NBBZ v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 838
•30 JUNE 2004
FEDERAL COURT OF AUSTRALIA
NBBZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 838MIGRATION – constitutional writ relief – applicant’s mode of entry into Australia in dispute – no entry record into Australia in applicant’s name – whether absence of evidence of entry record leads to inference in favour of applicant – Tribunal’s failure to make positive finding of identity of applicant – whether Tribunal’s failure to make further inquiries amounts to Wednesbury unreasonableness
Migration Act 1958 (Cth), s 424A
Judiciary Act 1903 (Cth), s 39BAssociated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
NBBZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR
N199 OF 2004
EMMETT J
30 JUNE 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N199 OF 2004
BETWEEN:
NBBZ
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
30 JUNE 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the first respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N199 OF 2004
BETWEEN:
NBBZ
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
EMMETT J
DATE:
30 JUNE 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant claims to be a citizen of Sri Lanka. On 15 October 2002, he lodged an application for a Protection (Class XA) Visa under the Migration Act 1958 (Cth) (‘the Act’). On 27 February 2003, a delegate of the first respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), refused to grant a protection visa and on 20 March 2003 the applicant applied to the second respondent, the Refugee Review Tribunal (‘the Tribunal’), for review of the delegate’s decision. On 9 January 2004, the Tribunal affirmed the decision not to grant a protection visa.
The applicant then applied to the Court for constitutional writ relief pursuant to s 39B of the Judiciary Act 1903 (Cth). The grounds upon which relief is claimed are that:
(a)the Tribunal erred in law in arriving at the decision to affirm the Minister’s decision in that it failed to consider relevant matters and failed to take into account relevant considerations;
(b)the Tribunal exceeded jurisdiction in arriving at its decision in that the applicant was not accorded natural justice;
(c)the Tribunal failed to comply with s 424A of the Act in arriving at its decision; and in the alternative
(d)the decision of the Tribunal was irrational in the sense considered in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
It will be necessary to consider each of those grounds separately. However, before doing so I shall say something about the findings made by the Tribunal and its reasons for those findings.
THE TRIBUNAL’S DECISION
The Tribunal was satisfied that the applicant is a Sri Lankan national, that he is Sinhalese, that he is a Roman Catholic, that he speaks, reads and writes English and Sinhalese and that he speaks Tamil. However, the Tribunal did not find the applicant’s evidence convincing or truthful.
The Tribunal recorded that, in his original application and in his evidence to the Tribunal, the applicant claimed to have arrived at Botany Bay on 26 August 2002 on a vessel known as ‘NYK Pride’. He claimed to have boarded that vessel as a stowaway in Saigon about nineteen days earlier. He claimed to have left Sri Lanka on a false passport and to have travelled by air to Bangkok, from where he travelled overland to Phnom Penn and then Saigon.
The Tribunal had evidence before it that, while the NYK Pride had indeed docked at Port Botany on 26 August 2002, it had not been in Saigon during the relevant period. When the Tribunal put to the applicant that it was not possible for him to have travelled from Saigon to Australia on the NYK Pride, he insisted that he had done so. The applicant was then given formal notice pursuant to s 424A(1)(a) of the Act of information received by the Tribunal from the NYK line. At a subsequent hearing after some weeks, the applicant gave evidence that he believed that he had boarded one ship from Saigon to Singapore and then, while hiding in a barrel, he was transferred from that ship to the NYK Pride and then travelled on the NYK Pride from Singapore to Port Botany.
The Tribunal did not accept that the applicant’s account of his journey to or arrival in Australia was a true or honest one. The Tribunal therefore did not accept that the applicant arrived in Australia as a stowaway on the NYK Pride. The Tribunal concluded that the applicant had set out to mislead the Department of Immigration & Multicultural & Indigenous Affairs (‘the Department’) and the Tribunal as to the circumstances of his arrival in Australia. The Tribunal was satisfied that the applicant’s claim to have been on one ship from Saigon to Singapore and then to have been transferred in Singapore to the NYK Pride was an invention.
The Tribunal did not consider the matter of the applicant’s arrival in Australia to be peripheral to his claim for protection. The Tribunal characterised the issue as going to the identity of the applicant and to his movements during the time in which he claimed to have been involved in incidents that led to his fleeing Sri Lanka. The Tribunal considered that it was likely that the applicant was seeking to avoid disclosing his passport, since his passport would reveal his past movements. The Tribunal stated that in its experience, ‘whilst uncommon, it is not unknown for applicants to claim to have arrived in Australia illegally in order to avoid disclosing a passport which, when discovered, reveals past movements inconsistent’ with claims made in connection with an application for a protection visa.
The Tribunal then went on to consider the applicant’s claims that he was unwilling to return to Sri Lanka because he fears that he will be harmed by the Ratwatte family and their associates. The applicant claimed that the Ratwatte family or their associates were responsible for an attack on him and his family in December 2001 in the course of which his father and brother were killed and he himself was injured.
