Paul v Minister for Immigration and Multicultural Affairs
[2001] FCA 277
•19 MARCH 2001
FEDERAL COURT OF AUSTRALIA
Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 277
IMMIGRATION – conflict on material date between applicant in subject proceedings and her brother, he being applicant in preceding application before Tribunal – conflicting dates considered by Tribunal to be highly relevant to application of first-mentioned applicant – first and second mentioned applicants represented by same Solicitors – solicitors invited by Tribunal at close of evidence to produce documentary evidence of first-mentioned applicant concerning material date subject to conflicting evidence – Tribunal sends reminder by letter and sets time for provision of such additional evidence if same to be tendered – whether in sending such invitations, Tribunal complied with scheme of ss 424A, 424B and 441A of Migration Act – apparent inconsistency between subsections (1) and (2) of s 424A – whether Tribunal additionally complied with s 430(1) and applicable Regulations thereunder – whether alternatively discretion should be exercised in favour of Respondent - practice of Tribunal questioning applicant in preceding application concerning material fact in subsequent application of related applicant.
Migration Act 1958 (Cth) ss 424A, 424B, 430, 441A, 476(1(a) and 481(1)(a)
Migration Legislation Amendment Act (No 1) 1998 (Cth)
Migration Regulations 1994 (Cth) 4.35(3) and 4.35A(3)Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 applied
R vFoley [1998] QCA 225 cited
Re Minister for Immigration and Multicultural Affairs; Ex part Durairajasingham (2000)
168 ALR 407 applied
Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 referred to
Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 175 ALR 585 applied
Naing v Minister for Immigration and Multicultural Affairs 2000 97 FCR 336 applied
Najim v Minister for Immigration and Multicultural Affairs (2000) FCA 1470 applied
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied
Wimalaratne v Minister for Immigration and Multicultural Affairs (2000) FCA 964 applied
Ex parte Tasker; re Hannon [1971] NSWLR 804 referred toPhipson on Evidence 15th ed. 2000 at p.50
ESTHER CHRISTOBELLE NESAMALAR PAUL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 502 of 2000
CONTI J
19 MARCH 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 502 OF 2000
BETWEEN:
ESTHER CHRISTOBELLE NESAMALAR PAUL
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
19 MARCH 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Application be dismissed.
2.The Applicant pay the Respondent’s costs of the proceedings.
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
N 502 OF 2000
BETWEEN:
ESTHER CHRISTOBELLE NESAMALAR PAUL
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
CONTI J
DATE:
19 MARCH 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Application for Review
The Application for Review filed in this Court has been pursued at the hearing in relation to two segments as follows:
(i)Procedures that were required by the Migration Act 1958 (Cth) (“the Act”) to be observed in connection with the making of the Decision of the Refugee Review Tribunal (“RRT”) were not observed within s 476(1)(a) thereof, in that the RRT did not comply with ss 424A, 424B and 441A of the Act;
(ii)Additional procedures that were required by the Act to be observed in connection with the making of the RRT Decision were not observed within s 476(1)(a) thereof, in that the RRT failed to produce a written statement in accordance with s 430 of the Act.
The RRT Decision made on 31 March 2000
The respective particulars of the two grounds described in the Application for Review in terms of (i) and (ii) above were framed by the Applicant in the Application for Review in the following terms:
As to non-compliance with ss 424A and 424B:
“The Tribunal’s decision turned, in part, on whether the Applicant’s husband died “about 20 years ago”, as a brother alleged at his own hearing, or whether he died in 1995 as the Applicant and other family members alleged in the Applicant’s case. The brother’s evidence contained information that was specifically about the Applicant’s husband. The Tribunal was obliged to invite the Applicant to comment on the particulars of that information in accordance with ss 424A and 424B. The Tribunal erred by not giving the Applicant the full particulars of that evidence and by not issuing an invitation that complied with the statutory code.”
As to non-compliance with s 430:
“The Tribunal erred by failing to refer to the evidence, make material findings of fact or give its reason for its finding “I do not accept that Tamils, just because they are Tamils, face problems in Sri Lanka”. There was detailed information put to the Tribunal that pointed to the opposite conclusion. The Tribunal did not refer to it.”
No formal amendment was made to raise the s 441A issue at the hearing, but the Respondent was able to address the same at the hearing. Though appearing at first sight to raise issues essentially of a technical nature, the resolution thereof involve a consideration of substantial parts of the RRT Decision in a number of ways, and accordingly I have found it later appropriate to incorporate the same in these Reasons for Judgment for ease of reference.
I set out in full below the respective provisions of ss 424A, 424B, 430 and 441A, so far as the same are material, and also s 476(1)(a) which provides the ultimate basis for the Application.
“424A Applicant must be given certain information
(1)… the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)The invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention.
(3)This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member;
…”
“424B Invitation to give additional information or comment
(1)If a person is:
…
(b)invited under section 424A to comment on information;
the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2)If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3)If the invitation is to give information or comments at an interview, the interview is to take place:
(a)at the place specified in the invitation; and
(b)at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
…”
“430 Refugee Review Tribunal to record its decisions etc.
(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
…
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.
…”
“441A Methods of dispatch of certain documents
(1)A document specified in subsection (3) is taken to be duly given to an applicant for review if:
(a)The document is sent (physically, electronically or otherwise) to:
(i)the last address for service provided by the applicant in connection with his or her application for review; or
(ii)the last residential address provided by the applicant in connection with his or her application for review; and
(b)the Tribunal has a receipt or other evidence indicating the date of dispatch.
(2)A document specified in subsection (3) is taken to be duly given to an applicant for review if the document is given:
(a)by giving it to the applicant or to a person authorised by the applicant to receive documents of that kind on behalf of the applicant; or
(b)by leaving it at the applicant’s place of residence with a person who appears to live there and appears to have turned 16.
