MZXMX v Minister for Immigration
[2007] FMCA 1346
•10 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXMX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1346 |
| MIGRATION – Protection visa – whether jurisdictional error – application dismissed. |
| Migration Act 1958, s.420 |
| Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 Firuzibakhsh v Minister for Immigration & Multicultural Affairs [2002] FCA 982 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 |
| Applicant: | MZXMX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1306 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 29 May 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 10 August 2007 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr C.J. Horan |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be changed to “Minister for Immigration and Citizenship”.
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1306 of 2006
| MZXMX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant relies upon an amended application filed 6 February 2007. In that application, the Applicant seeks judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 30 August 2006. In its decision, the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant a protection visa to the Applicant.
The Applicant is a citizen of Sri Lanka who arrived in Australia on 14 August 2000. The Applicant's husband and two children were included in the application as members of her family unit. The Applicant claimed to fear persecution from the Liberation Tamil Tigers of Eelam ("LTTE"). The Applicant claimed that she and her family fled Sri Lanka because of threats from LTTE terrorists and alleged they had targeted her family and threatened to kill them for giving information about the terrorists to Sri Lankan police.
Specifically, according to the Tribunal decision, the Applicant's claim included the following:
“She lived in a flat in a big apartment building. One night they noticed some youngsters entering a dimly lit apartment, and have seen them on several nights since. The apartment was closed during the day, which made her (and her neighbours) suspicious. The applicant's husband alerted the police, who searched thoroughly in and around the (padlocked and apparently uninhabited) premises, and found documents revealing that the occupants (or visitors) were LTTE terrorists.
On 4 April 2000 the police arrested four persons suspected of being involved in violent activities. The next day the applicants received an anonymous call threatening to kill them and demanding that they mind their own business. But despite this the applicants continued to spy on the suspects and inform the authorities about them.”
(Court Book p.204)
According to the Tribunal decision, the Applicant then made further claims of more threats which occurred after this event, causing the Applicant and her family to seek alternative accommodation over a period of time, ultimately leading them to seek to travel to Australia. The Tribunal records that the Applicant claimed that Sri Lankan authorities were "powerless to control the acts of violence perpetrated by the terrorists".
The Tribunal decision
In its decision, the Tribunal correctly noted that a differently constituted Tribunal had affirmed the delegate's decision to refuse to grant protection visas. The Tribunal further notes that on 22 February 2006, a Full Court of the Federal Court set aside a decision of the Federal Magistrates Court which had upheld the Tribunal's decision and the Full Court remitted the matter to the Tribunal whose decision is currently under review by this Court.
In its decision, under the heading "Claims and Evidence", the Tribunal recited the background details set out earlier in this judgment though significantly then further states the following:
“The applicant said she had not been able to find the original newspaper reports at the library. Her sister went to the newspapers to search their archives but was unsuccessful. As to the question of how her husband's name came to be reported she said that even in the police there are people who support the LTTE. The Tribunal observed that if the applicant had been concerned about that report, it would have expected her to make enquiries about the source of the report closer to the time it was published.
The Tribunals said, again in reference to the letters, that it did not think the LTTE would refer to itself as a terrorist group. The applicant said they would do so, as they were not afraid of anything.
The Tribunal put it to the applicant that at the last hearing she and her husband gave different evidence as to where they lived from May. The applicant said that they lived with his mother in Kegalle for a time and then at various different places. The Tribunal said that the applicant husband had told the Tribunal that they lived at the applicant's mother's place from May until they left Sri Lanka. The applicant said she believed he had said it was his mother they stayed with. But they moved around like gypsies ...
The Tribunal summarised its concerns about the credibility of the applicant's claims. The applicant said when she left Sri Lanka she was only one and a half years short of having served 15 years with the US Embassy, which would have permitted her to go to live in the US. Also, her whole family was in Sri Lanka. She would not have left Sri Lanka by choice. It was still definitely dangerous to return. They could not even return when her father‑in-law died. She did not want to take the children back to a country at war. She supported herself in Australia and was no burden to the Australian government.”