In support of those claims, the applicant produced letters from family friends and a statement from a police officer. The Tribunal considered that it would be entirely consistent that a person who had deliberately set out to mislead the Department and the Tribunal as to his arrival in Australia would use his connections to procure such evidence in support of his application. The Tribunal therefore gave little weight to that evidence.
The Tribunal observed that the applicant’s claims were supported by his own evidence. It noted that, while the applicant had impressed some persons to whom he told his story, the Tribunal was satisfied that he had deliberately set out to mislead the Department and the Tribunal and that his actions, in so doing, have cast grave doubts on his credibility. The Tribunal did not accept that the applicant and his family were attacked by the Ratwatte family and their associates. It did not accept that the applicant’s father and brother were killed and it did not accept that the applicant had to flee Sri Lanka to avoid further attacks by the Ratwatte family and their associates, as he claimed. The Tribunal did not accept, on the evidence available to it, that the applicant would be at risk of any persecution should he return to Sri Lanka.
Thus, the Tribunal’s finding as to the lack of the applicant’s credibility underlies its rejection of his claims to fear persecution upon his return to Sri Lanka. The Tribunal’s finding concerning lack of credibility of the applicant was based on its conclusion that he had set out to mislead the Department and the Tribunal as to the circumstances of his arrival in Australia.
The applicant’s attack on the Tribunal’s decision is directed at the specific finding by the Tribunal that the applicant set out to mislead the Department and the Tribunal as to the circumstances of his arrival in Australia. The resolution of the issues raised requires a consideration of the material that was before the Tribunal and the hearing before the Tribunal, which was conducted on three separate occasions.
THE NYK PRIDE
In his original application form, the applicant answered a number of questions. He stated that he entered Australia as a stowaway on 26 August 2002 without a passport. In answer to the question whether he ever had or used a passport he said that he had used a Sri Lankan passport which was ‘given to smuggler in Bangkok’. He stated the name on the passport, which was different from his name as stated in the application.
In answer to a question as to how he left Sri Lanka, he said ‘Used false passport’. In answer to a question whether he had difficulties obtaining a travel document in his home country he said:
‘Used a false passport
- long delay in getting a genuine Sri Lankan passport’.In a typed statutory declaration dated 14 October 2002, the applicant made, inter alia, the following assertions:
‘20.On 5 December 2001 six men came to our house… I opened the door and was immediately hit on the head by an iron bar. A second person hit me on the collarbone and that was broken… My brother heard the commotion and came out…and he was immediately shot three times and was killed… My sister came out of her room and saw that I was injured and assisted me to escape through the back door and get in the car and we then drove away.
21.We looked back and saw my father being shot in the leg…
22.We went to my mum’s friend’s place who promptly took us to the doctor…
23.My mum’s friend was quite naturally scared and decided that we all should go to Colombo…
24.She knew someone who could assist us. He was a Tamil smuggler.
25.This friend went back to Kandy… She went to our home and got my sister’s passport. The smuggler arranged for my sister to leave Sri Lanka. I am unsure whether she used her genuine passport or whether she used a false passport obtained by the smuggler. She left Sri Lanka on 8 December 2001.
26.In my case, he obtained a false passport formally as I had never travelled out of Sri Lanka and thus had no passport. On 10 December 2001 I left the country and travelled to Thailand. I stayed in Thailand from 11/12/2001 to [sic] and left 16/7/2002. I stayed with a friend of the Tamil person who had arranged my travel out of the country.
27.The smuggler was the person who assisted my exit from the country. He was in front of me as we went through the departure and had hold of the passports and boarding passes.
28.The smuggler’s friend had a contact in Bangkok, another Sri Lankan Tamil, and I stayed there until my shoulder healed. Eventually he could no longer keep me and so he rang the smuggler’s friend and that is when the arrangements were made for me to leave Thailand on 16 July 2002.
29.I had to contact my mother’s friend in Sri Lanka and she contacted the smuggler to arrange where would go to from Thailand. She paid the smuggler some more money and he arranged for me to go to Australia.
30.I had to go by a very roundabout method.
31.I and four others, 3 men and one woman, left by lorry truck to Cambodia where we stopped a few times before we arrived in Phnom Penh. We then went by a boat through the Mekong and arrived in Saigon on 20 July 2002. The five of us stayed in a small room in Saigon. On 3rd of august 2002 two men left for Italy.
32.As I had no money, I had to remain with the Tamil person in Saigon.
33.One girl and one male as well as me were put on a ship that was going to Australia. The ship made about 6 stops on the journey from Saigon to Australia. Whenever it stopped I had to hide in a metal [sic] that had been used for storing oil. Otherwise I hid in the engine room with the other two people. During the trip to Australia all three of us were treated very badly. The man and the woman got off in Singapore. I continued on to Australia.
