S1486 of 2003 v Minister for Immigration

[2005] FMCA 1135

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1486 of 2003 v MINISTER FOR IMMIGRATION [2005] FMCA 1135

MIGRATION – Refugee – fear of harm for the Convention reason of political opinion – Tribunal’s failure to ask the correct questions in relation to the imputation of a political opinion – no reviewable error.

Migration Act 1958, ss.476(1), 481, 417
Federal Magistrates Court Rules 2001, rules 13.10(c), 21.02(2)(a)

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Somanader and Others v Minister for Immigration and Multicultural Affairs and Anor [2000] FCA 1192
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Dranichnikov v Minister for Immigration and Multicultural Affairs, Re Minister for Immigration [2003] HCA 26
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264

Applicant: S1486 OF 2003

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2433 of 2004

Judgment of: Nicholls FM

Hearing date: 23 February 2005

Date of Last Submission: 21 February 2005

Delivered at: Sydney

Delivered on: 26 August 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. Beech-Jones

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Refugee Review Tribunal to be joined as the second respondent in the proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2433 of 2004

S1486 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on the 30 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 August 1999 and notified to the applicant by letter dated the same date to affirm the decision of a delegate of the respondent Minister made on 29 October 1997 to refuse a protection visa to the applicant.

2. The applicant is a citizen of Sri Lanka who arrived in Australia with his wife and two adult children on 15 July 1997. All four applied for protection visas with the respondent’s Department on 27 August 1997. Only the applicant husband made specific refugee related claims and as the wife and two children have not made any separate Refugee Convention related claims, the Tribunal dealt with their application as being dependent on the outcome of the applicant's application. In any event, only the applicant husband has made this application before this Court. The applicant had been employed since 1956 in various positions in the Sri Lankan Customs Department and claimed to fear harm from the LTTE and the Sri Lankan government because of his actions in opposing crime and corruption. The applicant is of Tamil ethnicity and specifically claimed:

   1)That as a Jaffna Tamil since his recruitment into the Customs service he was subjected to discrimination and humiliation (CB 32).

   2)That during the riots in Sri Lanka in 1977 he was assaulted in public and had to take refuge along with other Tamils (CB 32 .8).

   3)That he was severely affected in Colombo during the 1983 riots and had to return to Jaffna (CB 32.9 to CB 33.1).

   4)That he subsequently had to pay the LTTE to be allowed to move his family to Colombo (CB 33.5).

   5)While working for the Customs service he was threatened by the LTTE and his superiors, variously, in 1989, 1990 and 1993 because of his role in fraud investigations.

   6)That from 1993 he started to face real harassment which included abductions of himself and his son by the LTTE.

   7)After ongoing harassment and a failure to be promoted to a position of the director of Customs, a position to which he claims he was entitled (CB 35.4), he filed an application to the Sri Lankan Supreme Court for relief.

3. The sole ground of the application prepared with the assistance of the applicant’s former solicitors is:

   “The Tribunal committed jurisdictional error by failing to ask itself the right question; that being whether the applicant’s resistance to corruption and criminality was conduct by which a political opinion could have been imputed to him."

   I also have before me for the applicant:

   1)An affidavit affirmed by the applicant on 1 December 2004. I note that the applicant says at paragraph 1:

   “My wife and I are applicants to this proceeding”.

   There was nothing before me to show that the applicant’s wife sought to be joined in this application and subsequently at the hearing before me I confirmed with the applicant that he was proceeding on his own behalf.

   2)A document headed “Applicant’s Averment” dated 9 December 2004 with attachments. I took this to be in the nature of submissions.

   3)“Applicants Averment” filed 9 February 2005. I also took this to be in the nature of submissions with attachments.

   4)The applicant's affidavit of 21 February 2005.

4. For the respondent I have:

   1)A Notice of Objection to Competency, not subsequently pressed.

   2)A Notice of Motion seeking dismissal on the alternative base of issue estoppel, Anshun estoppel, and that pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001, the proceedings are an abuse of process of the Court.

