider whether the appellants might suffer serious harm if members of the Bangladesh community discovered that they were homosexuals.
[19] In our opinion, the Tribunal erred in law in each of these respects.
…
[31] In a case like the present, defining the particular social group and the type of harm feared is fundamental in determining whether a member of that group has a well-founded fear of persecution. Only by defining the group and its characteristics or attributes, actual or imputed, can a tribunal of fact determine whether the harm feared is well-founded and is causally related to the particular social group. [footnote: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1092-1093 [26]-[27], 1099 [69]-[72]; …] So in determining whether there is a real chance that a discreet or non-discreet homosexual man in Bangladesh will suffer persecution, consideration must be given to:
·the characteristics and attributes of the particular social group;
·the nature, severity and likely repetitiveness of the harm feared;
·the extent to which, if at all, the individual will encounter the harm feared;
·the existence of a causal relationship between the harm feared and one or more of the characteristics or attributes, real or imputed, of the social group; and
·the extent to which the individual can be expected to tolerate the harm without leaving or refusing to return to the country of nationality. [footnote: Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at 18-19 [55]].
The applicant argued that the Tribunal had erroneously stopped its inquiry after deciding that the LTTE had not already found out that the applicant was an informant and argued that the social group to which the applicant belonged was not Tamil informants whose activities are not known to the LTTE but the social group consisting of Tamil informants.
It was put to the applicant during argument that the Tribunal had said at page 25 of its reasons that:
The Tribunal does not accept that the army would have told the LTTE that he had been informing on them for the past couple of years. It seems implausible after a period of over 5 years in which the applicant claimed he had assisted the army by providing information regarding LTTE activities in Colombo, they would contact members of the LTTE to dob-in the applicant purely because he had not been honest with them.
The applicant was asked whether this at least implicitly amounted to a finding, with the passage of even more time since the applicant had left Sri Lanka, that it was implausible that the army would now tell the LTTE that the applicant had informed on him. The applicant conceded that the statement quoted above could at least implicitly amount to such a finding. However, the applicant argued that the applicant himself might inadvertently reveal that he had been an informer. The applicant also submitted that the Tribunal’s finding of implausibility just quoted was irrational and accordingly the Tribunal had not acted judicially in reaching that conclusion.
The first respondent said in oral submissions that the Tribunal had deliberately not found that the applicant was an informant and restricted its findings to the conclusion that the applicant “may have provided information”. The first respondent argued that if a person had the status of an informant there was an almost official quality to his or her role. The first respondent argued that the information in this case was provided only “verbally and unofficially”. However, the first respondent conceded that it was not possible to identify anything in the Tribunal’s decision that showed that it distinguished between an official informant and a person who simply provides information and also conceded that the Tribunal undoubtedly accepted that the applicant had engaged in some form of information giving activity.
The first respondent argued that S395 was not analogous to the present case and should be confined to its facts. The first respondent relied on paragraph 53 of S395 (per McHugh and Kirby JJ) and said that paragraph informs paragraph 18 upon which the applicant had relied. Paragraph 53 of S395 reads as follows:
[53] The Tribunal's findings on the attitude of Bangladesh society and the statements of the appellants indicate that they were discreet about their relationship only because they feared that otherwise they would be subjected to the kinds of discrimination of which Mr Khan spoke. If the Tribunal had found that this fear had caused them to be discreet in the past, it would have been necessary for the Tribunal then to consider whether their fear of harm was well-founded and amounted to persecution. That would have required the Tribunal to consider what might happen to the appellants in Bangladesh if they lived openly as a homosexual couple. Would they have suffered physical abuse, discrimination in employment, expulsion from their communities or violence or blackmail at the hands of police and others, as Mr Khan suggested were possibilities? These were the sorts of questions that the Tribunal was bound to consider if it found that the appellants' "discreet" behaviour in the past was the result of fear of what would happen to them if they lived openly as homosexuals. Because the Tribunal assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws of Bangladesh society, however, the Tribunal disqualified itself from properly considering the appellants' claims that they had a "real fear of persecution" if they were returned to Bangladesh.
In essence, the first respondent argued that the questions set out in paragraph of 18 of S395 only became relevant after the Tribunal had found that the applicants were required to conduct themselves discreetly.
In reply, the applicant said that there was nothing in the Tribunal’s reasons for decision that indicated that the LTTE would take retaliatory action against “official” informers but not against “unofficial” informers.
