S1443 of 2003 v Minister for Immigration
[2005] FMCA 1880
•20 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1443 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 1880 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – consideration of country information – whether the Tribunal misinterpreted law – whether invitation to attend hearing was proper – whether the Tribunal erred in rejecting applicant’s evidence – whether interpreter translated evidence correctly –abuse of process – applicant attempting to re–litigate – res judicata – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.422B, 424, 424A, 425, 476
SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289
Abebe v The Commonwealth (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs (unreported, Full Court of the Federal Court, delivered 7 November 1997)
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Sathiyanathan v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 1168
Sathiyanathan v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCAFC 210
Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306
| Applicant: | APPLICANT S1443 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 797 of 2004 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 19 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms S A Mason |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Refugee Review Tribunal be joined as a party to these proceedings.
That the application be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $6000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 797 of 2004
| APPLICANT S1443 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter the applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 October1998 affirming a decision of the respondent not to grant the applicant a protection visa. Consistent with SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, I join the Tribunal as a party to the application.
The applicant, a citizen of Sri Lanka, arrived in Australia on 16 May 1997 and applied for a protection visa on 23 June 1997. On 30 June 1997, a delegate of the respondent refused the grant of a protection visa and on 4 July 1997 he sought review of that decision with the Tribunal.
The applicant was previously a party to the Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 class action in the High Court of Australia. That proceeding was remitted to the Federal Court of Australia by order of Gaudron J made on 25 November 2002 and was subsequently dismissed by Emmett J on 20 February 2004 in proceedings S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289.
The applicant relies on his amended application filed 30 September 2004. In that application he alleges as follows:
a)The Tribunal should have received from DIMIA and consider the documents and country information on Sri Lanka referred to in part B of the DIMIA’s decision. The RRT did not bring to my attention and give me an opportunity to respond or comment to the country information and materials which the RRT relied to reject my application which were adverse to my review application lodged with the RRT. Therefore the RRT failed to accord my application for review with Natural Justice in making the RRT decision;
b)The interpreter at the hearing before the Tribunal made mistake in interpreting. As a result I was denied the procedure fairness and was not given a genuine invitation to appear before the Tribunal within the meaning of s.425 of the Migration Act 1958 (Cth) (“the Act”); and
c)The Tribunal found that my suggestion that the police and army have been merged under the Prevention of Terrorism Act is likewise not supported by the Independent evidence available which indicates that they remain separate organisation, the Tribunal fell into jurisdictional error in rejecting my evidence in relation to this matter.
The Tribunal decision
The applicant attended a Tribunal hearing on 21 September 1998 at which he gave evidence. He was assisted by a solicitor and a Tamil interpreter.
In its decision the Tribunal sets out the applicant’s claims and the evidence. The Tribunal noted that the applicant appeared visibly distressed during his evidence. The Tribunal did not consider the applicant to be feigning emotion but found significant problems with his evidence.
The Tribunal found there to be inconsistencies in the applicant’s evidence, notably, the evidence relating to his detention in February 1997 which conflicted with the evidence contained in a letter which purported to be from his lawyer in Sri Lanka. Inconsistencies as to whether the applicant was detained in a camp or a police station arose from both in the applicant’s direct evidence and the applicant’s evidence and the purported letter from the lawyer.
The Tribunal found that the applicant’s suggestion that the police and the army had merged under the Prevention of Terrorism Act was not supported by independent country information, namely, the US State Department Country Report on Human Rights Practices for 1997 in relation to Sri Lanka. The Tribunal took an adverse view as to the applicant’s credibility. It accepted however that two of the applicant’s brothers may have moved from Jaffna, that the applicant together with others may have been rounded up and detained in 1985 and that these people may have been tortured by security forces. The Tribunal also accepted that the early part of 1985 the applicant’s family had moved to Jaffna and that the applicant may have joined the LTTE student movement.
The Tribunal found that these matters did not amount to a well founded fear of persecution for a Convention reason if the applicant returned to Sri Lanka. It noted particularly that the applicant had passed safely through Government security checks in 1995, established a business and experienced no major problems with the Sri Lankan security forces.
The Tribunal noted that the applicant worked from September 1996 until January 1997 in Japan and then returned to Sri Lanka. This suggested that at least at that time the applicant did not fear persecution on his return to Sri Lanka. His fear was said to have arisen from events which occurred after his return from Australia in February 1997 which events the Tribunal did not accept as having occurred.