   3)The affidavit of Emma Jayne Knight, a solicitor in the employ of the respondent’s solicitors, sworn on 24 November 2004.

   4)The affidavit of Emma Jayne Knight, sworn on 23 December 2004.

5. When this matter first came on for hearing, the applicant's solicitors had ceased to act for the applicant some few days prior to the hearing on 9 December 2004. In these circumstances, to enable the applicant to obtain legal advice, or in the alternative to better prepare himself for the hearing, the matter was adjourned until 23 February 2005. On that date the applicant appeared unrepresented and made oral submissions on his behalf in English. I confirmed with the applicant, as I had done so on the previous hearing date, that he was content to proceed in English on the basis that he was competent in English and that if he encountered any difficulties that he would immediately indicate this to the Court. The hearing proceeded on that basis.

6. Mr. Beech-Jones for the respondent Minister pressed the Notice of Motion, and further submitted in the alternative that the application in any event lacked substance and could be dismissed on that basis. The background to this case, as set out in the affidavit of Emma Jayne Knight, sworn on 24 November 2004 with annexures, and in part in the applicant's affidavit of 21 February 2005 and written submissions of 9 December 2004 is:

   1)On 19 August 1999 the Tribunal affirmed the decision of the delegate of the respondent to refuse a protection visa to the applicant.

   2)On 16 September 1999 the applicant, through his former solicitor, sought review in the Federal Court and on 24 March 2000 Katz J. made orders by consent that the application be dismissed with costs.

   3)On 3 May 2000 the applicant's former solicitor filed a further amended statement of claim in the High Court of Australia. The applicant was included in the additional schedule of represented parties to this statement of claim.

   4)On 25 November 2002 Gaudron J. made several orders in relation to these proceedings before the High Court and on 29 May 2003 a draft order nisi was filed and the proceedings were remitted, as a result of the orders of Gaudron J., to the Federal Court of Australia.

   5)On 20 February 2004 Emmett J. made orders refusing the application for an order nisi.

   6)On 30 July 2004 the applicant sought relief in this Court in relation to the Tribunal decision which was the object of the litigation above.

7. Mr. Beech-Jones pressed the Notice of Motion on the behalf of the respondent Minister and sought dismissal of the application on any or all of the three basis of issue estoppel, Anshun estoppel or an abuse of process of the Court pursuant to rule 13.10(c) of the Federal Magistrates Court rules 2001. In support of the Notice of Motion the respondent argued:

   1)That the judicial review application filed in the Federal Court (annexure “B” to affidavit of Emma Jayne Knight) reveals amongst others, a ground of the application alleging the Tribunal's decision involved an error of law being any error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. This relied on s.476(1)(e) of the Act as it was then.

   2)That the sole ground in the application currently before the Court, drafted with the assistance of the applicant's former solicitor's is that:

   “The Tribunal committed jurisdictional error by failing to ask itself the right question; that being whether the applicant’s resistance to corruption and criminality was conduct by which a political opinion could have been imputed to him."

   3)That this alleged error was one that could be seen to fall within the earlier ground of error of law because it is a failure to ask the right question. It is a failure to apply the law to the facts as found.

   4)That the decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 confirms that the jurisdictional error now being asserted was an error of the kind that fell within the former s.476(1) of the Act.

8. The respondent relies on Somanader and Others v Minister for Immigration and Multicultural Affairs and Anor [2000] FCA 1192 where Merkel J. at [35] said:

   "It is now well-established that judgements or orders by consent of the parties are as efficacious and binding as those pronounced after a contest. Thus, such judgements or orders can give rise to a plea of res judicata and issue estoppel as a bar to the litigation of the same issues between the same parties in subsequent litigation: see Spencer Bower, Res Judicata, 3^rd ed, 1996, [38]-[40].”

   Further at [37]:

   “The position is the same with issue estoppel. The fact that the judgement is by consent does not detract from its conclusive effect upon the issues determined by it, but the issue estoppel operates only as to those matters which were necessarily decided by it.”