34.I arrived in Australia on 26 August 2002. It had taken about 19 days to travel to Australia and I hid in the engine [sic] for all of that time. Whenever we stopped at a port I had to hide in the barrel. One time I had to hide for two days.
…’
On 15 October 2002, the Department wrote to the applicant. After referring to his application for a protection visa, the letter said:
‘From the information provided in your application form, it appears that you may have arrived in Australia in an irregular manner and that you have bypassed immigration clearance procedures which are in place at designated air and seaports and prescribed places.
This Department is unable to locate an entry record for you based on the details you have provided.
You are requested to attend an interview with a Departmental Officer to clarify your arrival details and to determine whether you have been immigration cleared and are therefore an ‘eligible non citizen’. …’[Emphasis added]
It must have been obvious to the applicant, upon receipt of that letter, that the Department had no record of arrival in Australia of a Sri Lankan under the name provided by the applicant in his application for a protection visa.
On 30 October 2002 the applicant was interviewed by an officer of the Department. A minute of that interview records the following:
‘[The applicant] arrived by himself at Botany Sydney on 26/08/2002 by a boat. [The applicant] through a friend in Sri Lanka arranged this trip to Australia by paying 65.000 (Sri Lankan Rupees) to [a person] in Sri Lanka, who accompanied him upto Bangkok with a false Passport. [The applicant] boarded in a plane from Sri Lanka to Bangkok then paid another 120,000 (Sri Lankan Rupees) and boarded to the boat because [the applicant] has no passport. But [the applicant] didn’t mention any reason why he didn’t have his own passport and he admitted that there is no means of living in Sri Lanka so he chose this method to come to Australia.
…[The applicant] stayed at Bangkok for about seven months… when he was boarding the boat to Australia the rest of the money also given… He was given the money by his mother who is no more now.
The name of the boat was “Pride” mainly Asian and English crew in the boat. There were 3 people including [the applicant] in the boat travelling to Australia. It took 19 days to reach to Australia. A Chinese crew was providing them food.
…’In the delegate’s reasons, the delegate indicated that it was accepted as plausible that the applicant was targeted by a certain politician who was influential in Kandy and who was related by blood to the Sri Lankan president. The delegate accepted that the applicant ‘was targeted because of his being identified with the Muslim party and presumably with the Muslims as a whole’. The delegate referred to a report that indicated that, although Mr Ratwatte was influential in Kandy, he was not beyond the reach of the law. The delegate considered that the fact that Mr Ratwatte’s passport was impounded indicated that his victims could expect protection from the Government.
However, the delegate found that, even if it was accepted that it would be dangerous for the applicant to stay in Kandy, he could relocate to Colombo. The delegate observed that the applicant had stated that he studied in Colombo for a while. The delegate considered that the applicant could be protected from harm should he relocate to Colombo and that, since relocation was a viable option, it could not be said that the applicant was in need of Australia’s protection.
It is interesting, although probably irrelevant, that no mention was made by the delegate of the applicant’s claims that he arrived in Australia as a stowaway aboard the NYK Pride. The essence of the delegate’s decision was that, while the applicant’s claims were plausible, he was not entitled to protection in Australia because, by relocation to Colombo, he could effectively avoid any risk of persecution.
In support of his application to the Tribunal for review of the delegate’s decision, the applicant provided the Tribunal with handwritten statements purportedly made in Sri Lanka by two individuals (‘the Supporting Statements’). The applicant also provided a statement from the police in Kandy and a statement from a member of the Sri Lankan parliament concerning the applicant.
On the Tribunal’s file there are two documents recording the result of searches made of the Department’s records as to whether there is any record of the entry into Australia or a departure from Australia of a person with the name of the applicant travelling on a Sri Lankan passport. One document is dated 8 April 2003 and the other is dated 15 April 2003. Both documents indicate that there is no record of the Department indicating the entry into Australia of a person travelling on a Sri Lankan passport with the name of the applicant as set out in his protection visa application.
On 19 May 2003, the applicant attended a hearing before the Tribunal. At that hearing, Mr Graham Jones, a solicitor and migration agent with Refugee Advice and Case Work Service (Australia) Inc. (‘RACS’) attended with the applicant.
In the course of the hearing on 19 May 2003, the applicant was asked by the Tribunal about travel documents used to leave Sri Lanka. The applicant said that he had not travelled out of Sri Lanka before and that the journey described above was his first journey. However, when the Tribunal observed that it was fairly unusual for a relatively well to do Sri Lankan never to have travelled out of the country, he said that he used to go before he was 18 but went under his father’s passport. He said he never got to travel after he turned 18 because he was studying music and he was a bit busy. He claimed that he had never had his own passport.
The Tribunal asked the applicant how he managed to leave the NYK Pride in Botany Bay. The response was:
‘One guy called… there called George, he just helped me and then when I come [sic] out of the ship then he organised one container driver and I … hide in there, inside his, next to his driving seat, so then that’s how I got out of the harbour.’
The Tribunal asked whether George was someone from the ship and the applicant replied that he was.