Consideration of ground 1
The first respondent’s written submissions concerning the “what if I am wrong?” test are misplaced. The applicant’s argument was not that the Tribunal had failed to consider the consequences of it being wrong about whether the LTTE had already discovered that the applicant was an informant, but that the Tribunal had failed to consider the consequences of the applicant being an informant as such.
It is clear that the Tribunal accepted that the applicant had provided information about the LTTE to two officers of the army over a period of nearly six years. The use of the words “may have provided information” does not detract from the other more strongly worded findings to the effect that the applicant had passed on information to the army about the LTTE. In any event, the finding that the applicant “may have provided information” is sufficient in itself to require the Tribunal to consider the consequences for the applicant of providing information.
The first respondent’s argument that there is a material difference, in the context of this case, between an official informant and an unofficial informant is completely spurious. The country information which the Tribunal accepted clearly indicates that the LTTE kills people who have informed against them. There is nothing in the material to suggest that the LTTE distinguishes between “official” informants and “unofficial” informants. Indeed, it would be very surprising if there were.
I understand that the police and other authorities, sometimes, for their own reasons, distinguish between official and unofficial informants. However, the authorities’ perception of the applicant was not the issue in this case. The issue in this case was how the LTTE might perceive the applicant, and what they might do to him.
In S395 at paragraph 90, Gummow and Hayne JJ said the following:
Further, as the reasons of McHugh and Kirby JJ demonstrate, the Tribunal can also be seen as falling into error by dividing the genus of homosexual males in Bangladesh into two groups - discreet and non-discreet homosexual males in Bangladesh. That false dichotomy also appears to have provided a basis for the reasoning of Kennedy J in R v Secretary of State for the Home Department; Ex parte Zia Mehmet Binbasi [footnote: [1989] Imm AR 595 at 598-599.]. (emphasis added)
At paragraph 80, their Honours said:
If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. …
To similar effect, McHugh and Kirby JJ said in paragraphs 40 and 43 of S395:
[40] … The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps - reasonable or otherwise - to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a "particular social group" if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.
…
[43] The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many - perhaps the majority of - cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
I do not accept that S395 is confined to its facts, which concern Bangladeshi homosexuals. S395 contains statements of general principle, such as, that the Tribunal errs if it divides a particular social group into overt and secret political dissidents, for example, or, by analogy, overt and secret informers. Such divisions, in the words of Gummow and Hayne JJ, are a false dichotomy. Applying S395 to this case, it was necessary for the Tribunal to consider whether the applicant, as a person who had informed against the LTTE, as opposed to a person who the LTTE already knew had informed against them, faced a real chance of persecution if he returned to Sri Lanka.
It was no answer to that question to say, as the Tribunal did, that it was implausible that the army had already told the LTTE that the applicant was an informer, and, by implication, it was implausible that the army would tell the LTTE in the future that the applicant had been an informer. I do not consider that the claim that the army had told, or would tell, the LTTE that the applicant was an informer can properly be written off as implausible. Leaving that aside, however, I accept the applicant’s submission that the LTTE could discover from a source other than the army that the applicant had been an informer, and that the applicant himself might inadvertently reveal that he had been an informer. The Tribunal needed to take that possibility into account.
The more fundamental question, however, is whether it is a harm amounting to persecution for the applicant to be obliged, at the risk of death, to maintain secrecy about his past activities as an informer and to live with the fear of being discovered. The Tribunal did not answer that question, and did not answer the question of whether the applicant as an informer, as opposed to an already known informer, faced persecution. As a result, the Tribunal fell into jurisdictional error.
Ground 2: failure to consider a claim
The applicant’s written contentions on this ground were as follows:
[13] The Tribunal failed to deal with an essential element of the applicant’s claim by not considering or making findings concerning [the applicant’s] fear of persecution based on his unwillingness to join and/or assist the LTTE if he was required to return to Sri Lanka. This was a constructive failure by the Tribunal to exercise its jurisdiction: Sellamuthu v MIMA (1999) 90 FCR 287. This error is particularly significant in this case in which the Tribunal appears to have accepted that:
… it was well known if Tamils refused to assist the LTTE they would kill or forcible [sic] move the person to Jaffna.