   And then further at [53]:

   “Many of the difficulties that often arise in identifying the cause of action determined by a consent order do not arise in the present case. Each of the seven unparticularised grounds in the application under Pt 8 were couched in very wide terms. Each of the grounds, if made out, would, in the usual course, entitle the applicant to seek relief under s.481(1) of the Act. The width of the relief that may be granted under that subsection includes setting aside the RRT decision, referring the matter back for the consideration, declaring the rights of the parties in respect of any matter to which the decision relates and directing any of the parties to do so, or refrain from doing, any act where the court considers that ‘necessary to do justice between the parties’. On any view the relief that may be granted is wider than the prerogative relief available in any proceeding under s.75(v) of the Constitution.”

   And at [50]:

   “The dismissal orders must therefore be seen as finally disposing of the subject of the litigation, namely each of the seven ground of review outlined in the application. That conclusion must follow from the fact that, is each ground can give rise to a right to judicial review, the dismissal necessarily decided that none of them gives rise to a right of judicial review of the decision or to any of the remedies available under s.481(1) of the Act.”

   The respondent’s submission in relation to the case before me is that the order of Katz J. made by consent, decides that at the very least the error of law ground as set out in the first application, could not be made out. Therefore it must follow that in relation to the current ground now put forward, the applicant is estopped from raising this ground which falls within the parameters of what was embraced by the earlier alleged error of law.

9. The respondent also submits that the dismissal of the proceedings in 1999 also established an Anshun estoppel as between the applicant and the respondent, and relies on Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 for the proposition that the new ground, that is, the ground now being put forward, is so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. The respondent's position is that while there is discretion in the Court to allow a new ground to be raised, there was nothing that could be shown in terms of ‘exceptional circumstances’ that would warrant the Court considering the new case, which could have been raised in the first proceedings, now being allowed to be raised. In the alternative, the respondent submitted that there was, in any event, no substance to the claims now being made by the applicant before the Court.

10. The Tribunal's decision record is set out at Court Book 176 to CB 199. The Tribunal set out the applicant's claims and evidence at CB 179.4 to CB 190.3 and saw the specific complaints as:

    1)As a Sri Lankan of Tamil ethnicity the applicant suffered discrimination and humiliation in the customs service and otherwise.

    2)That he was affected by communal riots in Colombo in 1958 and then again in 1977.

    3)That he was affected as a result of riots in 1983 where he had to return to Jaffna before coming back to Colombo and following threats from the LTTE he had to pay to be allowed to move his family to Colombo.

    4)Even though he was a senior officer in the Customs service and had been promoted on a number of occasions he had been harassed, because of his role in investigating fraud, in particular in 1989, 1990 and 1993.

    5)That from 1993 he started to face “real harassment” which included the abduction of himself and his son by the LTTE.

    6)That a junior Customs officer was promoted above him, that he feared for his life because he had information relating to the conduct of illegal transactions in and out of a Colombo port, and that he was threatened at gunpoint by LTTE militants and followed by unknown people (CB 182) and that in an attempt to protect himself he filed a Fundamental Right Application against the Department of Customs in the Supreme Court of Sri Lanka in May 1997. As a result of all of this he was forced to flee the country.

    7)The applicant claims that he fled Sri Lanka and fears return as he had no protection from the government and the LTTE militants.

11. The Tribunal's “Findings and Reasons” are set out at CB 191.5 to CB 198. The Tribunal made a preliminary note at CB 91.4 that it was satisfied that the applicant’s return to Sri Lanka in 1996 (after having come to Australian in 1995) indicated that he then did not view prior incidents in Sri Lanka with the seriousness he now claims to attach to them, nor regard the ongoing circumstances of himself and his family as Tamils in Colombo as giving rise to a well founded fear of persecution. The Tribunal accepted the applicant was a middle level and then senior Customs officer in Colombo over a number of years and particularly between 1990 and 1997, and that he was involved in duties and investigations which led him into conflict with those involved in illegal smuggling and made him aware to some extent that they were protected by corrupt connections. The Tribunal however took a strong view that the applicant had consciously sought to embellish these matters by suggesting that the things that happened to him were because he was a Tamil, and that the LTTE also played a key role. The Tribunal relied on the matters raised at the hearing it conducted with the applicant and it noted that at the hearing the applicant appeared to add to and to modify his evidence to provide this emphasis (CB 192 .8). The Tribunal found :