(Court Book pp.208-209)
Under the heading "Findings and Reasons", the Tribunal significantly states:
"The Tribunal does not accept that the applicant was threatened by the LTTE or any other person in connection with having reported suspicious activity to the police…”
(Court Book p.209)
The Tribunal then made further specific findings which I accept are accurately summarised by the First Respondent's contentions as follows:
●The applicant ought to have been able to provide reliable contemporaneous evidence of their dealings with the police, the investigation and arrest of suspects, and the threats received [CB210.1].
●It was not readily understandable how the LTTE became aware that the applicant had reported them to the police [CB210.2].
●There were inconsistencies in the evidence as to when the first phone threat was received [CB210.3].
●The applicant was unable to say what had happened to the suspects that were arrested [CB210.3].
●The Tribunal was not satisfied that the newspaper reports and the letters from the LTTE were genuine [CB210.5].
●The applicants could not persuasively explain why they did not report the alleged threats to the police until 20 April 2000, or why the police information book extract did not mention any letters containing threats from the LTTE [CB210.7].
It is also relevant to note in the present case that the Tribunal made reference to evidence of the Applicant and her husband before the first Tribunal in the following terms:
“The applicants' responses to enquiries about their evidence reinforced the sense that her claims had been fabricated. The applicants claimed they had received a letter from the Ministry of Defence, in appreciation of their conduct. Not only was this letter not produced but the applicant could not even conjecture as to where it might be. The applicants gave discrepant evidence at the review stage as to when the first phone threat was received (the applicant's oral evidence, compared with the police information book extract). The applicant was unable to say what had happened to the suspects that were arrested (e.g. were they prosecuted, convicted, jailed) and furthermore seemed to have been completely incurious about this issue, which is not what the Tribunal would have expected given that the applicants claimed that it was because of these suspects that they had been subjected to a campaign of violent threats.”
(Court Book p.210)
Significantly, the Tribunal further considered letters provided by the Applicant from a priest and teacher and material from a police information book and relevantly finds:
“The Tribunal has considered the letters from the priest and the teacher, and the police information book, but gives them little weight as they report what the applicants have told them rather than bear witness themselves to the events in question. The letters from the relatives can be expected to be sympathetic to the applicant's quest for protection visas, and in any case they do not purport to explicitly verify the applicant's claims, but simply refer to situations of danger and safety.”
(Court Book p.210)
The Amended application
An accurate summary of the grounds relied upon in the amended application appears in the First Respondent's contentions as follows:
●the Tribunal failed properly to consider the newspaper article that named the applicant as the person who had given information to the police;
●the inconsistencies between the accounts of the applicant and her husband as to the places at which they had lived (prior to their departure from Sri Lanka) is an “unsatisfactory foundation for a finding that the whole of the applicant’s claims are untruthful”;
●the Tribunal’s finding that the letters from the LTTE were not genuine is “wrong”;
●there was no reference in the transcript of the Tribunal hearing to the receipt of a letter from the Minister of Defence in appreciation of the conduct of the applicant and her husband;
●the Tribunal “did not address” the applicant’s statement that, when she left Sri Lanka, she was only 1 ½ years short of having served 15 years with the United States embassy, which would have permitted her to enter and reside in the United States;
●the Tribunal failed to conduct a fair hearing; and
●the Tribunal made no reference to the availability of State protection.
Submissions
It is noted that the Applicant during the course of submissions relied upon various documents and, in particular, made reference to the supplementary Court Book which included a transcript of the first Tribunal's hearing on 3 July 2003 and a transcript of the second Tribunal hearing on 29 August 2006.
It is convenient to deal with the submissions from the parties under headings which I regard as accurately reflecting the ground sought to be relied upon in this application; namely:
·Failure to consider newspaper article and findings in relation to the letters from the LTTE
·Inconsistencies in evidence as to places of residence
·The letter from the Ministry of Defence
·The Applicant's service with the United States embassy
·Fair hearing
·State protection
·Other matters
Failure to Consider Newspaper Article and Findings in relation to the Letters from the LTTE
Applicant's submissions
The Applicant referred to a number of newspaper articles concerning alleged arrests of LTTE members. One article in particular (Court Book p.90) referred to the Applicant's husband by name as the source of information to police. It is noted the Tribunal acknowledged that reference in its decision (Court Book p.206).