(3)The documents specified for the purposes of subsections (1) and (2) are:
…
(b)an invitation under section 424A (other than an invitation to an applicant who is in immigration detention); and
…”
“476 Application for review
(1)Subject to subsection (2), application may be made for review by the Federal Court of a judicially – reviewable decision on any one or more of the following grounds:
(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed.”
The Applicant was notified about the RRT Decision on 18 April 2000. The Applicant claims to be aggrieved by the Decision, because it puts her in jeopardy of being forced to return to Sri Lanka, where she claims she will be persecuted for any one or more Convention reasons. It is appropriate that I identify at once a tension within the language emplaced within s 424A. Whereas subsection (1) provides that the mandatory notification the subject thereof may be given “in the way that the Tribunal considers appropriate in the circumstances”, subsection (2) stipulates that such invitation must be given by one of the s 441A methods.
Detailed Account of the RRT’s account of the Applicant’s evidence and submissions given to RRT and of its findings
Because of the extensive reasons advanced by the Applicant in support of what might otherwise be characterised as an application wholly technical in nature, I have found it appropriate to provide an extensive recapitulation of the RRT Decision, particularly for ease of reference. The Applicant is a 52 year old Tamil woman, who was born in and lived at Mahagama south east of Colombo for the first 27 years of her life. She asserted to the RRT that her husband was killed by the army authorities in Sri Lanka in 1995, due to a history of suspected involvement on his part with the Liberation Tigers of Tamil Eelam (LTTE). The apparent time of her husband’s death assumed one of the critical issues of the Decision. The Applicant has described the main events of her life and those of her deceased husband and son as follows. She is Anglican by religion and was educated for 10 years from 1953 until December 1966. She was a teacher of Tamil from 1968 until 1974, and then assisted her husband to cultivate their land near Vavuniya in Sri Lanka from 1974 until September 1990. She gave birth to a son in 1975. From July 1975, her husband’s assistance was compulsorily enlisted by the LTTE in a number of ways. After about July 1983, the Sri Lankan armed forces started to become “heavy handed” in the Applicant’s neighbourhood, and questioned and beat her husband and other local men over a period of about two weeks, by reason of suspicion of involvement with the LTTE. Such armed forces also shelled the local villages and killed people and destroyed their land. Nevertheless the LTTE continued their resistance to government authority. The Indian Peace Keeping Force arrived in the Applicant’s locality in 1987, but the LTTE’s resistance to authority continued, as did the forced association of the Applicant’s husband with the LTTE, and that Force also acted brutally towards the Tamil minority. The Applicant went to work in Saudi Arabia as a housemaid from September 1990 until September 1995, which was the month when her husband was killed or reported to her as having been killed. (The approximate date of her husband’s death became an issue of critical importance before the RRT, as will shortly appear). Neither her husband nor her son accompanied the Applicant to Saudi Arabia. The Applicant went back to Sri Lanka for a holiday in December 1992 and returned to Saudi Arabia in January 1993. Whilst the Applicant was in Sri Lanka on that holiday, money was extorted from her by both the LTTE and the Sri Lankan army. By the time she journeyed back to Saudi Arabia, there was no money left for her son’s education, for the cultivation being worked by her husband and son, or for treatment of her husband’s injured leg, being an injury apparently sustained because of his involvement with the LTTE. The husband’s communication with her was thereafter rare. The husband and the son nevertheless wanted to come to Saudi Arabia, but her son was unable to do so because he was under the age of twenty-five years, and she and her husband did not wish to leave him alone in Sri Lanka. In July 1995, the Applicant’s son wrote to the Applicant from Sri Lanka, saying that her husband had been arrested, and requesting her to come home immediately. She responded by returning to Sri Lanka in September 1995. Upon her return to Sri Lanka, the Applicant ascertained that her husband had been tortured and murdered in an army camp. The Applicant stayed thereafter at Vavuniya until 20 November 1995. She then journeyed to Australia, and applied for a protection visa on 23 February 1996. A Delegate of the Minister refused the grant of a protection visa on 19 February 1998.
Prior to the RRT hearing the Applicant’s review application, her solicitors wrote a comprehensive seventeen page letter of submissions bearing date 19 November 1999 to the RRT, which propounded a comprehensive as well as impressive account of civil war and unrest in Sri Lanka, and the ways in which the minority Tamils had found themselves caught in a victimised wedge. That letter did not refer however to the time or approximate time of the death of the Applicant’s husband, but merely that “Eventually, Mrs Paul’s husband was abducted and murdered by the army…” (page 1). The solicitors’ letter concluded by way of summary as follows:
“In my submission, the claims and evidence advanced by Mrs Paul show that she has well-founded fear of persecution for reasons of:
(a)her race;
(b)the political opinion that has been imputed to her by reason of being a Tamil,;
(c)her relationship with a man who was murdered as an (sic) LTTE suspect; and
(d)her membership of a particular social group, namely her husband’s family.”
The Applicant’s parents, three of her brothers, and three of her sisters reside in Australia, as do the spouses of such brothers and sisters. The Applicant still has four sisters and one brother living in Sri Lanka. She has telephone communication in Australia with her son, who presently resides in Columbo. The Applicant claimed to the Tribunal that she cannot relocate herself from Australia to Columbo, because she has not previously lived there, and there is prevalent in that place racial intolerance, round-ups and extortion, all at an official level. She also claimed that she cannot return to northern areas of Sri Lanka because of her race, and because she believes that there would be attributed to her the existence of political support for the LTTE, by reason of her late husband’s wrongfully imputed support for the LTTE. It is therefore apparent why the appropriate time of her late husband’s alleged murder by the Sri Lankan army became a material matter for the RRT to explore and determine.