On 23 October 2003, the Tribunal sent a facsimile transmission to NYK Line (Australia) Pty Ltd relevantly saying:
‘[The applicant]… has advised that he traveled [sic] on NYK Pride, possibly illegally, from Saigon to Australia via Singapore and a number of other ports, arriving in Botany Bay on 26 August 2002.
Could you please detail the movements of NYK Pride in August 2002.’
NYK Line (Australia) Pty Ltd responded by facsimile transmission of 29 October 2003 saying:
‘We confirm that the NYK Pride did arrive in Port Botany on 26 August 2002 and following is advice received from the current master of the vessel detailing all movements during August 2002.’
Attached was a copy of an email message from the captain of the NYK Pride indicating that the NYK Pride had departed Melbourne on 1 August 2002 and arrived in Singapore on 12 August 2002 via Adelaide and Fremantle. The ship left Singapore on 14 August 2002 and travelled to Sydney, arriving there on 26 August 2002, by way of Port Klang and Fremantle. The email concluded with the following:
‘Pls note there has been no reference whatsoever in the ship’s log of any stowaways on board during August 2002.’
On 3 November 2003, following receipt of that communication, the Tribunal, requested the applicant to come to a further hearing before the Tribunal on 7 November 2003. RACS requested an adjournment for two weeks because Mr Jones had recently resigned and the new case worker wanted to be given more time to familiarise herself with the details of the applicant’s case and to obtain instructions from him. The request was apparently declined and a further hearing was conducted on 7 November 2003. The applicant was accompanied at that hearing by an adviser and an observer from RACS.
In the course of that second hearing, the following exchange occurred between the Tribunal and the applicant:
Tribunal: ‘You told me… that you arrived in Australia on the NYK Pride and you travelled on the NYK Pride from Saigon to, via Singapore, Malaysia to Australia.’
Applicant: ‘Yeah. Three or four stops.’
Tribunal: ‘It’s not true is it?’
Applicant: ‘It is.’
Tribunal: ‘The NYK Pride wasn’t in Saigon in August.’
Applicant: ‘It was in Saigon.’
Tribunal: ‘That’s not what the shipping line tells us…’
Applicant: ‘I paid for this person and he organised me when I was there. I didn’t really have any time to check what the name and what is the captain’s name and everything. I was really after to look after myself.’
Tribunal: ‘The ship wasn’t in Saigon at that time…’
Applicant: ‘Then what’s the ship I was in? What’s the ship I came here on?’
Tribunal: ‘I don’t know. But perhaps you didn’t come on a ship.’
Applicant: ‘Then how did I get here?’
Tribunal: ‘Did you come on a passport?’
Applicant: ‘No, I am telling you the truth.’
Tribunal: ‘What you told me, that you came on the NYK Pride, I know is not true…’
Applicant: ‘It is true and...’
Tribunal: ‘Well I have spoken to the shipping line and they tell me that the NYK Pride – I have seen a list of its ports for August of that year. It wasn’t in… Saigon.’
Applicant: ‘I was, I got into this ship. Which I really don’t know that happened at night time. Because he told me it’s safer… to get into a ship at night time so I got into this ship at night and I had to go and stay in this little like a barrel thing all the time... then I had to get into this barrel he always moved it everywhere because he used to really, he was helping me as well. So, I exactly know the ship I got on that’s NYK Pride and that happened 26th August.’
Tribunal: ‘Its certainly true that the NYK Pride docked at Botany on the 26th August but it did not go to Saigon.’
Applicant: ‘[A man] works at Immigration Department. He called me, the root interview and checked everything and that proved that I will to Australia.’
Tribunal: ‘Well I am telling you what I’ve found out and that is that the ship did not go to Saigon. That’s what they’ve told me.’
Applicant: ‘Maybe that’s a mistake because I came here on the ship to Botany Harbour.’
Tribunal: ‘The Ship’s Captain looked at the log and it is unlikely that he has made a mistake.’
Applicant: ‘If I came here on a plane, I wouldn’t be hesitating to tell you I came here on a plane.’
Tribunal: ‘All sorts of reasons why that could happen… All sorts of reasons why people mislead about… as to the nature of their arrival.’
Applicant: ‘Do you think if I sound like I came here on ship because it’s a hard way to come here?’
Tribunal: ‘There are all sorts of reasons… I have been doing this for quite a long time and I’ve seen all sorts of reasons why people mislead the Australian Government and this tribunal as to the manner of their departure from their own country and as to their arrival in this country.’
On 12 November 2003, the Tribunal wrote to the applicant again, saying, relevantly:
‘You claimed to have travelled to Australia on the NYK Pride arriving in Port Botany, Sydney on 26 August 2002. You claimed to have stowed away on the NYK Pride in Saigon about nineteen days prior to 26 August 2002.