The Applicant submitted that the Tribunal failed to properly consider the newspaper articles which clearly indicated the Applicant's family name as the source of information to police, resulting in the arrests of LTTE members. The Applicant specifically submitted as follows:
“The Tribunal's concerns was that pages were produced with no newspaper banner and were undated and this was not satisfactorily explained. In essence the tribunal is saying that this is a fabrication. Furthermore, the tribunal did not address the inherent inconsistency in a finding that the applicant and her husband fabricated a newspaper article to assist their case when the material said to be fabricated included an account that was at odds with the story they intended to present.”
It is relevant to note that the Full Court of the Federal Court in its judgment, when dealing with the decision of the first Tribunal in Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 (Applicant M164/2002), relevantly states:
“89In its treatment of the process of review the Tribunal failed to accord the appellant the fair procedure required by the Act. There was no material before the Tribunal on which it could make the finding that the documents presented by the appellant had been fabricated for the purpose of the claims. The statement by the Tribunal that the documents were not genuine was a bare assertion. The Tribunal did not identify in any respect how the documents could be so characterised. This was not a case where the Tribunal, on proper grounds, had already determined that the substantive claims of the appellant were dishonestly made and, therefore, any documentary material that purported to corroborate those claims necessarily bore the same stamp. If an applicant’s claims are palpably fanciful, or important elements thereof are shown to be false, those circumstances will permit the Tribunal to disregard other material presented by the applicant in support of those claims. (See: Abebe v Commonwealth (1999) 197 CLR 510 per Gleeson CJ, McHugh J at [84]-[85]).
90However, serious findings of forgery, fraud or perjury cannot be based on a superficial examination of relevant events and materials, particularly where the conclusion reflects no more than a suspicion held by the Tribunal, and where that suspicion remains untested by reasonable use of powers available to the Tribunal to have further enquiries made in exercise of the Tribunal’s inquisitorial function.”
As I understood the submissions on behalf of the Applicant, the second Tribunal has fallen into the same error identified by the Full Court arising from the first Tribunal decision.
First Respondent's Submissions
The First Respondent submitted that the Tribunal had requested the Applicant to provide further information in relation to the name of the newspaper or other documents "in which the articles were published and the date or dates of publication" (Court Book p.119-120).
It was noted that in response to that request, the Applicant relevantly stated:
“All these articles were given to me by my sister. She had seen them in a Sri Lankan newspaper in Sri Lanka and gave it to me, believing I would be interested in the articles and they would be of interest to me. I have no idea from which newspaper it originated from and my inquiries have proved fruitless.”
(Court Book pp.124-125)
It was submitted that the Tribunal questioned the Applicant about the newspaper articles (Court Book pp.208-209) set out earlier in this judgment.
It was submitted that the Tribunal had indicated that it was not satisfied that the news reports were genuine. It is useful to set out the following passage from the Tribunal decision:
“Furthermore, some evidence itself had been fabricated, which naturally affected the credibility of the underlying claims. There were documents purporting to be news reports about the case, but the Applicant was not able to provide the banner for any one of these reports. This was not satisfactorily explained. The Tribunal is not satisfied that the news reports are genuine. The letters from the LTTE are not genuine. They have been cut and pasted onto an old press release issued by the LTTE's Tamil Eelam HQ through its International Secretariat in London, (see for the form of the press releases issued by the LTTE in the days of the London Secretariat). Even if the local Tigers did write individuals in Colombo a threatening letter, it is highly implausible that they would do so in the form of the organisation's global press release. Furthermore, it is well-known that the LTTE calls itself a combatant in a war of liberation and resists designation as a terrorist group because this has consequences for their international operations, so they are unlikely to call themselves such in a threat letter (see for example Furthermore, the Applicant claimed it did not occur to her to keep the envelopes, and also that neither the letters nor the envelopes, and also that neither the letters nor the envelopes had been handed over to the police. This was surprising, if the letters created genuine fear.