On the day preceding the hearing of the Applicant’s review proceedings before the RRT, there took place the hearing of an application for review on the part of the Applicant’s brother Mr John Knight before the same constituted Tribunal. Mr John Knight was represented by the same firm of Solicitors as were then retained by the Applicant, and still are so retained. The RRT gives the following account, in its Decision relating to the Applicant, of the brother’s evidence and also that of such brother’s wife, to the RRT concerning the Applicant’s deceased husband:
“… The Tribunal asked the applicant’s brother and his wife – Mrs Princy Knight – about the applicant’s application. He advised the Tribunal that he knew that the applicant’s husband was killed by the army. The Tribunal asked him for better detail, he said he didn’t know much and it was only rumoured that he had been killed by the army, many of their relatives had died. His wife’s brother had been killed in 1986. He said that he thought that his sister’s husband died “about twenty years ago”, and said that “it was before 1986” referring to his wife’s brother’s death, and “they were living in Vavuniya at the time”. He was asked several times if he was sure of this and said that he was. He recalled that after the husband died his sister travelled to Saudi Arabia to work. His sister’s son was young at the time and lived with relatives of her husband while she was in Saudi Arabia, though he could not remember exactly who cared for him. The brother’s wife gave evidence, and in part of it was asked about the applicant’s husband. She said that she did not know detail but had heard that he had been “shot dead by the army about four or five years ago”. The Tribunal put to her what her husband had said in evidence in particular that the husband had died about twenty years ago. She was slow in answering, and said “about the death I was unaware, I don’t know, I do not know to that extent … at that time I did not know her very well. Well previously I didn’t know her very well, I do not know. It was only after coming here that I got to know her”. The Tribunal asked what in particular she knew of her sister-in-law’s reasons for coming to Australia and leaving Sri Lanka. She said “because she couldn’t stay there. She had, like problems or hardships”. The Tribunal asked her to be exact. She said “well I do not know much, only after coming here have I spoken to her. I wouldn’t talk of these topics”. She said her sister-in-law had little contact with her son and had not received a letter for about three months.”
The RRT next records in its Decision what was testified by the Applicant concerning the time of her husband’s death, in the course of the Applicant’s hearing before the RRT on the following day, namely 23 November 1999, as follows:
“[The Applicant] said ‘I am not in a position to return to Vavuniya. The land was handed over and they have made accusations that the manner of the signature was wrong. They have said ‘if mother returns we will kill her’. She explained that by they she was referring to the Tigers (the LTTE). She claimed that she had not put her real signature on the land transfer she had given to the LTTE. She said her son was 24 years old, and that he was 19 years old when her husband had died in 1995. She said her husband had died while she was in Saudi Arabia. The Tribunal asked what evidence she had as to when her husband died. She said that her son had written to her to the effect that she should return as her husband was shot dead “his body was not seen. They put a tyre and set it ablaze”. She claimed that she learned of this after her return from Saudi Arabia, and she had made enquiries of friends from the area. The Tribunal put to the applicant the evidence of her brother taken that morning by the Tribunal relating to his recollection of her husband’s death, in particular that her husband had died about twenty years ago and it was after this that she had travelled to Saudi Arabia to work. She said “after the riots in 1977 we all went in various directions, I was in Vavuniya with my husband he was a farmer and our family wouldn’t mix with him as every one else had a decent job except him… he passed away 5 years ago in 1995 inside a camp and nothing was given”. She said that her husband’s parents looked after her son while she was in Saudi Arabia, they lived at the same place as her husband. Her husband’s mother is still alive and living in Vavuniya, and her husband’s father died about two years ago. The Tribunal asked why she had gone to work in Saudi Arabia. She said “we didn’t have the money to treat my husband’s broken leg”.”
The Applicant’s younger brother, Mr Henry Knight, also gave evidence to the RRT, although on what specific occasion is not stated. The following account is given in relation thereto in the RRT’s Decision concerning the Applicant:
“… The applicant’s younger brother Henry Knight gave evidence. He is 32 years old and has been in Australia for 10 years, he had problems in Sri Lanka with the LTTE wanting him to join them. He told the Tribunal that he was not exactly sure when his sister’s husband died, as “I was here in 1995, I’m not exactly sure”. The Tribunal asked him questions about his sister. He said she had left Sri Lanka as “every time she went back there she was asked by the LTTE to pay money, the LTTE had wanted to take her husband”. The Tribunal asked if he knew whey she had gone to Saudi Arabia. He said “the main reason was to make money”. The Tribunal put that the other brother in evidence had said that the applicant’s husband had died many years ago. He said “I am sure we know when he died”.”
Before the hearing of the Applicant’s case on 23 November 1999 had concluded, the RRT asked the Applicant whether any supporting evidence, such as a death certificate, could be obtained by way of support for her claim as to the date when her husband had died. The Applicant was also questioned as to the circumstances which led to her obtaining a passport back in 1981, which was said to have been lost. Further discussion occurred as to the possibility of obtaining evidence as to when the Applicant’s husband had died. The hearing was adjourned until the first week of February 2000 to enable the Applicant to obtain evidence as to the time of her late husband’s death. Nothing further seems to have transpired, so far as concerned the RRT hearing of the application of the Applicant, and on 13 March 2000, the RRT wrote to the Applicant’s Solicitors by way of reminder as follows:
“Application for a Protection Visa.
I refer to the hearing of this application on 23 November 1999. At the hearing the Tribunal Member reviewing your client’s application gave until the first week of February 2000 for inquiries to be made from Sri Lanka in relation to a death certificate of the applicant’s husband, or any other evidence which could indicate when he died. No information has as yet been supplied to the Tribunal. Please advise.
