S1907 of 2003 v Minister for Immigration
[2005] FMCA 505
•27 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1907 OF 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 505 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal misunderstood or failed to take into account integers of the applicant’s claim or failed to make a finding on an aspect of his claims – whether in not putting independent information or proposed use of such information to applicant Tribunal denied him procedural fairness. |
| Migration Act 1958, ss.424A(1), 424A(3)(a) |
| Muin v Refugee Review Tribunal& Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966 Craig v South Australia (1995) 131 ALR 595 Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 |
| Applicant: | APPLICANT S1907 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1174 of 2004 |
| Judgment of: | Barnes FM |
| Hearing dates: | 23 November 2004 & 10 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 28 October 1997.
That a writ of mandamus issue requiring the Refugee Review Tribunal to re-determine the applicant’s application according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1174 of 2004
| APPLICANT S1907 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 28 October 1997 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant is a citizen of Sri Lanka who arrived in Australia on
30 March 1996 and lodged an application for a protection visa on 30 April 1996. On 28 February 1997 a delegate of the respondent made a decision refusing to grant the visa and the applicant sought review by the Tribunal.
According to an affidavit of the applicant annexed to the application which commenced these proceedings, after the Tribunal decision of
28 October 1997 the applicant wrote to the Minister for Immigration seeking a more favourable decision. The Minister refused to intervene. In about 1998 the applicant joined a class action which was later dismissed and in February 2002 (it appears that this should be 2000) applied for a Subclass 833 Visa which was refused. He applied for review on 8 May 2000. The Migration Review Tribunal affirmed the decision of the Department on 30 June 2000. In about the year 2000 he became a member of another class action commenced by Adrian Joel and Co, Solicitors in Sydney. After the decision in that matter he instructed Mr Joel to file an individual application on his behalf in the High Court which was remitted to the Federal Court in or about May 2003. He claimed that on or about 20 February 2004 Emmett J dismissed the application but that he was allowed to file an individual application in the Federal Magistrates Court and did so in these proceedings commenced on 21 April 2004 after obtaining legal advice.
It appears that the reference to the decision of Emmett J on 20 February 2004 is a reference to his Honour’s refusal of applications for orders nisi in relation to more than 700 proceedings. The applicants in those proceedings had been named as represented parties in either the Muin or Lie proceedings in the High Court (see Muin v RRT & Ors,Lie v RRT & Ors (2002) 76 ALJR 966) and had then filed individual applications in the High Court alleging a lack of procedural fairness which were remitted to the Federal Court. The orders nisi were refused by Emmett J for reasons given in Applicant S1174 of 2002 v RRT [2004] FCA 289 because the material filed did not demonstrate an arguable case for the grant of any relief. His Honour indicated (at [28]) that as an order refusing an order nisi was an interlocutory order it would not found any bar or estoppel against appropriate relief if grounds were subsequently established. There has not been any suggestion to the contrary on behalf of the respondent.
While the respondent contended generally that the delay in bringing these proceedings was unwarranted, no specific issue was taken with the delay from the time the applicant was joined as a representative party in the High Court proceedings to the time of refusal of the order nisi (see Applicant S1174 of 2002 at [29]). I have addressed the question of delay further below.
The Tribunal decision
The background to this application is that the applicant claimed to fear persecution at the hands of security forces or others acting under instruction from the Peoples Alliance (PA) government or politicians because he was thought to have collected and to have information or documents which could be politically damaging to the PA. He claimed to be a past supporter and member of the Sri Lanka Freedom Party (SLFP) who later developed an association with and became a member of the United National Party (UNP) and Democratic United National Front (DUNF) in Sri Lanka. He engaged in various activities for the UNP and DUNF and was a consultant and an adviser to Government ministers. He claimed that in the 1994 election campaign he was asked by the UNP Presidential candidate to assist in collecting information damaging to the PA (of which the main party was the SLFP) in relation to the PA’s plan to disrupt the 1994 elections and illegal fundraising or financial activities. He claimed to have uncovered a number of illegal financial activities involving the PA and plans for the disruption of the election. He handed over the information to the UNP presidential candidate (Mr Gamini Dissanayake) who was later killed.
He claimed to fear persecution at the hands of the security forces or others acting under instructions from the PA government. He claimed that he was subsequently threatened, harassed and assaulted, that he was in hiding for a period, abducted but escaped and that during a raid on his home the police obtained information that would have indicated to the police that he still had original documents relating to activities he had uncovered (although he claimed to have actually given such information to Mr G. Dissanayake). The applicant had also claimed that he submitted documents that were not genuine to obtain a visitor visa and that his sister’s house had been raised twice in 1996 and visited a number of times by various people seeking information about him. He provided the Tribunal with extracts from Sri Lankan newspapers.