The Tribunal considered whether the applicant was a refugee simply by reason of the experience of many people like him in the North and East of Sri Lanka and the overall human right situation in Sri Lanka particularly in regards to Tamils. However, the Tribunal did not consider that the evidence before it established that all Tamils have a well founded fear of persecution for the purposes of the Convention merely by reason of their race (or nationality in the event that Tamils are regarded as a nation).
Ground 1
It was contended by the applicant that the Tribunal should have received the independent country information considered by the respondent’s delegate. The applicant in making this contention has not shown the Court which documents allegedly were not before the Tribunal when it sent an invitation to the applicant to attend the hearing. The applicant has not established before the Court the way in which he was allegedly misled by the Tribunal in relation to these documents.
The applicant also contended that the Tribunal failed to bring to his attention country information adverse to his application before the Tribunal. The Tribunal’s decision pre-dates the commencement of ss.424A and 422B of the Act. I am satisfied on a fair reading of the Tribunal decision that the Tribunal correctly complied with its common law obligations to accord procedural fairness to the applicant.
The Tribunal rejected the applicant’s claims on the basis of its credibility findings. Those findings were formed on the basis of the inconsistencies in the applicant’s evidence. At the hearing the Tribunal gave the applicant an opportunity to comment on the inconsistencies and also referred to and relied on country information in making its decision.
Ground 2
It was contended by the applicant that the interpreter at the Tribunal hearing failed to translate his evidence correctly. I note that the applicant has not provided tapes or a transcript of the hearing. The applicant alleges that the Tribunal erred, namely:
asking the interpreter for an opinion on this confusion whilst it may have been very appropriate to seek an independent opinion about this confusion. I am unable to direct the scenario although it is so many years after the hearing I am unable to establishing whether this is acceptable and legal to conclude on such opinions given the fact that the interpreter was the core medium of this conversation and evidence caught up in the confusion and argument.
I am not satisfied that the Tribunal fell into jurisdictional error by reason of what is being said here. In my view this was an attempt by the Tribunal to accord procedural fairness and clarify beyond doubt a matter for the Tribunal and avoid confusion between the terms “army” and “police”. The Tribunal sought clarification at the request of the applicant’s representative and the applicant’s representative then had an opportunity to question the interpreter (which he did not) and the interpreter was, at all times, providing a translation, rather than an opinion or evidence (See in particular page 124 of the Court Book).
The Tribunal plainly complied with s.424 of the Act by inviting the applicant to the hearing to give oral evidence and invitation which the applicant accepted.
Ground 3
The applicant claimed that the Tribunal fell into error by rejecting the applicant’s evidence. The weight attached to country information is a matter for the Tribunal and is not subject to review by the Court as stated by Gummow and Hayne JJ at [197] in Abebe v The Commonwealth (1999) 197 CLR 510:
In the end, the criticism made by the applicant of the Tribunal’s reasoning are criticism of the factual findings it made and are criticism that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.
In Chand v Minister for Immigration and Ethnic Affairs (unreported, Full Court of the Federal Court, delivered 7 November 1997), per von Doussa, Moore and Sackville JJ, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [281]-[282] said at [11]:
The RRT is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.
Further, as to the valid use of independent country information the Full Court of the Federal Court stated in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]:
There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
The weight given by the Tribunal to the independent country information was part of its fact finding and does not give rise to jurisdictional error.
In any event given the background to these proceedings the application for review should properly be dismissed as an abuse of process. The applicant has been involved in a series of proceedings. In particular on 26 August 1999, Branson J in Sathiyanathan v Minister for Immigration & Multicultural & Indigenous Affairs [1999] FCA 1168 dismissed the applicant’s application under s.476 of the Act.. On 2 March 2000, the Full Court of the Federal Court in Sathiyanathan v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCAFC 210 dismissed the applicant’s appeal from the judgment of Branson J. As noted above the applicant was also a party to the Muin/Lie (supra) class actions which was dismissed by Emmett J on 20 February 2004.
In Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306, Wilcox J found that even if res judicata did not apply (having found that it did) said:
…it certianly seems to fall within the Anshun principle. If that be correct, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that terms discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378…
In my view the application is an attempt to re-litigate the same Tribunal decision which was the subject of proceedings dismissed by both the Federal Court and the Full Court. In this regard, I note that ground 1 is essentially the same ground agitated in the applicant’s draft order nisi application dismissed by Emmett J. Although grounds 2 and 3 of the amended application were not grounds raised before Branson J and the Full Court this matter has, in my view, been fully explored.
I see no apparent error, let alone jurisdictional error in the Tribunal decision. Accordingly, I propose to dismiss the application with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Legal Associate: Peter Smith
Date: 20 December 2005
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