At the hearing of the matter the Tribunal also raised the possibility of another hearing. However, unless specific issues can be identified by you which may require a further hearing, the Tribunal proposes to conclude evidence in the matter by way of written submission from you. If you wish to comment on this please advise.
The Tribunal has requested that you provide a response in relation to this matter within 14 days of the date of this letter.”
By letter dated 24 March 2000, the Applicant’s Solicitors responded comprehensively to the RRT as follows:
“Re: Mrs Esther Christobelle Paul: Application for Review
At the hearing by the Tribunal on 23 November 1999, the Presiding Member allowed me time to try to establish the time when Mrs Paul’s husband was killed by the security forces in Sri Lanka. I regret the delay in providing the further evidence.
2. The need for this evidence arose out of testimony given by the applicant’s brother, Mr John Knight, in his own case, that Mrs Paul’s husband had been killed about 20 years before. I submit that the Tribunal should find that Mr Knight was mistaken when he gave this testimony. His testimony is inconsistent with the consistent testimony of the applicant, her sister-in-law, Mrs Princy Knight (Mr John Knight’s wife) and her brother, Mr Henry Knight. All of them testified to the effect that the security forces in Vavuniya killed Mr Paul in about the third quarter of 1995.
3. I submit that the Tribunal – if it has any doubts about the credibility of the applicant’s testimony – should give most weight to the testimony of Mrs Princy Knight. Mrs Knight testified to the date of Mr Paul’s death in her own application to the Tribunal. The question about the date of his death was not a question that she would have foreseen the Tribunal putting to her. Therefore, there is no reason why she would have colluded with the applicant or Mr Henry Knight to give consistent but false testimony about the matter.
4. Furthermore, if the applicant, Mrs Princy Knight and Mr Henry Knight had sufficient foresight to collude to provide false testimony to the Tribunal, they must have foreseen that Mr John Knight might be questioned about the same matter. I submit that there was nothing in the way Mr John Knight testified to suggest that he decided to tell the truth despite a previously concocted plan. His demeanour, when responding to the Tribunal’s question about when Mr Paul died, was one of mystification that he should be asked a question that he saw as entirely irrelevant to his own case.
5. Since the hearing I have pressed my clients to try to find documentary evidence contemporaneous with Mr Paul’s death that might corroborate the testimony that he was killed between about July and September 1995 by the security forces in Vavuniya. None of the family has been able to obtain any documentary evidence contemporaneous with Mr Paul’s death. They point out that since the security forces killed him, there will be no official records, such as a death certificate. They have been unable to locate any other documentary evidence such as newspaper reports. However, all members of the family instruct me that they recall his being killed between July and September 1995. Some of them add that their mother, Mrs Rosabelle Knight told them in about October 1995. Enclosed is a letter from Mrs Rosabelle Knight setting out how and when she learned of her son-in-law’s death.
6. For these reasons, I submit that the Tribunal should find that her testimony together with that of Mrs Paul and Mr Henry Knight establishes that Mr Paul was killed between about July and September 1995 by the security forces in Vavyniya.
7. I have addressed the other issues in this matter in my submission of 19 September 1999. I refer the Tribunal to those submissions.”
Such enclosed letter from Rosebelle Knight was in the following terms:
“To Whom it May Concern:
This is to inform you that I received a telephone call in October 1995 from my daughter Esther C.N. Paul, saying that her husband George Paul was killed and the body was burnt by the Sri Lankan Army in between July-September 1995.”
Having recorded in its Decision that it had taken into account a very large volume of what it considered to be independent so-called country evidence in relation to the observance or otherwise of human rights in Sri Lanka, the RRT stated that there were several aspects of the Applicant’s claims which caused it concern, and that it would “… consider the main issue first – when her husband died – and the issue of overall credibility”. By this time, the approximate date of death of the Applicant’s husband was at least one main issue prevailing in the review application. That was because at least part of the thrust of the Applicant’s case as summarised by her solicitors in the terms extracted in [6] above was that the Applicant would be persecuted, if returned to Sri Lanka, because of his imputed association with civil eruptions occasioned by the LLTE of relatively recent times (ie 1995). Thereafter the RRT made the following findings in its Decision upon what it described as the “main issue… when her husband died – and the issue of overall credibility” which, in the circumstances of this case, it is appropriate that I extract below:
“Having considered all of the evidence I find that the applicant’s husband died about 1980. I find that she obtained a passport in 1981 and that the applicant worked in Saudi Arabia from about 1981 until 1995. I find that the applicant and some members of her family were not credible witnesses. In particular I find that Mrs Princy Knight, Mr Henry Knight and Mrs Rosebelle K. Knight were not credible witnesses in the evidence they gave to the Tribunal in relation to these matters. I can understand why they would seek to assist the applicant in her claims, and would wish her to remain in Australia, her husband is dead, she is distanced from her son and most of the family is in Australia.”
The RRT made the following further findings adversely to the credibility of the Applicant’s testimony, which require extraction in order to fully comprehend the RRT’s comprehensive approach to review in this case:
“I also have serious doubts as to the remainder of the applicant’s claims relating to extortion and the signing over of the land in Vavuniya to the LTTE. I note that on her evidence the son has returned to Vavuniya. This is where her husband’s family is from, where the family home is at Nelukulam and where the husband owned 5 acres. If there were threats or concerns from the LTTE in the area and specifically a concern about the land, I doubt that the son would so return if there were serious concerns for his safety there or an issue relating to the false signature. It is more reasonable to accept that he has returned as his grandfather has died and his grandmother is alone. I also do not accept that even if the applicant had signed her name incorrectly that either anyone would know or that it would be an issue, the LTTE is not in control of the area, they are not the government there, there is nothing that they could do with the transfer even if signed correctly by the applicant. Given my finding above, about the applicant not being truthful concerning when her husband died, I am not prepared to give her the benefit of the doubt relating to this matter. Overall, I do not accept any of the applicant’s evidence relating to the death of her husband nor extortion nor the issue with the transfer of land as being reasonable to believe. I find that the applicant has fabricated these claims to support an application for a protection visa.”