Also, the Applicants were unable to persuasively explain why they did not report the threats to the police until 20th April. The police information book extract concerning the threats does not mention letters, which also was not persuasively explained, given that the Applicant claimed it was the letters that compelled them to go to the police. Furthermore, the Applicant claimed it was the letters that compelled them to go to the police. Furthermore, the Applicant parents gave inconsistent evidence at the first hearing, as to where they spent their time from May to August 2000. This suggests that they were not hiding from danger as claimed.”
(Court Book p.210)
It was argued by the First Respondent that the Tribunal "was required to assess and make findings as to whether or not the news reports were genuine". The First Respondent submitted that, "it was open to the Tribunal to reject the authenticity of the news reports, at least in the absence of any clear evidence as to their provenance". The First Respondent referred to the decision of Mansfield J in Firuzibakhsh v Minister for Immigration & Multicultural Affairs [2002] FCA 982 (Firuzibakhsh) where the Court states:
“… In my view, it was open to the Tribunal to conclude that the document is a fabrication. Its finding was based on reasons which were rational. It would be an exceptional circumstance that direct evidence of fabrication of such a document were available. Generally, a conclusion that a document is a fabrication is based on circumstantial evidence, matters such as its appearance, its context, its content, its timeliness, and the evidence surrounding its acquisition and presentation. The Tribunal has had regard to such circumstantial evidence as it considered relevant in the particular case.”
In the present case it was argued that it could not be claimed that the Tribunal had failed to consider the newspaper articles or that the findings revealed in relation to those articles demonstrate jurisdictional error.
Reasoning
In my view the Tribunal in this instance, unlike the first Tribunal, has carefully analysed the newspaper articles and reached a conclusion that the articles were not genuine. That conclusion, I am satisfied, was reasonably open to the Tribunal. Likewise, I am satisfied that the Tribunal was able to make a finding, free of error, that the letters from the LTTE were not genuine. It has done so by a comparison with other documentary material and, as with the evidence concerning newspaper reports, expressed its concern about those documents and reached a conclusion in a manner free of error. Whilst I accept that the finding in relation to the genuineness of the articles is a significant finding and is clearly a serious matter requiring more than simply a superficial examination of the relevant events and materials, I am satisfied in the present case that this Tribunal has undertaken its task in an appropriate manner and it could not be described as a superficial analysis.
Applying the decision of Mansfield J in Firuzibakhsh, it is my concluded view that the Tribunal in this instance has appropriately considered what might be described as circumstantial evidence, leading it to a conclusion that the documents relied upon were not genuine. In my view there is no error arising out of this ground and accordingly it should fail.
Inconsistencies in Evidence as to Places of Residence
Applicant's Submissions
The Applicant notes the Tribunal's reference to inconsistencies "between the accounts of the applicant and her husband as to the places in which they lived after the left their home in Colombo to reside with various relatives, before they departed for Australia in August 2000". The Applicant acknowledges the Tribunal was entitled to do that but then further submitted that "the Tribunal should have had regard to the fact that the differences in recollections concerned events that happened a number of years ago".
First Respondent's Submissions
The First Respondent submitted that the Tribunal in the present case raised with the Applicant the inconsistencies which arose in evidence before the first Tribunal and then reached a conclusion as part of its adverse credibility finding that the Applicant and her family were not in hiding during the relevant period as claimed. It was argued that this ground seeks impermissibly to pursue merits review.
Reasoning
In my view this ground impermissibly seeks to encourage the Court to undertake a merit review. The challenge made to the Tribunal's decision in relation to the inconsistencies between the accounts of the Applicant and her husband as to the places in which they had lived after departing from their home in Colombo seems to raise the question of a failure by the Tribunal to have regard to differences in recollection of events which occurred some time ago. That in itself does not provide a proper basis for asserting there has been jurisdictional error. The Tribunal is entitled to analyse the material before it and raise, as it has done appropriately, concerns about the inconsistencies and then reach a conclusion. It has done so, in my view, in this instance in a manner free of jurisdictional error.
The Letter from the Ministry of Defence
Applicant's Submissions
The Applicant noted that the reference to the letter from the Ministry of Defence was used by the Tribunal to "reinforce the conclusion that the claims have been fabricated".