The first respondent’s written contentions on this ground were as follows:
[32] The applicant alleges at paragraph 13 of his contentions that the Tribunal failed to deal with an essential element of his claim by not considering or making findings concerning his fear of persecution based on his unwillingness to join and/or assist the LTTE if he was required to return to Sri Lanka. The applicant cites as evidence of this failure the apparent acceptance by the Tribunal of a statement made by the applicant to the effect that the LTTE would forcibly kill or move any Tamils who were resistant to their cause.
[33] However the use made by the Tribunal of this information does not provide evidence of any error in the Tribunal’s consideration of the applicant’s claims. The Tribunal used the information concerning the conduct of the LTTE as a means of reality checking the applicant’s claims. No error attended its approach. Further, it is clear that the Tribunal comprehensively considered, and dealt with, the applicant’s claims of persecution. It made findings in relation to each integer of the applicant’s overall claim, which led it ultimately to reject the applicant’s visa application. Accordingly, the decision of Sellamuthu v Minister for Immigration and Multicultural Affairs, which dealt with a failure to make findings on material questions of fact, does not assist the applicant. The first respondent notes in any event that this decision was concerned with the old section 476(1)(a).
The applicant said in oral submissions that the Tribunal simply failed to deal with the second limb of the last sentence of paragraph 17 of the applicant’s statutory declaration that was made on 7 July 2006 which reads:
“I believe that the LTTE would persecute me both for my past informing activities and for my differing political beliefs which make me unwilling to join the LTTE.”
The applicant said that the first limb of that claim was given a good deal of emphasis by the Tribunal, but the second limb was nevertheless a valid claim which needed to be considered.
The first respondent said in oral submissions that the applicant’s claims about his political beliefs had been subsumed in a finding of greater generality, being the finding that the LTTE would not pursue the applicant because they did not know he had provided information to the army about them. Moreover, the first respondent argued that the applicant’s claims almost entirely concerned his activities as an informant.
The applicant said in reply that although one limb of the claim was given more emphasis in the Tribunal proceedings, that emphasis did not abrogate the Tribunal’s responsibility to consider the other limb of the claim as well.
Consideration of ground 2
If a claim is squarely put or if it arises from the materials, it must be considered by the Tribunal: Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287. The Tribunal’s obligations in this regard are not obviated by other claims receiving more emphasis in the proceedings before the Tribunal. In any event, the emphasis a claim receives before the Tribunal is often a result of the Tribunal, rather than the applicant, concentrating on that claim. Although Sellamuthu was decided under the old s.476 of the Migration Act 1958 (“the Act”), there is no doubt that a failure to consider a claim constitutes a jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
It is clear that the Tribunal did not deal with the second limb of the applicant’s claims in the last sentence of paragraph 17 of the statutory declaration made on 7 July 2006. The Tribunal said in its conclusions that:
The Tribunal is also satisfied that the applicant does not face a real chance of persecution if he returned to Sri Lanka given that it does not accept that the LTTE were informed by the army or anyone else about the applicant’s activities between 1992 and 1998.
The Tribunal did not go on to consider what the LTTE might do to the applicant purely for reasons of his unwillingness to join them. The Tribunal failed to consider that question even though it accepted the evidence from the applicant that “it was well known that if Tamils refused to assist the LTTE they would kill or forcible (sic) move the person to Jaffna.” It is no answer that the Tribunal accepted this evidence only in the context of “reality checking” the applicant’s claims. The Tribunal, irrespective of the context, accepted the evidence. Accordingly, there was evidence which the Tribunal accepted that a Tamil whose political beliefs led him to refuse to assist the LTTE could lead that person to suffer serious and possibly fatal consequences. In such circumstances, the Tribunal was obliged to deal with the claim that the LTTE would persecute the applicant because he was unwilling to join them. The Tribunal did not do so.
It is also no answer to say that that the Tribunal made a finding of greater generality being the finding that the LTTE would not pursue the applicant because they did not know that he had informed on them. The finding purports to cover the field of harm inflicted by the LTTE on the applicant. However, it was made without any consideration of the claim that the LTTE would harm the applicant, not because he was an informant, but because he was unwilling to join them. For these reasons, the Tribunal fell into jurisdictional error.
Ground 3: section 424A
The applicant’s written contentions on this ground were as follows:
[6] The Tribunal appears to have accepted that [the applicant] received electronic mail transmissions but did not accept that they were from the LTTE (CB 178). The Tribunal did not accept that [the applicant] was approached in Australia by someone from the LTTE (CB: 178).