    1)That in relation to threats from a particular criminal in 1989, that it was quite satisfied that this had nothing to do with the applicant’s race or anything other than his official duties. In the absence of any corroborative evidence the Tribunal did not accept that Singhalese (as opposed to Tamil) Customs officers were never threatened in this way, or that the police refused to act on any threats by criminals (CB 192.8).

    2)That when the details of the March 1990 incident (involving a government bond store in the applicants charge, the LTTE claiming goods in the store, and claimed subsequent perceptions that the applicant supported the LTTE) are examined there was no evidence to give rise to any persecution or any difficulty that it was Convention related (CB 192.9 to CB 193.1).

    3)The Tribunal did not accept that the applicant would have been perceived to have had a pro LTTE opinion attributed to him and that there were no significant adverse inferences drawn, as the applicant was promoted to a more senior position less than two years later (CB 193 .2).

    4)The Tribunal accepted that threats were made by two particular officers of the STF (security forces) in 1994 and that the applicant was instrumental in an investigation which uncovered their involvement in smuggling cigarettes, but was satisfied that this threat did not give rise to well founded fear of persecution for a Convention reason (CB 193.4).

    5)In relation to an incident in September 1995 when the applicant claimed that he had been held for two days and threatened, the Tribunal had great difficulty in accepting that it was the LTTE who threatened him, rather than criminal organisations involved in the ongoing large scale smuggling. The Tribunal found as altogether unconvincing the applicant's belated assertion that he knew it was the LTTE because he recognised some of them from when he was working in Jaffna which was almost 20 years earlier. The Tribunal also found that even if it had accepted that it was the LTTE who took and threatened the applicant on this occasion that this of itself could not be an incident showing that the applicant was threatened for any Convention reason because it was satisfied that the incident was described by the applicant as involving persons and groups wishing to protect their illegal smuggling operations. Any threats that were directed against the applicant were because he was in a position to threaten those operations, and not because of his ethnicity, imputed political opinion or any other Convention reason (CB 193.8).

    6)The Tribunal had difficulty in accepting at face value the applicant's general claims about harassment of his family members especially in light of the repeated propensity in his statements and at the hearing to embellish, or to add “glosses” to suggest Convention motivation. In all circumstances, the Tribunal was not satisfied that there had been serious harassment or other conduct directed against the applicant's family members amounting to persecution for a Convention reason (CB 194.5).

    7)The Tribunal found that the whole of the applicant’s family was, at the time of departure from Sri Lanka, well established in Colombo and although there were some inconveniences, such as security checking, the Tribunal did not accept that there is a real chance that the applicant or his family would be suspected or targeted or suspected as being LTTE supporters simply on the basis of ethnicity or origin in the north of Sri Lanka (CB 194.6).

    8)The Tribunal found it extremely implausible that a person holding a senior position in the Customs investigative unit should have suffered threats and attention as claimed and yet made no serious attempt to provide details of these incidents to the authorities. The Tribunal did not accept that there was no one to whom the applicant could have complained in circumstances where his immediate senior officer was believed to be corrupt (CB 194.9).

    9)The Tribunal did not find it plausible that if corrupt officials were able to induce police or criminal investigators to put pressure on the applicant in this regard as claimed, that they should proceed by first confirming to the applicant that the corrupt officials were in league with the LTTE. The Tribunal was satisfied that the applicant had a strongly held sense of grievance about promotion issues and attributed this, in part, to corrupt officials, and was also satisfied that many of the other matters alluded to by the applicant represent a considerable embellishment on the applicant's actual experiences (CB 195.4). The Tribunal found as highly implausible that significant elements of the security forces, or government, should be in collusion in relation to the importation of drugs, arms and other goods with the very organisation, that is the LTTE, in which they were engaged in a notoriously bloody conflict (CB 195.7).