To understand the Applicant's submission it is relevant to set out a further extract from the Tribunal's decision as follows:
“The applicants' responses to enquiries about their evidence reinforced the sense that her claims had been fabricated. The applicants claimed they had received a letter from the Ministry of Defence, in appreciation of their conduct. Not only was this letter not produced but the applicant could not even conjecture as to where it might be. The applicants gave discrepant evidence at the review stage as to when the first phone threat was received (the applicant's oral evidence, compared with the police information book extract). The applicant was unable to say what had happened to the suspects that were arrested (e.g. were they prosecuted, convicted, jailed) and furthermore seemed to have been completely incurious about this issue, which is not what the Tribunal would have expected given that the applicants claimed that it was because of these suspects that they had been subjected to a campaign of violent threats.”
(Court Book p.210)
The Applicant submitted that "the question has to be posed why would the Applicant keep such a letter when it has clearly not been established that she never had any intention of applying for refugee status when she received such a letter."
Reference was made to page 21 of the transcript of the second Tribunal hearing (Supplementary Court Book p.65) where the following appears:
“MR BREWER: So you never spoke directly with the media?
MR RAJAPAKSE: No, not at all.
MR BREWER: It seems to me highly unusual that the police acting on information received from someone about LTTE activity would actually reveal the name of those people to the press.”
(Transcript p.21 lines 20-27)
First Respondent's Submissions
The First Respondent noted that the Applicant in the initial statement provided with the protection visa application claimed to have received a letter from the Ministry of Defence "which expressed its appreciation for assisting the government by providing the information about the presence of terrorists" (Court Book p.31). The Tribunal, it was submitted, "subsequently requested the applicant to provide the original letter from the Ministry for Defence" (Court Book pp.119-120). The Applicant responded that she did not have a copy of the letter and did not know actually what she did with the letter (Court Book p.122).
It was submitted that the Tribunal in its reasons referred to the Applicant's claim to have received the letter from the Ministry of Defence and to the fact that she did not produce the letter, as indicated in the extract set out above.
It was submitted that there is no jurisdictional error arising out of this ground, having regard to the manner in which the Tribunal dealt with the claim.
Reasoning
In my view the Tribunal has properly explored this issue in a manner free of jurisdictional error. The Tribunal was entitled to request further information from the Applicant when exploring the claim in support of the protection visa by the Applicant that the family had received "a letter from the Ministry of Defence which expressed its appreciation for assisting the government by providing the information about the presence of terrorists" (Court Book p.31).
I can see no error in the manner in which the Tribunal explored that issue, or in its finding which has been set out earlier in this judgment, arising from the failure of the Applicant to produce the letter or to explain what might have happened to it after it had been received.
The Applicant's Service with the United States Embassy
Applicant's Submissions
The Applicant was concerned with the Tribunal's finding in relation to the period of service with the US embassy. An extract of the Tribunal's concern is set out earlier in this judgment which in brief terms involved the Tribunal noting that the Applicant had only "one and a half years" remaining in her service with the US embassy which "would have permitted her to go to live in the US".
The Applicant submitted that, "if the belief of the Applicant that she had such an entitlement was well founded, that circumstances had to be given due consideration by the Tribunal in assessing whether it was either likely or probable that the Applicant and her husband would construct a fraudulent scheme to attempt entry to Australia rather than wait 18 months for a right to enter the United States." The Applicant further submitted, "The Tribunal did not address any of the foregoing points."
Reference again was made to the transcript (Supplementary Court Book p.66) where the Tribunal, after considering the issue, stated:
“MS HAMILTON: Well, yes, I take your point, but it's not my task to determine why people leave their country.”
(Transcript p.22 lines 7-8)
The Applicant was then concerned with the Tribunal's reference to that issue set out earlier in this judgment.
First Respondent's Submissions
It was submitted that the Tribunal had regard to the claim made by the Applicant and acknowledged that the Tribunal expressly referred in its reasons to the Applicant's claim concerning service with the United States Embassy which was relied upon by the Applicant to demonstrate that she would not have left Sri Lanka by choice.