The information from the NYK Line seems to contradict your claims and raises the possibility that you have mislead [sic] [the Department] and [the Tribunal] as to your entry into Australia. If you have mislead [sic] [the Department] and [the Tribunal] as to your entry into Australia, the Tribunal may have to consider why you have done so. It may be that you did not enter Australia in this way but legally on your own passport which may raise questions about what such a passport could disclose.
The Tribunal has information that would, subject to any comments you make, be the reason or part of the reason, for deciding that you are entitled to a protection visa.
A copy of a fax from… NYK Line (Australia) and attachments are enclosed. If you wish to give your comments, please send your comments by 21 November 2003.’ (Emphasis added)
A copy of the letter was also sent to RACS.
On the same day, the Tribunal wrote to the applicant inviting him to come to another hearing to give oral evidence and present arguments in support of his claims. A third hearing took place on 27 November 2003. The applicant attended that hearing accompanied by his adviser from RACS and a friend and observer, who also attended.
At the further hearing, the third, on 27 November 2003, the following exchange took place:
Tribunal: ‘…I sent you a copy of the material from the NYK Line and gave you an opportunity to go away, consult with your advisers, before you responded. And this is your opportunity to respond…’
Applicant: ‘Well I clearly, what I think I really don’t know what’s it is like is it one ship or two ships. When I got into Saigon and there was one girl and one boy, and they told they are getting off in Singapore and when then they got off in Singapore I think it took maybe four or five days, because I was inside the ship and I never knew that its day or night, or what. When they got off Singapore I knew that its Singapore, so which I have told, given my first lawyer in my own handwriting. It says I was inside that barrel for nearly two days when this girl and boy get off there, Singapore I had to go and hide in that barrel, so I knew that could be Singapore. So after that there is another guy called George which he called himself and he helped me, and again I was inside this ship and it was quite different like which I see knew it wasn’t the same place where I used to be for three or four days so then I continued again.’
Tribunal: ‘You telling me now did you think you were on two ships?’
Applicant: ‘I already told you and my lawyer before…’
Tribunal: ‘…I read all the statements yesterday and I listened to all the tapes. There is no suggestion anywhere that you were on 2 ships. I have been back through it all… including listening to all the tapes again just to refresh my memory, no suggestion anywhere of 2 ships.’
Applicant: ‘But when I first went to RACS I had a different lawyer and he told me that I had to write down my statement, so I give it to him in my own handwriting and it saying that I was inside this barrel for two days and what will happen to me if I… but when he wrote down, when he typed there, like he typed it down not many evidence he put in my statement, but if you kindly read, can read that, you see like you will get the main point what I am talking about.’
Tribunal: ‘If you are going to rely on the instructions you gave RACS at the time I would expect to hear from the lawyer who took them and to see the original documents.’
Adviser: ‘I can provide the handwritten documents.’
Tribunal: ‘Who’s the lawyer who took the statement?’
Adviser: ‘He no longer works at RACS.’
Tribunal: ‘Well you’d better find him then I think.’
Applicant: ‘…I was really worried only thing about my life which I was concerned about from 5th December. I was only worried about my life, what was going to happen to me, so I mean, I really don’t have any, didn’t have any time to worry about whether I am in two ships or three ships or do I have to get off.’
Tribunal: ‘…I put it to you last time that you had come from Saigon to Sydney on that NYK Pride, you made no mention of 2 ships so it is only after three weeks to think about it since you mentioned 2 ships.’
Applicant: ‘All I can say about the ship I came to Australia I really didn’t ask what is the ship I’m going to get in, got into… Saigon because I was really worrying about my life… I would have asked everyone what’s the first ship I got into where I am going what the next stop and all the things, I mean if I really knew it was going to be like that I would have but all I was worried and concerned about my life... so that’s all I can do I did the best to come…’
The adviser then produced a document, apparently the handwritten statement referred to by the applicant. The following further exchange then occurred:
Tribunal: ‘It says you were in a barrel for two days… It doesn’t say anything about you noticing that you were in a second ship.’
Applicant: ‘I was worrying about my life, if I knew that I didn’t really worry about if it was 3 ships I didn’t know because I was inside this barrel.’
Tribunal: ‘You didn’t mention it when you were here last time that the ship hadn’t gone to Saigon...’
Applicant: ‘But as a refugee I have given all the documents which I have to say to my lawyer, so that’s my handwriting and I think if you read that from the start to the end you will find its totally different to the statement which, wrote like first lawyer.’
The applicant’s adviser then asked some questions of the applicant, after being warned by the Tribunal not to ask leading questions. The following questions and answers then ensued:
Adviser: ‘Could you please describe, the time, what your experience was in the barrel after the ship had stopped and then two people had left.’
Applicant: ‘When they got off at Singapore, like every time the ship stopped, he told me, the person who helped me to go and hide in this barrel so I just went in there and hide then I felt like it’s moving, like before when I was inside the barrel, I have like I mean, I felt like if someone moving you can feel that, but this time it was totally different, like I knew it’s moving and after it moved I was inside this barrel nearly two days.’