    10)In any event the Tribunal found that even if it accepted at face value all of what the applicant said about the LTTE in the problems that he faced, it remained that the difficulties the applicant claimed were in relation to corruption and criminal activities, whether by the LTTE or others, and did not amount to persecution of the applicant because of his ethnicity or actual or imputed political opinion or any other Convention reason (CB 196.6).

    11)The Tribunal further found that even if the applicant was harassed by the LTTE in Colombo it was open to him to seek the assistance of the security authorities and that the applicant was unable to maintain that the Sri Lankan Government condones or fails to act in relation to any threats or harm by the LTTE (CB 196.9). As to the applicant's claimed difficulties in relation to the LTTE in Jaffna, the Tribunal was not satisfied that this could be said to be circumstances to provide a basis for a well founded fear of persecution in the future as neither the applicant or his family had lived in an LTTE controlled area for some time and did not claim to have any property remaining in Jaffna (CB 197.3).

    12)In all, the Tribunal found that it was satisfied that the applicant had elaborated and embellished his evidence about threats from security forces and criminal investigators, that it was not satisfied that the applicant had made adequate attempts to avail himself of the normal protection of authorities, that the harm feared in all his various claims was not for a Convention related reason, and that considering the evidence as a whole the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention. On that basis the Tribunal affirmed the decision not to grant a protection visa to the applicant.

1. The applicant's sole complaint in his application to the Court is that the Tribunal failed to ask itself the right question, being whether the applicant's resistance to corruption and criminality was conduct by which a political opinion could have been imputed to him. The applicant makes reference to this ground in paragraph 7 of his affidavit of 21 February 2005 where he states that the racial strife in Sri Lanka is based on the political manoeuvring between warring parties in a destructive civil war that caused the conservative Tamil community to disperse. The applicant’s assertion is that, as against this civil strife and the impact on Tamils, that is, the conservative Tamil community, should have led the Tribunal to ask whether the applicant's particular resistance, as he puts it, to corruption and criminality could have been the basis for an imputation of a political opinion, that is a particular political opinion, being ascribed to him. The applicant's various claims, by way of the documents that he has put before the Court or his submissions at the hearing before me, do not provide any real detail as to what the applicant's supporting argument may be in putting forward this complaint. However, I saw the applicant's complaint as being, that he had been involved in combating criminal activity and corruption, as against a background of civil war and ethnically based unrest, as a Tamil working within the government structure, and that his combating of crime and corruption and could have led some to have imputed a political opinion to him. It is not clear from the applicant's material before the Court as to who it was that specifically would have imputed this political opinion to him but in the context of all of the applicant's claims this could have been either the government, the LTTE or in the context of the conspiracy that he alleged as between the government colluding with the LTTE in certain regards, or both.

2. It is clear from its “Findings and Reasons” that the Tribunal did address the issue of the applicant dealing with criminal matters and issues of corruption. At the CB 192.4 the Tribunal says:

   “The Tribunal accepts that the Applicant was a middle-level and senior Customs officer in Colombo over a number of years, and in particular between 1990 and 1997… The Applicant was involved in duties and investigations which led him into conflict with those involved in illegal smuggling and made him aware that they were (to some extent at least) protected by corrupt connections. On several occasions the Applicant was directly threatened to abandon particular investigations, and in most instances he appears to have done what was demanded.”