It was submitted, however, that the Tribunal had not accepted the primary claims made by the Applicant concerning the threats by the LTTE and therefore the matter of her service with the United States embassy was not "material to the Tribunal's decision". It was submitted by the First Respondent that "at best, the claim in relation to the applicant's service with the US embassy was potentially indirect corroboration of the applicant's primary claims." It was argued that it was then "necessarily implicit in the Tribunal's rejection of those primary claims that it did not accept a secondary claim as corroborative evidence".
Reasoning
Whilst the Tribunal may have expressed concerns and summarised those concerns in relation to the credibility of the Applicant's claim, and whilst it appears from the extract of the Tribunal's decision set out earlier that it did have regard to the short period of time within which the Applicant may then have an entitlement to reside in the United States, I accept, as submitted by the First Respondent, that the substantive rejection of the Applicant's claims relate to its rejection of the claims of threats from the LTTE.
It is perhaps unfortunate that the Tribunal in the transcript should state that it was not the Tribunal's task "to determine why people leave their country" as clearly in this instance the Tribunal has in fact proceeded to do just that by considering whether the claims of the Applicant were genuine and provided a proper basis for leaving Sri Lanka. However, it is the Tribunal's decision which I must consider and the reasons for decision in relation to this ground do not in my view reveal jurisdictional error.
Fair Hearing
Applicant's Submissions
The Applicant submitted that she was entitled to receive a fair hearing from the Tribunal pursuant to s.420 of the Migration Act 1958 ("the Migration Act").
It was argued that "the implied finding underlying the Tribunal's decision was the applicant and her husband had fabricated their story with documents of a dubious nature".
It was submitted that in this case, if the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an Applicant may point to a conclusion that the Tribunal has denied the Applicant the conduct of a fair proceeding.
It is noted that the Full Court of the Federal Court in Applicant M164 stated:
“68The implied finding underlying the Tribunal’s decision was that the appellant and her husband had constructed an elaborate fraud before they left Sri Lanka. If that were so there was substantial public interest in having that fraud exposed and, it may be assumed, a particular interest on the part of the Minister in obtaining information on whether the appellant and her husband had fabricated the documents or had obtained them from a source which manufactured such materials on demand, a circumstance of considerable importance to due administration of the Minister’s Department.
69That is to say, the confluence of the need for the Tribunal to provide a fair proceeding to the appellant with the public interest in an inquiry being undertaken into the provenance of the documents, made plain the reasonableness of the Tribunal exercising a power to have the Secretary to arrange for such an inquiry to be conducted. The Tribunal was directed by the Act to undertake inquisitorial procedures on behalf of the Executive and was empowered to take such steps necessary for that purpose whilst observing the requirements of procedural fairness. (See: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [23]-[24], [26]).”
The Full Court further stated in its decision the following:
“76If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s 427(1)(d).
77The obligation upon the Tribunal to conduct a fair hearing is confirmed by the terms of s 420 of the Act which, whilst instructing the Tribunal to provide a mechanism of review that is economical informal and quick and not bound by technicalities legal forms or rules of evidence, requires the Tribunal to ensure that the process of review is fair and just and states that the Tribunal must act according to substantial justice and the merits of the case.”
Presumably, the Applicant has relied upon the Full Court's judgment in formulating this ground.
First Respondent's Submissions
The First Respondent submitted that s.420 of the Migration Act "does not mandate specific procedures to be observed by the Tribunal" (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611).
In the present case it was submitted that there is "nothing to indicate the applicant was denied a fair hearing".
The Tribunal expressed credibility concerns with the Applicant during the hearing and the Applicant was aware of those issues which had otherwise been raised at the first Tribunal hearing and therefore had a full opportunity to address the issues.
It was argued that the Tribunal was not under any duty to then make further inquiries concerning authenticity of documents or to obtain further information.
Reasoning
In my view this ground should fail. The Tribunal, whilst clearly interrupting on a number of occasions in the transcript, has nevertheless explored the issues which were clearly raised both before the first Tribunal and the second Tribunal and which were then the subject of further material from the Applicant. It has done so in a manner free of error. It has not denied the Applicant a fair hearing. Instead it has expressed concerns about the material and then reached adverse credibility findings reasonably open to it on the evidence after giving the Applicant an opportunity to address those issues.