Tribunal: ‘How big was the barrel…?’
Applicant: ‘It was, I can sit inside that.’
Tribunal: ‘Like an oil drum?’
Applicant: ‘Like this, like I was sitting.’
Tribunal: ‘Why on earth would they be shifting an oil drum from one ship to another?’
Applicant: ‘I am not quite sure maybe because my friend got they, for these people to do this for me and he’s doing that for while I guess because he even Saigon Harbour he knew the people there.’
The Tribunal then made the following observations:
‘…I have got very very grave doubts that you came to Australia as you said you did. In fact I think its probable, although I haven’t come to a final conclusion about it, but I will go away and consider it all again, but I think its probable that you deliberately misled both the department and this tribunal... but why it’s important in this case… is that it seems to me that if you have deliberately misled this tribunal, it has been an attempt to deprive the Department and the Tribunal of the opportunity to examine your passport. Your passport is more than just a document that enables you to travel,… it’s a record of your movements and… you wouldn’t be the first applicant who has sought to um, to prevent the department or the tribunal having access to their passport to prevent either body being able to see where people were at certain times... Now I am going to give you another 15 minutes to have a chat to your adviser... I’ll tell you exactly how I see it right at the moment. That is that there is… the evidence of the attack on your family comes down to your own evidence, which you’ve given consistently... There is no independent press reporting of the attack on your family which is surprising given how well known you say your family is and how much reporting there has been of the activities of the Ratwatte family... I am going to give you another opportunity to talk to your advisers, there is no reliable independent evidence that the attack on your family took place, so the claim rests on your credibility… and… that’s why, in part… your credibility is so important and why the discrepancy between what you’ve said all along about your journey to Australia and what we know to be possible is so important…’
The hearing was adjourned from 11.30 am to 12.45 pm. When the hearing resumed the applicant made a relatively long statement, including the following:
‘…first I wasn’t really concerned about how like I’m going to get into Australia because after that first interview with Immigration my lawyer told me it’s like now it’s done, they don’t have anything to worry about so I really want to forget about the journey I came to Australia because it was not that good journey, so after that interview I really want to forget about that for my whole life. I want to erase that memory from my whole life... my first lawyer he said they are not going to concern about how it happened to you inside the ship and things, they only going to be worried about what happened to you and your family when you’re in Sri Lanka... All the time I was inside this ship and I felt like someone moving few times I felt like someone’s pushing the barrel. When he pushed the barrel I feel like… its not on a flat floor... I don’t know how to describe this floor but its like, like to stop from slipping so they put some iron things like when you push that barrel inside the barrel you can feel it’s moving... So then when I was inside there I felt again… I was moving then after a while, like after one and a half or two days I don’t know, I don’t have clock or anything to see what the time or what the date or anything so then when the other guy said right you can come out when I come out the first time... The first time when I came out it was Asian people, the second time when I was inside barrel after nearly two days then it was, he called himself George and he’s like Aussie, like English in you know what I call white people he is a white people man… and he had another friend but he had dark hair and but he’s white too, so then I knew I thought maybe the crew has changed but he said looks ok I am looking after you don’t worry about anything, and he was very good to me the first time he saw me…’
After a further 10 minute adjournment, the applicant continued, saying relevantly:
‘So, second time it’s dark haired white looking men. Then I knew its like at first I thought I’m in a different area of the same ship. I wasn’t really worried about its different ship or not so long as I am staying alive. So after that this guy came and gave me everything to eat and he said don’t worry about everything, everything was going to be alright and things he was being so very nice to me, I don’t know why it is that, so anyway, so then by this time inside I knew it was in a different area, all these pipes and like things going up and down and when I tried to find my corner which I used to stay before I got into that barrel for one and a half days or these 2 days, so I couldn’t find that place and I knew that I wasn’t in the different, same ship, maybe different side and then after the Asian guy he couldn’t really speak, he speak English but I can’t understand his English.’
The applicant’s adviser asked him why he didn’t bring up the description of his journey just given in his initial application. The applicant responded:
‘First time my lawyer he said they only worry about convention, it doesn’t matter what happened to you in the ship or it doesn’t matter that he said first time he said there is an interview with immigration.’
It is against the background of that evidence that the Tribunal made the findings and reached the conclusions summarised above. Against that background also, the applicant raises the four grounds upon which he claims orders in the nature of certiorari and mandamus against the Tribunal. I shall deal with each of the grounds separately.
FAILURE TO CONSIDER OR TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS
The relevant matters and relevant considerations that the applicant claims the Tribunal failed to take into account are:
- the Supporting Statements;
- the applicant’s statements made prior to 7 November 2002, in so far as they referred to the ship on which he was travelling stopping in Singapore and Malaysia;
- the letter from the Department to the applicant of 15 October 2002;
- documents showing that the Department has no record concerning entry to or exit from Australia of a person travelling on a Sri Lankan passport bearing the applicant’s name.