[7] The Tribunal also found that neither [the applicant] nor his lawyer contacted ASIO concerning the approaches made to [the applicant] by the LTTE in Australia (see CB: 178 and compare CB: 144).
[8] The information relied upon by the Tribunal in making the findings referred to in paragraphs 6 and 7 herein, were not given to [the applicant] for the purposes of section 424A of the Migration Act 1958 (“Act”) nor was he invited to comment for the purposes of section 424A. For example, had [the applicant] been informed of the ASIO matter under section 424A of the Act, he could have called evidence and/or provided further documentary evidence from his lawyer who did contact and make a report to ASIO: SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214.
The first respondent’s written contentions on this ground were as follows:
[20] The applicant alleges at paragraph 8 of his contentions that the Tribunal was required under s 424A(1) of the Act to give to him particulars of certain information. The ‘information’ is identified by reference to findings made by the Tribunal and set out in paragraphs 6 and 7 of the applicant’s contentions. These findings are expressed as follows:
(a)The Tribunal appears to have accepted that the applicant received electronic mail transactions but did not accept that they were from the LTTE;
(b)The Tribunal did not accept that the applicant was approached in Australia by someone from the LTTE; and
(c)The Tribunal found that neither the applicant nor his lawyer contacted ASIO concerning the approaches made to the applicant by the LTTE in Australia.
[21] The applicant contends that the information relied upon by the Tribunal in making the findings set out above was not given to the applicant in breach of s424A(1) of the Act. However, this contention cannot be sustained.
[22] In relation to finding (a), the Tribunal’s reasons make it clear that its conclusion as to the veracity of the applicant’s claim about the email correspondence was not based on any ‘information’ but rather represented the culmination of a deductive process whereby the Tribunal rejected a number of earlier claims that bore ultimately on its assessment of the source of the email correspondence. To the extent that the Tribunal’s finding was based upon an assessment of the email correspondence itself, such correspondence was provided to the Tribunal for the purpose of the review application. [Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214.] Accordingly, the Tribunal was relieved by the operation of s 424A(3)(b) of the obligation to notify the applicant of the particulars of this information.
[23] In relation to finding (b), the Tribunal emphatically rejected the applicant’s claim but did so by reference solely to the applicant’s account of what he said transpired in Australia, describing the account as both implausible and far fetched. The evaluative process engaged in by the Tribunal does not bear the character of ‘information’ and therefore stands outside the notice regime prescribed under s424A(1). [Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679.] Further, any material relied upon by the Tribunal in informing this finding would be excluded under s424A(3)(b) of the Act as material provided by the applicant for the purpose of this application.
[24] In relation to finding (c) the Tribunal concluded that it was not satisfied on the evidence provided by the applicant at the hearing that any contact had actually been made with ASIO. The Tribunal was not required in respect of this finding to furnish the applicant with any particulars of information. To the extent that its finding was informed by the applicant’s evidence, such information was provided by the applicant for the purpose of his review application and therefore was excluded under s424A(3)(b) of the Act. To the extent that the finding represented the Tribunal’s evaluative process as informed by deficiencies or lack of detail in the applicant’s evidence, this process did not bear the character of ‘information’ so as to invoke the notice requirement under s424A(1). [WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276.] The applicant’s assertion that he would have been able to provide the Tribunal with further evidence (both written and oral) regarding the ASIO contact does not take the matter any further. Either an obligation under s 424A(1) arises or it does not.
The applicant said in oral submissions that his third ground, which at one stage was expressed to be a natural justice point, was confined to a breach of s.424A of the Act. The applicant acknowledged that the thought processes of and the evaluations made by the Tribunal are not caught by the requirement to provide a s.424A notice. Nevertheless, the applicant submitted that the three matters mentioned should have been, but were not, put to the applicant under s.424A of the Act. In relation to the claim that information had been provided to ASIO, the applicant relied upon the letter reproduced in substance at paragraph 7 above from the solicitor for the applicant to the Tribunal in which it is stated that the solicitor had in fact contacted ASIO. The applicant argued that the Tribunal’s conclusion about the ASIO material was not open on the known facts given that Mr Clutterbuck, an officer of the court, had provided evidence that he had conveyed the relevant material to ASIO. The applicant argued that it was never put to the applicant under s.424A that the emails were fraudulent.