The extract from the decision of the Full Federal Court set out earlier, and, in particular, paragraphS 68 and 69 taken from the decision of Lee J, clearly states the relevant principles to be applied. In the present case, however, I am satisfied the Tribunal has provided a fair proceeding to the appellant as it has raised issues of concerns and has pursue those issues to the extent that it is required to pursue them according to law. It has given due consideration to the matters raised by the Applicant, some of which were apparently not given due consideration by the first Tribunal according to the Full Court decision.
It follows for those reasons that this ground should fail.
State Protection
This issue was raised by the Applicant as a matter of concern, though I accept that a complete answer to the issue appears in the First Respondent's submissions where it is argued that it was unnecessary for the Tribunal to consider whether state protection would be available where it has made a significant adverse finding in relation to the real chance of persecution of the Applicant and her family by the LTTE. It follows this ground would fail.
Other Matters
Applicant's Submissions
In the Amended Application the Applicant does refer in the particulars subjoined to ground 1 that "the evidence cited as given by the Applicant at the hearing on 29 August 2006 at page 8 & 9 of the Tribunal's decision is completely different to the evidence given by the Applicant as found in the transcript of proceedings".
During the course of submissions, reference was made to the Supplementary Court Book. To understand this claim it is appropriate to set out a further extract from the Tribunal's decision as follows:
“At a hearing held on 29 August 2006, the Applicant gave evidence. She said her husband was looking after their children. The Tribunal asked the Applicant what was suspicious about the people they reported to the police. The Applicant said there were men coming and going, different people all the time, not like residents. She did not know who actually owned the flat. It was about 15 metres away from her own. They were carrying things. She did not know what ethnic group they were, as she did not speak to them. The Applicants reported this to the police on the phone (she said the implication, in her most recent letter, that they went to the police and a record was taken of the their report, was wrong - this was intended to be a reference to their complaint about the threats). After they called the police, the police came and searched the premises. On the night of the 5th around 9 pm there was a threatening phone call from someone with a Tamil accent.”
First Respondent's Submissions
The First Respondent submitted that particulars were not provided of any alleged differences in relation to this matter and that the Tribunal's summary of the evidence set out in its decision appears to be an accurate summary of the evidence given at the hearing on 29 August 2006.
It was argued that the current judicial review application requires the Court to consider a different Tribunal decision to the earlier Tribunal and that to a large extent the Applicant's submissions appear to repeat criticisms made by the Full Federal Court of the first Tribunal decision.
Reasoning
The Tribunal has accurately summarised the claims and has done so in a manner free of error. It is of course important for a second Tribunal not to repeat the errors of the first Tribunal and, in my view, in this instance it has not done so. It has expressed concern about matters raised before the first Tribunal and perhaps it is unwise to do so given the sensitivity an Applicant may have in relation to the manner in which a first Tribunal may have dealt with the claims. It is a matter of some concern no doubt to an Applicant, particularly where the manner in which the first Tribunal dealt with the claim has been the subject of criticism by the Full Court of the Federal Court.
However, that does not mean that a second Tribunal should not have regard to the claims raised by an Applicant before the first Tribunal and nor should it fail to have regard to questions raised by a first Tribunal which were the subject of a response by the Applicant. In doing so, the Tribunal is taking into account a relevant part of the claim's history and is then able to explore that issue further with the Applicant, as would appear to be the case in the present application. Upon my reading of the transcript, the Tribunal has done no more than to bring to the attention of the Applicant concerns it may have had arising from claims made before the first Tribunal.
It would appear that the Applicant does seek to now rely upon the decision of the Full Court of the Federal Court by way of criticism of the second Tribunal when in fact those criticisms were directed towards the first Tribunal, and the task of this Court is to consider whether the second Tribunal in giving different reasons has failed to comply with its obligations or committed jurisdictional error. For the reasons given, in my view this ground and the other grounds should fail as I am not satisfied that the second Tribunal has committed jurisdictional error.
Conclusion
It follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 10 August 2007
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