THE SUPPORTING STATEMENTS
The claim that the Tribunal failed to consider or take into account the Supporting Statements is without substance. In its reasons, the Tribunal referred expressly to letters from family friends and a statement from a police officer produced by the applicant. The Tribunal observed that that evidence was produced at the request of the applicant or his advisers in order to support the application. The Tribunal observed that it was not independent evidence and was not more than one would expect a well connected man, as the applicant claimed to be, to be able to produce. The Tribunal said that it gave little weight to the evidence.
Thus, it is abundantly clear that the Tribunal did have regard to the material in question. However, it rejected it as having no weight. It is a matter for the Tribunal as to what, if any, weight is given to particular evidence. The Tribunal’s determination to reject particular evidence as having no weight, cannot be said to be a failure to consider, or to have regard to that evidence.
THE APPLICANT’S STATEMENTS
Similarly, there is no substance in the claim that the Tribunal failed to take into account the applicant’s statements made prior to 7 November 2002 referring to the ship stopping in Singapore and Malaysia. The Tribunal clearly had regard to all of the applicant’s evidence and, for the reasons that the Tribunal gave, it rejected the applicant’s evidence as lacking in credibility. That is not a failure to consider or to take into account the applicant’s evidence.
LETTER OF 15 OCTOBER 2002 AND DEPARTMENTAL RECORDS
The letter of 15 October 2002 and the Department’s searches of its records are not mentioned in the Tribunal’s reasons. The applicant contends that those documents are relevant as demonstrating quite clearly that the applicant did not enter in Australia on a passport in his own name. The applicant contends that, on a fair reading of the Tribunal’s reasons, it approached the question of the applicant’s credibility on the basis that there were only two possibilities as to the applicant’s entry into Australia as follows:
- the applicant arrived as a stowaway, as he claimed;
- the applicant entered Australia legally under a passport in the name which is known to the Department and the Tribunal.
The applicant says that, since the documents in question demonstrate that the second possibility did not occur, it must follow that the first possibility is made out. The Tribunal, however, rejected the first possibility. The applicant claims that it could not have done so, if it had taken into account the documents in question.
If it could be demonstrated unequivocally that the Tribunal approached the matter on the basis that there were only two possibilities as asserted, there would be a great deal to be said for the contention that the Tribunal failed to consider and failed to take into account the documents in question as evidencing a relevant matter. However, there are at least two other possibilities concerning the applicant’s entry into Australia:
- the applicant entered Australia under a false passport;
- the applicant entered Australia under a genuine passport, but has adopted a false name in his dealings with the Department and the Tribunal.
The applicant points to a number of factors that are said to demonstrate that the Tribunal did not have regard to either of those possibilities. First, the letter of 15 October 2002 from the Department refers only to the possibility of illegal entry bypassing immigration clearance procedures. Secondly, the Tribunal’s letter of 12 November 2003 refers only to the possibility that the applicant entered Australia ‘legally on your own passport’. Finally, in its reasons, the Tribunal said:
‘I consider that it is likely that the applicant was seeking to avoid disclosing his passport. His passport would reveal his past movements.’ (Emphasis added)
The applicant contends that those references indicate that the Tribunal did not have regard to the possibility that the applicant travelled to Australia on a false passport or the possibility that the applicant adopted a false name.
However, that is by no means self evident. The Tribunal could have been referring to a false passport under which the applicant entered Australia as ‘his passport’. More significantly, in its reasons the Tribunal said, when referring to the question of whether the applicant travelled to Australia on the NYK Pride:
‘I do not consider that this is a case of an applicant telling an untruth about a matter peripheral to his claim for protection. This issue relates not just to the circumstances of his arrival in Australia, but also goes to his identity and to his movements during the time in which he claims to have been involved in incidents which led to his fleeing Sri Lanka.’ (Emphasis added)
Thus, while the Tribunal indicated that it was satisfied that the applicant is a Sri Lankan national, is Sinhalese, is a Roman Catholic, speaks, reads and writes English and Sinhalese and speaks Tamil, the Tribunal did not make a finding as to the identity of the applicant. The observations just cited indicate that the Tribunal had reservations concerning the identity of the applicant. Accordingly, it is by no means clear that the Tribunal rejected the possibility that the applicant came to Australia on his own passport but then adopted a false name.
The reasoning of the Tribunal gives rise to some disquiet in so far as there is no express finding by the Tribunal that the applicant may have come to Australia on a genuine passport and adopted a false name or may have come to Australia on a false passport. However, the Tribunal did not expressly reject those possibilities. It is only if it rejected those possibilities that the documents in question would become clearly relevant to the Tribunal’s assessment of the applicant’s credibility. So long as those possibilities are open, the question of whether there had been no entry into Australia by a person using the applicant’s name and a Sri Lankan passport is quite equivocal. I consider, on balance, that this ground is not made out.