The RRT made the yet further finding as to the implications of the Applicant’s identity as a Tamil, if she was to return to Sri Lanka, being a finding which was adverse to the Applicant’s application, irrespective of the preceding adverse finding as to the time of death of her late husband:
“The applicant’s adviser makes a claim that she has a fear in return (sic) to Sri Lanka in that she is a Tamil. I do not accept that Tamils, just because they are Tamil, face problems in Sri Lanka. I accept that she may not want to return to Sri Lanka because of the civil conflict and terrorist activities occurring there.
The situation in Sri Lanka is complex and difficult to understand. There have been large numbers of deaths reported over many years, many of them in horrible circumstances. There is difficulty in accurately understanding who is responsible for many of the deaths. There is sufficient country information available to indicate government agencies – the police and army are responsible for many of the deaths and disappearances that have taken place. The government has taken steps in order to stop human rights abuses. The war continues.
I accept that the applicant has a general fear of harm as a result of the civil conflict in Sri Lanka, this however is not sufficient to bring her within the Convention definition. Whilst I appreciate that she may not feel safe, it is apparent that the ongoing problems there affect the whole country and most would no doubt have such a fear, Sinhalese and Tamils.
The country information shows that the applicant like virtually anyone in Sri Lanka is exposed to the risk of becoming a victim of random violence in a civil conflict situation. In Abdalla v MIMA, 1999 51ALD11, the Full Federal Court commented that the fact that a recurring pattern of violence can be described in some way such as civil war or communal violence does not mean it cannot amount to persecution within the meaning of the Convention. The Tribunal notes that the conflict in Sri Lanka is a combination of a racial and political dispute. Being harmed as a “bystander” or “on the sidelines” is “not sufficient” as discussed by the Full Court in MIMA v Adbi, 1999, FCA 299. The court in that case stated “the evidence must go further and disclose a Convention connection between the persecution of the applicant or the clan to which he belongs and the risk of harm"” In the applicant’s circumstances I do not accept that she is subject to anything other than the situation of generalised violence in Sri Lanka – something which everyone is unfortunately caught up in. In considering the applicant’s circumstances and her accepted evidence and findings above, and the independent evidence I do not accept that she has a profile which results in her being of any interest, adverse or otherwise, to the authorities, or to anyone else. She is a middle aged woman who on the accepted evidence has not been of adverse interest to anyone. She has in recent years mostly lived outside of Sri Lanka. She has returned occasionally for holidays. She has worked as a teacher of Tamil in an area south of Colombo near where she was born, some of her sisters still live in the area. She has been in Colombo, though not for significant periods. Many hundreds of thousands of Tamils live in Colombo, there are Tamil groups who are supportive of the government and openly anti-LTTE and their desire for a separate state. I do not accept that being a Tamil of itself results in adverse interest. I do not accept that the accepted evidence discloses a Convention connection between her fear of being caught up as a “bystander” or “on the sidelines” and the risk of harm.
Overall, I find that the applicant does not have a well-founded fear of persecution for reasons of a Convention ground.”
The above reference to the Singhalese people is to the ethnic majority in Sri Lanka.
The RRT proceeded to make the additional findings below adversely to the Applicant’s application, being supplementary to those made as set out in [13] above, that is to say further findings why in the RRT’s view, the Applicant was not within the Convention definition of a refugee, irrespective as to how the issue as to the time of death of her late husband should be resolved.
“I am mindful in this decision that the above findings are likely to cause problems within the applicant’s family. I can understand that. Even if I had accepted the applicant’s evidence as to her husband’s death in 1995 and the rumour (I would not accept it as being greater than that) that it was at the hands of the army, and that she had money extorted from her by the LTTE and gave her land to the LTTE by way of a transfer (I would not accept that she would have put a false signature, nor that if she did anyone would be aware of it) I consider that she would not fall within the Convention definition of a refugee, in that her fear of harm is not well-founded. There is no suggestion nor evidence to support any inference that the authorities in Sri Lanka suspect the applicant of anything, there is no reason to suspect they would harm her. If they were interested in her they had an opportunity whilst she was there and nothing happened. Even if the LTTE may seek to extort money from her in the Vavuniya area, their motivation is that they perceive she has money because of her overseas connections and work. She can avoid this by residing in the south. This is not relocation as such as she has lived there before. She has hardly lived in Sri Lanka in recent years, but she was born in and lived for the first 27 years of her life in the south east area outside of Colombo. Her father was born outside of Kandy. Some of her sisters live south of Colombo. I find that the applicant could avoid harm by residing in the south, and that it is reasonable in all of the circumstances for her to do so.”
The Applicant’s submissions as to non-compliance with ss 424A, 424B and 441A
The Applicant submitted that there had been no compliance on the RRT’s part with s 424A(1)(a) and (b) of the Act, in summary in the following terms:
“One reason why the Tribunal preferred the brother’s evidence was that he had been able to relate the husband’s death to other events. One such event was that the brother had said his wife’s brother had been killed in 1986 and the Applicant’s husband had died before that event. The Tribunal did not give this information to the Applicant. The Tribunal thus erred by failing to comply with s 424A(1)(a) and (b).”