   Further, the Tribunal looked at threats from a particular criminal in 1989 (CB 192.8), looked at the incident of March 1990 involving a situation in sensitive political circumstances where the applicant sought guidance from his superiors involving the release of goods from bond (CB 193.2). The Tribunal at CB 193.4 looked at threats made by two particular officers of the STF in 1994, the relevance being that the two officers were part of the corrupt activities complained of by the applicant, and the Tribunal looked at the incident of September 1995 where he claims to have been had detained in order to make him abandon any investigations into large-scale smuggling operations. Even further, the Tribunal also looked at the claim relating to the kidnapping of the applicant's son in March 1996, and with the situation in 1995 or 1996 when he was threatened by a smuggler in his office and believed his own immediate superior to be corrupt. The Tribunal dealt with each of these instances of the applicant dealing with criminal matters and with corruption and found variously, that it did not accept that all of the applicant’s claims were plausible. In relation to the reports of the LTTE involvement in the smuggling of arms and drugs, while it expressly accepted that while the applicant was to a lesser or greater extent under pressure from criminal elements in relation to the performance of his duties, it did not accept that the LTTE was a significant player in this or that there was a conspiracy involving senior politicians in both major parties, the security forces or significant elements of them, corrupt senior officials and major criminal organisations. It found it highly implausible that significant elements of the security forces of the government should be in collusion in relation to the importation of drugs and arms and other goods with the very organisation, that is the LTTE, with which they were engaged in a notoriously bloody conflict. The Tribunal clearly dealt with each of the applicant's claims in this regard as it related to the critical question that the Tribunal needed to ask and that is, whether the applicant had a well founded fear of persecution for a Convention related reason. The Tribunal was not satisfied in relation to the claims involving criminal activities and corruption, and the applicant's actions in relation to these issues, that these would give rise to a well founded fear of persecution for a Convention reason in the circumstances put forward by the applicant. Even accepting that the applicant's complaint now is that there was an ancillary question arising from the circumstances of what he had put before the Tribunal, namely that it was possible for a political opinion to have been imputed to him because of his resistance to corruption and criminality, it is clear that the Tribunal addressed this issue, firstly by dealing with the critical issue of a well founded fear and finding variously that it was not satisfied or that the claims were implausible, but even more directly when at CB 196.5 the Tribunal said:

   “Even if the Tribunal accepted at face value all that the Applicant said about the leading role of the LTTE in all this, it remains the case that his stated difficulties related to his particular position and arise from corruption and criminal activities (whether by the LTTE or others) do not amount to persecution of himself because of his ethnicity or actual (or imputed) political opinion or any other Convention reason.”

3. It was clear, based on the applicant's own statement that it was because of the way he discharged his duties that he found a lot of opposition from criminals who threatened him in order to stop his activities against them, and that the danger for him arose because of what he knew, and what it was felt he may reveal about criminality and corruption. That the Tribunal found that even if a political organisation such as the LTTE was involved in this criminal activity, or even the threat, does not amount to establishing that the motivation for the harm feared is political. The Tribunal clearly found that anyone who sought to harm the applicant, even to the extent that it accepted some of the applicant's claims, would not be because of a political opinion that he held. Clearly in the extract above it also looked at the issue of imputed political opinion, or that he would be perceived to hold a view in opposition to corruption or criminality, in a general sense because of what he had done in the past and might possibly do in the future. The Tribunal found that none of this related to the necessary Convention reason. The Tribunal addressed the correct question, and that is whether the applicant would suffer harm for any Convention reason, and clearly answered that question in relation to imputed legal opinion in the negative, and it gave reasons for this finding. The applicant's sole ground of complaint therefore in his application cannot, on a factual basis, be made out. Nor can I see anything in the material before me to suggest that the applicant was a member of a group of persons, as for example, was found by the High Court in the case of Dranichnikov v Minister for Immigration and Multicultural Affairs, Re Minister for Immigration [2003] HCA 26 where what arose from the circumstances in that case was a situation where businessmen in Russia, complaining about criminal activity, were seen as a group of persons for the purposes of the Convention.