FAILURE TO ACCORD NATURAL JUSTICE
The particulars given by the applicant under this head are that the Tribunal failed:
- to provide the applicant with a copy of a search of the data bases of the Department concerning entry to and exit from Australia of persons travelling on Sri Lankan passports bearing the applicant’s name and failed to provide the applicant with an opportunity to obtain an extract to that effect;
- to provide the applicant with a copy of the ship’s log of the NYK Pride prior to the hearing on 7 November 2003;
- to enquire of NYK Line (Australia) Pty Ltd as to the applicant’s claim that a man known as ‘George’ was working on the NYK Pride on 26 August 2002.
DEPARTMENTAL RECORDS
There was no failure to accord procedural fairness by the failure to provide the applicant with information as to the contents of the Department’s records concerning entry to and exit from Australia of persons travelling Sri Lankan passports bearing the applicant’s name. The applicant knew, from the letter of 15 October 2002, that the Department had been unable to locate any entry record for him. It was open to the applicant to make a submission, through his adviser, that there was no record of his entering Australia on a Sri Lankan passport in his own name. While he had every opportunity to do so, he did not make any such submission.
SHIP’S LOG
The contention that there was a denial of procedural fairness because the particulars of the ship’s log were not furnished prior to the hearing on 7 November 2003 is misconceived. The Tribunal is engaged in an inquisitorial process. It is entitled to test the credibility of the evidence given by an applicant by cross examination. It is not obliged to warn an applicant in advance that it has material that contradicts evidence already given by him or her. An honest applicant would have no difficulty in dealing with such material, if there is a genuine explanation for it. A dishonest applicant is not entitled to be forewarned about material that might suggest his or her evidence is unreliable.
Following the hearing on 7 November 2003, the Tribunal informed the applicant of the information that it had that might be the reason or part of the reason for deciding that the applicant was not entitled to a protection visa. The Tribunal then gave the applicant a further chance to explain the material obtained from NYK Line (Australia) Pty Ltd. Clearly, as the summary of the exchanges at the hearing set out above indicates, the Tribunal was not satisfied by the explanation given by the applicant. There was no denial of procedural fairness in the circumstances alleged.
ENQUIRIES CONCERNING GEORGE
Nor was there any denial of procedural fairness by reason of the failure to make inquiries of NYK Line (Australia) Pty Ltd as to whether there was a member of its crew as at the date of arrival of the vessel in Australia with the name ‘George’. The description given by the applicant of George was sufficiently vague for any response from NYK Line (Australia) Pty Ltd to be of no value. George is not an uncommon name for a European, as he is alleged to have been. There was no particular description given that would identify any particular individual called George as the person described by the applicant. Any response given as to whether NYK Line (Australia) Pty Ltd had a crew member called George at the relevant time would be equivocal one way or the other. There was no denial of procedural fairness by failing to enquire in that regard.
FAILURE TO COMPLY WITH SECTION 424A OF THE ACT
The applicant contends that the failure by the Tribunal to provide the applicant with a copy of a search of the Department’s data base concerning entry to and exit from Australia of any person travelling on a Sri Lankan passport bearing the applicant’s name or to provide the applicant with an opportunity to obtain an extract as to that matter was a failure to comply with s 424A of the Act. However, s 424A requires that the Tribunal tell the applicant about any information that it has that would be the reason or part of the reason for deciding that the applicant was not entitled to a protection visa. It is clear, as the applicant complains, that the Tribunal did not have regard to the search of the Department’s data base concerning entry of persons to Australia travelling on Sri Lankan passports bearing the applicant’s name. Rather, the Tribunal expressly did not treat that material as a reason for deciding that the applicant was not entitled to a protection visa. This claim is completely without substance.
WEDNESDBURY UNREASONABLENESS
The applicant contended that the Tribunal’s finding that the applicant lied about his manner of arrival in Australia was a finding that could not have been made by a rational decision maker with the material that the Tribunal had before it or with the material that could have, on reasonable enquiry, been available to it, concerning the voyage of the NYK Pride, including whether or not a person called George worked on the ship at the relevant time.
This ground is essentially a reformulation of the matters referred to above concerning the failure to have regard to the lack of record in the Department’s data base of entry into Australia of a person travelling with a Sri Lankan passport under the applicant’s name. For the reasons indicated above, it was not unreasonable for the Tribunal to make the finding that it made, notwithstanding the evidence that the Department had no such record. Also, for the reasons indicated above, it was not unreasonable to fail to enquire about a person called George because a response would have been equivocal. This ground is not established.
CONCLUSION
It follows that none of the grounds contended for by the applicant has been made out. Accordingly, the application should be dismissed with costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 30 June 2004
Counsel for the Applicant: Mr S.E.T. Prince Solicitor for the Applicant: Ebsworth & Ebsworth Counsel for the Respondent: Mr S. Lloyd Solicitor for the Respondent: Sparke Helmore Date of Hearing: 25 May 2004 Date of Judgment: 30 June 2004
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