The RRT’s summary of the evidence of the Applicant’s brother John Knight has already been extracted in part in [8] above. The acceptance by the RRT of such testimony as to the time of the death of the Applicant’s husband was clearly enough part of the reason for the RRT’s ultimate affirmation of the decision of the Minister’s delegate, within the purview of s 424A(1)(a), and I would infer that the RRT would have perceived, by the close of the 23 October 1999 hearing of the Applicant’s review application, that such might well be the case. Thus by that time, I would further infer that the RRT considered it was appraised of “information” which could well be part of the reason for affirmation of the Minister’s decision. That is the reasonable import of s 424A(1)(a), in that the use of the word “would” may be understood as importing or including “could well be”. Consequently the need for the RRT to comply with s 424A(1)(a) can realistically be said to have crystallised by that time – hence what appears on page 10 of the Decision:
“The applicant’s adviser submitted that the applicant’s husband had been murdered by soldiers whilst in custody. There followed a discussion on the possibility of obtaining evidence as to when the husband died. The Tribunal gave the Applicant until the first week in February 2000 for this to be obtained.”
I would infer that in the course of such discussion, the RRT did refer to the essence or impact of the evidence of John Knight and indeed its significance (see for instance the text of the letter of the Applicant’s Solicitors extracted in [11] above). Moreover, in the context of the RRT inferentially having given such “information” orally at the close of the hearing on 23 October 1999, the RRT’s letter of 13 March 2000 (see [11] above) should be characterised as having constituted written confirmation of the earlier giving of such “information” orally, in that the same purported to confirm the RRT’s extension of the time of the opportunity for the Applicant to produce to the RRT a death certificate in relation to her late husband, or other evidence of his death, implicitly by way of refutation of her brother’s oral evidence given to the RRT. So much was implicitly confirmed by the thrust of the letter of the Applicant’s Solicitors of 24 March 2000 in reply (see also [11] above). I would therefore reject the Applicant’s submission as to non-compliance with the terms of s 424A(1)(a), subject to the s 441A issue later to be addressed. In Naing v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 336, Hill J observed at [34] in relation to s 424A as follows:
“… the Tribunal was obliged by s 424A to give particulars of this information to the applicant for comment. It was not obliged to give more than that.”
So much was undertaken by the RRT in the circumstances I have described. In Najim v Minister for Immigration and Multicultural Affairs [2000] FCA 1470 French J paraphrased at [27] the s 424A notion of information in terms of “… the substance of the contradictory material”, and at [28-31], his Honour gave the following illustration of how there may occur substantial compliance with s 424A notwithstanding any shortfall in compliance at the original hearing:
“Even if it were the case that there had not been substantial compliance with the requirements of s 424A of the Act in the course of the oral hearing, Mr Najim, through his adviser, was given an opportunity to make further submissions…
A supplementary statement was lodged by his migration consultants and covered some four typed pages plus attachments… In the end, I am not satisfied that there has been a non-compliance by the Tribunal with the requirements of s 424A of the Act.”
I am also satisfied, subject again to the s 441A issue later to be discussed, that the RRT complied substantially with s 424B of the Act, in relation to the invitation given orally at or about the conclusion of the proceedings on 23 November 1999, and confirmed by the RRT’s 13 March 2000 letter. As I have already indicated, such letter referred first to the circumstance that at the culmination of the hearing on 23 November 1999, the Applicant had been given until the first week in February 2000 to make enquiries in or from Sri Lanka in relation to the existence of a death certificate of the Applicant’s husband or other evidence of death, and indicated that a written submission by way of response would be satisfactory, “unless specific issues can be identified by you which may require a further hearing” (see again [11] above). As has further been recorded, the Applicant’s Solicitors responded by their comprehensive letter of 24 March 2000 (also extracted in [11] above). Not only did the RRT specify the way in which the additional information or comments might be given, depending upon what “specific issues can be identified by you …” (ie the Applicant’s Solicitors), but it also prescribed the period of time for the Applicant’s response to be within 14 days of the date of such letter. Such comprehensive response of the Applicant’s Solicitors made no complaint as to inadequacy of the time so stipulated, nor sought additional time in any event for response. I have been referred by the Applicant to the Regulations 4.35(3) and 4.35A(3) of the Migration Regulations 1994 (Cth), which respectively prescribe periods of fourteen and twenty-eight days for the giving of information or comments pursuant to s 424B(2) and (3) invitations, being fourteen and twenty-eight days commencing from the date of receipt of the Tribunal’s invitation for relevant information. Although the RRT’s letter of 13 March 2000 requested a response within 14 days of the date of dispatch in contrast to the date of receipt of such letter, and was therefore just short of the prescribed time, the subject of Regulation 4.35(3) but well short of the prescribed time the subject of Regulation 4.35A(3), yet as already pointed out, the Tribunal’s invitation was first made orally at the close of the hearing on 23 November 1999. Although the confirmatory written invitation of 13 March 2000 indicated that a written response would be sufficient, if the Applicant wished to respond at all, such invitation left open the holding of a further hearing if “specific issues can be identified by you which may require a further hearing…”.
As already foreshadowed in [15] above, the Applicant submits that there was no compliance with s 441A of the Act, which was enacted by the Migration Legislation Amendment Act (No. 1) 1998 (Cth), because of the requirement for a written invitation, and consequently there was no compliance with s 424A, and also in the circumstances of the case with s 424B, given that the oral invitation was not enough. It is at best a highly technical argument, since in the events which happened as I have recounted, the Applicant was provided with an invitation to respond within a reasonable time, and did so respond. It is common ground that s 441A formed part of the legislation that applied to decisions made by the RRT on 31 March 2000, which was the time of its Decision the subject of the present Application for Review. The compliance for which the Applicant contends, by virtue of the operation of s 441A, would have involved the dispatch of the invitation by the RRT under s 424A to the Applicant to comment on the information concerning the testimony of the Applicant’s brother John Knight, being an invitation required to be in documentary form sent physically, electronically or otherwise to the Applicant or to a person authorised by the Applicant to receive the same, and being an invitation in compliance with Regulations 4.35(3) or 4.35A(3), depending upon the ambiguity of the invitation in terms of response at an interview or in writing. I should interpolate that by clear implication, the Applicant’s Solicitors who represented her before the RRT were so authorised to receive such a communication, whether oral or in writing.