4. The applicant has put forward a large amount of additional material in support of his case. The only other possible ground that could be discerned from this material is that in paragraph 16 and paragraph 19 of his affidavit of 21 February 2005, the applicant makes reference to the Tribunal's findings being based on adverse materials. The applicant appears to refer to the Tribunal's decision record and in particular to the independent country information at CB 195.8, variously at CB 196, CB 197.8 and CB 198.4. The applicant's complaint appears to be that the Tribunal preferred this information to the information the applicant provided in making its decision and that some of the materials, although the applicant did not specify which, were undisclosed to him and that this constituted a denial of procedural fairness. I note that the Tribunal’s decision predated the introduction of s.422B of the Act. Beyond the reference to undisclosed materials the applicant has put no evidence before the Court that the substance, at least of the information contained in the materials on which the applicant relies, was not put to him at the hearing before the Tribunal. At best, it appears that the applicant's complaint is that he was not given all of the actual material upon which the Tribunal relied. There is of course no obligation on the Tribunal to give all of the material before it. The obligation is that the applicant understand the substance of the information and that he be given an opportunity to comment. The Tribunal's decision record shows that primarily it was with the applicant's own evidence that the Tribunal had difficulty on the basis of credibility and found some of the claims to be exaggerated and implausible. To the extent that the Tribunal's record of the hearing before it is unchallenged by any contrary evidence. The Tribunal record shows that it discussed with the applicant at the hearing before it each of the issues against which it used country information as background in the making of its decision. To the extent that paragraph 9 of the applicant's affidavit makes mention of this undisclosed material, it appears that this is in the context of the sole ground of complaint in the applicant's application, that the Tribunal failed to ask itself the right question. In this regard, I have already dealt with this issue. But even in the statutory context, to the extent that the Tribunal relied on independent country information, on what is before me, this was information that fell within the exception contained in s.424A(3)(a) from the requirement contained in s.424A(1) to give any such information to the applicant (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264).

5. Further, at the hearing before me the applicant's real complaint in relation to these unspecified documents appeared to be that this information did not reflect reality and that they were not accurate. In this regard, I note that the applicant told me at the hearing before me that at the end of the inquiry as he put it, he was given the documents referred to at CB 196 and that he was provided an opportunity to make subsequent comment, but that what he said was not accepted. The applicant’s real complaint appears to be that the Tribunal did not accept his version of events, but preferred the adverse information found in the documents. On what is before me, this was open to the Tribunal. On this basis I can see no error in what the Tribunal has done in this regard.

6. While the Tribunal relied on some independent country information by way of background it is clear that its ultimate finding relied on its view of the credibility of the matters put forward by the applicant and its findings that the applicant had embellished some matters and that other matters were implausible. Further, the Tribunal could not find the necessary Convention nexus for any of the claimed fear of harm. The applicant’s sole ground is not made out nor can I see any other error on the part of the Tribunal in the way that it approached its task, and made its decision. On this basis the application is dismissed.

7. I note however that at CB 198.6 the Tribunal made reference to the humanitarian aspects of the applicant claims as distinct from those claims which give rise to a claim of Refugee status in terms of the Convention definition. The Tribunal noted that it had no jurisdiction to make such a determination and confirmed that this is a matter solely within the Minister's discretion. It is not often that Tribunals even in a somewhat indirect fashion such as this make reference to the Minister's discretion pursuant to s.417 of the Migration Act. While it is, of course, quite outside the role of this Court to look at the humanitarian issues related to this case and their relationship with s.417 and any possible intervention by the Minister, I note the Tribunal's reference in this regard and commend the Tribunal for making it. At the hearing before me the applicant appeared as a person of dignity and bearing who had given good service over a considerable period in fighting crime and corruption in his home country and who now felt a sense of rejection and alienation from the authorities who did not recognise, as for example in his being passed over for more senior promotion, the contribution that he had made. Given the humanitarian aspects referred to by the Tribunal, it may be appropriate for those who advise the Minister in these matters, to seek her views on the exercise of her power to intervene with a more favourable outcome for the applicant. It is of course a matter for the Minister as to whether she wishes to consider the humanitarian aspects attendant on this case.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  26 August 2005