The first respondent argued that the Tribunal’s conclusions in relation to these matters were the result of its evaluation of the evidence. The first respondent referred to WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] 124 FCR 276 at paragraph 29 which reads as follows:
[29] We are also fortified in our conclusion that the matters sought to be relied upon by counsel for the appellant do not constitute "information", in the relevant sense, by the remarks of Tamberlin J in WABY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1091. An issue in that case was whether the RRT had failed to furnish the appellant with particulars in writing of information to which the RRT had had regard, contrary to s 424A. A matter relied upon by the RRT, and claimed not to have been particularised, concerned the evidence of a Mr Davoodi, a witness said to corroborate the appellant's case. His evidence was considered by the RRT and rejected. Tamberlin J observed at [15] to [18]:
"The submission for the appellant, in relation to Mr Davoodi's evidence is not, in substance, that he was unaware of the particulars of the information, but that the RRT did not inform him in writing as to the approach it would take in relation to the evidence of Mr Davoodi.
The RRT did not have any obligation to give information to the appellant, before making its decision, as to its reasoning process or its conclusions in relation to the inconsistency or unconvincing nature of the evidence of Mr Davoodi. The appellant had called Mr Davoodi and it was for the RRT to accept or reject his evidence or to give it such weight as it thought appropriate. It cannot be said in any way that the appellant was unaware of the nature and extent of the information.
It is well settled that in reasoning to its conclusion there is no obligation on the RRT to accept submissions as credible and it does not have to set out or provide to an applicant, prior to the making of its decision, its reasoning process in reaching a conclusion in order to enable an applicant to make further submissions in relation to a proposed line of reasoning. As the Full Federal Court said in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592:
"The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question." (Emphasis added)
This extract was cited with approval by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [194.]"
In relation to the information possibly having been provided to ASIO, the first respondent referred to page 10 of the Tribunal’s reasons which contains a summary of Mr Clutterbuck’s letter and also to page 18 of the Tribunal’s reasons where the Tribunal summarised the evidence given by the applicant at the Tribunal hearing: see paragraph 8 above.
Consideration of ground 3
The Tribunal did not accept that the emails had been sent by the LTTE to the applicant because the Tribunal did not accept that the LTTE had learned that the applicant had provided information about them to the army: see paragraphs 11 and 12 above. Accordingly, the Tribunal’s findings about the emails were not based on information, within the meaning of s.424A of the Act, but on the Tribunal’s general evaluation of the information provided to the Tribunal by the applicant. Pursuant to s.424A(3)(b) of the Act, the Tribunal has no obligation under s.424A in respect of information furnished by the applicant to the Tribunal. (Moreover, the delegate had not been satisfied that the applicant had received threatening emails in Australia: see paragraph 6 of the delegate’s decision. Accordingly, the possibility that the Tribunal would not accept that the applicant had received threatening emails from the LTTE was a matter that was “obviously open on the known materials”.) In these circumstances, there was no obligation on the Tribunal to furnish the applicant with a s.424A notice in respect of its evaluation of the emails. This ground is not made out.
Similarly, the Tribunal’s conclusion that the applicant was not approached by the LTTE in Australia was not based on “information” within the meaning of s.424A of the Act but on the Tribunal’s evaluation of the applicant’s evidence. (The claim that the applicant was approached by the LTTE in Australia was a matter which the delegate did not accept. Accordingly, it was a conclusion that was obviously open on the known material.) In these circumstances, there was no obligation on the Tribunal to send a s.424A notice to the applicant about these matters. This ground is not made out.
In relation to the information that Mr Clutterbuck said that he had provided to ASIO, the Tribunal did not accept that claim because the Tribunal considered that it was not supported by the oral evidence given by the applicant. The Tribunal’s summary of that evidence is set out at paragraph 8 above. The conclusion that neither the applicant nor his lawyer had contacted ASIO was not “information” within the meaning of s.424A of the Act, but an evaluation of the applicant’s evidence. (In view of the extensive questioning of the applicant on this matter, his own evidence that no one from the Asylum Seeker Resource Centre had approached ASIO, and his own evidence that he was unsure if Mr Clutterbuck had approached ASIO, it was obviously open on the known material that the Tribunal might not accept that Mr Clutterbuck had spoken to ASIO.) Accordingly, this ground is not made out.
Conclusion
As grounds one and two have been made out, and as there are no discretionary considerations to the contrary, the Tribunal’s decision must be set aside with costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 8 May 2007
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