There is inconsistency in the first place however between sub-sections (1) and (2) of s 424A, in that paragraph (a) of sub-section (1) authorises the Tribunal to give to an applicant the requisite information “in the way that the Tribunal considers appropriate in the circumstances”, whereas sub-section (2) stipulates that the invitation must be given to the applicant by one of the methods specified in section 441A. The word “way” should be understood in the sense of “manner, mode or fashion” (Macquarie Dictionary). I have already pointed out that the invitation of the RRT to the Applicant to provide documentary evidence of the time of the death of the Applicant’s husband was initially extended orally to the Applicant and her Solicitors at the conclusion of the hearing of her Application on 23 November 1999, and was repeated in effect by letter to such Solicitors sent on 13 March 2000 (see [11] above), and that the Applicant did respond by her Solicitors comprehensively in writing by their letter of 24 March 2000 (see also [11] above). It would be an enigmatic result if in those circumstances, s 424A so operated by virtue of the terms of s 441A either alone or in combination with s 424B to produce a result of invalidity of the Decision.
In order to afford a sensible operation to the scheme of s 424A and s 424B, in the light of the incorporation of s 441A into s 424A by virtue of subsection (2) thereof, I am of the opinion that s 424A(2) is to be read as though the opening words thereof comprise “Subject to sub-section (1) hereof and paragraph (a) thereof in particular…”. I am unable to accept that a breach of s 424A(2) was intended by the Legislature to be attributed to the circumstance where an invitation within the purview of s 424A(1) has been extended to an applicant in a manner reasonably considered to be “appropriate” (to adopt the statutory description), otherwise than by a medium stipulated by s 441A, given that s 424A(2) upon its true construction is to be construed to have a mandatory, as distinct from a directory, effect (cf Ex parteTasker; re Hannan [1971] 1 NSWLR 804). The resolution of an inherent inconsistency within a statute, in a way which would give sensible effect to the evident statutory intention, is authorised by such authority as Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 391-2. Accordingly I conclude that there was no absence of compliance on the part of the RRT with ss 424A or 424B in the events which happened, in that the initial oral invitation is rightly to be taken into account in resolving the issue of compliance. In those circumstances, there was also no default in compliance with s 424B and the Regulations thereunder to which I have referred.
If I be wrong in my conclusion as to compliance with the scheme of ss 424A, 424B and 441A of the Act and the applicable Regulations, I would in any event in the exercise of my discretion have made an order affirming the RRT’s Decision pursuant to s 481(1)(a) of the Act, notwithstanding any such non-compliance. Plainly any such non-compliance involved no denial or withholding of natural justice on the part of the RRT in the circumstances of the case outlined in [16] above, such as to exclude recourse to the statutory expression “in its discretion”, and I would not infer any intentional contravention to have occurred: see Wimalaratne v Minister for Immigration and Multicultural Affairs [2000] FCA 964 at [19] per Katz J.
Applicant’s submissions as to compliance with s 430(1)
The case for non-compliance with s 430(1) of the Act was put on behalf of the Applicant in the following way:
(i)the Applicant’s submissions argued for the proposition that the Applicant, as a Tamil, would be in danger in Vavuniya especially, and in the north of Sri Lanka generally, and further that in Colombo in particular, she would face arrest and extortion;
(ii)although the RRT purportedly addressed such submissions to the effect that it did not accept that Tamils, just because they are Tamil, face problems in Sri Lanka (see [13-14] above), nevertheless the Applicant contended that the RRT gave “no inkling” of its response to the Applicant’s submissions in respect of the position of Tamils in Vavuniya and Colombo. The Applicant further submitted that the RRT made merely “a bare finding on a material question of fact”, and did not disclose its reasons for making such finding, contrary to what was said to have been highlighted in ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [65];
(iii)The Applicant further submitted that the present case was not one where the evidence relied on by the RRT and its reasoning did not need to be stated expressly, because the purported finding in fact made was obvious. The Applicant contended that the material which the Applicant put forward in her Solicitors’ letter of 19 November 1999 (referred to in [6] above) “seems to show that Tamils in Sri Lanka are targeted merely because they are Tamils, and that independent evidence considered by the RRT as set out over seven pages of its Decision was to the same effect”. Upon the foregoing footing, it was submitted by the Applicant that the RRT failed to do what this Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 found that the RRT was obliged to do, namely explain to the parties why the decision went the way it did (which appears to reflect the dicta “… because it did not explain why, in the face of that evidence, it came to the quite different conclusion which it did” contained in [9] of that reported decision).
(iv)In any event, the RRT failed to address the material contention of the Applicant that she had well-founded fears concerning potential persecution from the Sri Lankan army, quite apart from the police and the LTTE; in that regard, the letter of the Applicant’s Solicitors to the RRT of 24 March 2000 referred comprehensively to “the security forces” as the killers of the Applicant’s late husband.
In Durairajasingham McHugh J, sitting as a single member of the High Court, pointed out in [64] that although there was some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the RRT to refer to evidence inconsistent with its findings, the contrary view has been taken in differently constituted Full Courts, and his Honour expressed the conclusion that the following passage in Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [24] and [31] correctly sets out the effect of the obligation imposed by s 430(1)(c) and (d):
“Section 430(1) does not impose an obligation to do anything more than refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.
…
It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.”
His Honour qualified such dictum as follows:
“However, the obligation to set out ‘the reasons for the decision’ (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act.”
There is no doubt that the RRT was fully conscious of the ultimate critical issue involved in its enquiry and decision-making processes, namely the existence or otherwise of a well-founded fear on the part of the Applicant of persecution for reasons of a Convention ground. Not only did the RRT express its conclusion in such terms (see at least the last sentence of the part of the Decision extracted in [13] above), but in the introductory segment of the Decision appearing under the heading “The Refugees Convention” (which I have not earlier extracted), the statutory test and its ingredients were fully defined and illustrated. As appears from the paragraphs of the Decisions extracted in [13] above, the RRT indeed accepted that “the applicant has a general fear of harm as a result of the civil conflict in Sri Lanka”, and that there had been “large numbers of deaths reported over many years, many of them in horrible circumstances”, but that although the Applicant “may not feel safe, it is apparent that the ongoing problems there affect the whole country and most would no doubt have such a fear, Sinhalese and Tamils”, and the RRT referred to a great deal of so-called “country information” to such effect, being “country information” identified in the seven pages of the Decision commencing at the foot of page 97 thereof. For instance on page 14 of the Decision, the following appears:
“Thousands of Tamil people, including scores of possible prisoners of conscience, were arrested in the north and east of the country and in the capital, Colombo. Safeguards for the welfare of detainees were not fully implemented in many cases. Unauthorised places of detention were used, including by Tamil armed group co-operating with the security forces. In Vavuniuya, evidence emerged of three unofficial detention places run by the People’s Liberation Organisation of Tamil Eclam after a prisoner escaped.
Torture and ill-treatment were widespread… [A Tamil man] was one of 192 Sri Lankan asylum-seekers who had been returned to Sri Lanka from Senegal in February. On return, they were arrested and detained for several weeks.”
And on page 15:
“There were several reports of alleged extrajudicial executions… Among them were six people attending a party in a house near the police post. Among 20 police and home guards who appeared drunk reportedly took the victims, including two brothers aged 13 and 17, inside the police post and shot them in the compound.”
Subsequently from the “country information” documents reviewed on the ensuing pages 17 to 19 of the Decision, extracts there appear concerning the plight of the Tamil population in Sri Lanka as set out in paragraphs 1, 3, 4, 5, 8, 9 and 10 of such review.
By clear implication at least, what the RRT set out in its findings extracted in [13-14] above extends to whatever fear of harm may be harboured by the Applicant in relation to the Sri Lankan army, as well as by other sources of danger. All such material reproduced in the Decision to which I have referred demonstrates, as the Respondent has submitted, that the RRT was fully cognisant of the risks which would attend the Applicant’s return to Sri Lanka, and the justification for the Applicant’s fear of harm, but that such risks would attend as a general rule any bystander in Sri Lanka in that country’s evolution to a democratic society free of the threat of civil war. Such material is further capable of supporting the RRT’s view that the Applicant, being a middle-aged Tamil woman who has not realistically been of adverse interest to any group, be it the army or the police or other arm of government, has no well grounded fear of harm for a Convention reason. Particularly would such situation obtain, so the RRT found, if the Applicant was to live in the south of Sri Lanka, as appears from its conclusions extracted in [14] above. The circumstances and content of the RRT Decision, and in particular the parts extracted in [13-14] above, reflect the kind approach of the Tribunal approved by Gummow J in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 175 ALR 585 at [150].
For the foregoing reasons, I do not accept that the RRT Decision should be impugned for non-compliance with s 430(1) of the Act, and paragraphs (c) and (d) thereof in particular. On the contrary, I think that it did so comply.
Questioning by RRT of another applicant for review in advance of hearing of review application to be subsequently brought by relative of such witness, upon a fact or material to such subsequent application
During the course of argument, I expressed tentative concern with the course taken by the RRT, in the context of preceding review proceedings brought by the Applicant’s brother John Knight, of questioning him concerning a critical issue involved in the Applicant’s own application, being an issue involving relevance (ie approximate time of her late husband’s death), as well as the credibility, of the Applicant’s case for refugee status. I referred to the distantly analogous situation of a witness under cross-examination being asked if he or she contradicted what another witness had earlier testified on the same subject or about the same matter: see Phipson on Evidence 15th ed. 2000 p.50, para 11-19, and R v Foley [1998] QCA 225. Counsel for the Applicant fairly conceded by supplementary written submission that the circumstances were not sufficiently analogous, and I think that the concession was rightly made. The subsequent researches of Counsel for the Respondent produced the following response in support of the RRT’s conduct in this regard (see [8] above):
“The Tribunal is not bound by the rules of evidence (s 420(2)(a)) and may get any information that it considers relevant (s 424(1)). In conducting a review it is obliged to –
(1)pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420(1));
(2)pay regard to all of the material and evidence before it and make findings on all of the material questions of fact raised by that material and evidence (Singh (ante) at [52]); and
(3)arrive at the correct or preferable decision.
Ewert [1972] VR 308 suggests that there is no inherent unfairness in the same Tribunal member hearing applications that raise common issues. For similar reasons, there need be no inherent unfairness in the Tribunal using evidence obtained in one matter in coming to a decision in another. By doing so, the Tribunal uses its resources economically and ensuring it takes into account all the available evidence. So long as the Tribunal gives each applicant the opportunity, prescribed by statute, both to comment and meet adverse material, I can see no basis for arguing that this practice is legally erroneous.”
I therefore consider that it is inappropriate to further consider the matter.
The present Application should be dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.
Associate:
Dated: 19 March 2001
Counsel for the Applicant:
Mr C.H.P. Colborne
Solicitor for the Applicant:
Craddock Murray & Neumann
Counsel for the Respondent:
Mr S.B. Lloyd
Solicitor for the Respondent:
Australian Government Solicitor
Date of Hearing:
18 December 2000
Date of Judgment:
19 March 2001
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