The Tribunal accepted the claims of the applicant about his active involvement with the SLFP, DUNF and UNP, finding that he had a considerable profile as an assiduous and loyal supporter of the UNP who contributed his experience in financial matters to the party and was involved in liaison work. He had been rewarded with a number of consultancies and appointments. It found that political violence in Sri Lanka was generally related to elections. It accepted that in the context of his work for the UNP the applicant was present at a meeting with Mr Gamini Dissanayake (a prominent politician who was the proposed UNP presidential candidate at the time of the 1994 elections but was subsequently killed in a bomb attack during the presidential election campaign) and about 18 others some time in August 1994 “called for the purpose of discussing information which had come to the attention of the UNP which involved supposed illegal activities and intention to disrupt the forthcoming elections by the PA”. The Tribunal also accepted that the applicant had a role in verifying certain information and delivering the results to Mr Dissanayake and that his task was completed by September 1994. It found that there was no evidence that the applicant was the main or only person with such knowledge or such task.
The Tribunal rejected as implausible the applicant’s claim that in a telephone conversation in January 1995 he told a person he presumed was a journalist of the fact that he had important information about PA activities during the election. The Tribunal found this claim to be an embellishment of the applicant’s claims for the purpose of providing a link between the leaking of the information he possessed and the subsequent claimed harassment. However the Tribunal accepted that the applicant was threatened and harassed, that he changed his accommodation a number of times and was subject to threats and assaults over the period March 1995 to January 1996, although it found that while he may have been attempting to keep a low profile he was not in hiding during this period. It did not accept a claim that he was abducted by the police while in hiding and hospitalised as a result, finding it implausible and vague. It also found some other specific aspects of the applicant’s claims to be implausible.
The Tribunal referred to extracts from 1996 newspaper articles provided to it by the applicant in relation to apparent scandals and illegal activities by the PA government. It found that:
The appearance of these articles indicates that the information which the applicant had collected and passed on to Mr G. Dissanayake, has found its way into the public domain and therefore this removes the central reason for the applicant’s fear of persecution.
The Tribunal found that the applicant had a role to play in gathering certain information which could have been damaging to the PA and that he was harassed and threatened, but found that the chance of him being persecuted in Sri Lanka was remote since the information he claimed to have which was of interest to his enemies ‘is now in the public domain’. Given this it found that the applicant did not now face any real chance of persecution by either the police or others on behalf of the PA and that his fear of persecution for any Convention reason was not well founded.
This application
In his application for judicial review filed on 21 April 2004 the applicant relied on the following grounds:
2. The Tribunal accepted that the Applicant had been involved with the SLFP since 1970 and that he maintained his membership of the SLFP until 1988 and joined UNP in 1988. The Tribunal also accepted that the Applicant had made a number of contacts with significant politicians including the ex President of Sri Lanka, which confirms the Applicant’s claim that he was a significant political personality who used to be involved with political hierarchies and was rewarded with a number of consultancies and appointments.
3. The Tribunal accepted that the Applicant was involved in discussions between the DUNF and the UNP in early 1994 during the phase of rapprochement by the two parties.
The Tribunal failed to investigate what the deal was between the party leaders and whether there was any secret information the Applicant had and how the knowledge of such deal/information may have placed him in danger which amounts to the Convention fear of persecution and therefore fell into error.
4. The Tribunal erred in finding that the plan to carry out supposed illegal activities and to disrupt the forthcoming elections by the PA was discussed in a meeting with Mr Gamini Dissanayake and about 18 others in August 1994.
The Tribunal fell into error by taking into account wrong facts and evidence. The Applicant never gave evidence that the abovementioned plan was discussed in the August 1994 meeting. The Tribunal erred in ignoring the Applicant’s evidence that Mr Dissanayake called the Applicant to his residence and assigned him to do the above task after explaining how to do it.
5. The Tribunal accepted in its findings that “The Applicant had a role to play in gathering information which could have been damaging to the Peoples Alliance (PA), a political party, the chance of the Applicant being persecuted in Sri Lanka is remote since the information he claimed to have which was of interest to his enemies is now in the public domain”.
The Tribunal failed to take into account relevant consideration that the Applicant’s opponents come (sic) enemies are pursuing him not only because of the information he had but because they believe that the Applicant has important documents in his possession which could damage their repute and the government Minister vehicle along with Police have raided his sister’s house in order to locate such information and documents. The Tribunal in the presence of the above evidence was wrong to conclude that the Applicant does not now face any real chance of fear of persecution for any Convention reason.
6. The Tribunal in its findings concluded that “because the Applicant travelled to various addresses, including lodging his Application for an Australian visa in person in Colombo and collected his passport by himself safely” there was no real fear for his safety, and therefore the Tribunal did not accept the Applicant’s claim of hiding and fear of persecution.
The Tribunal ignored the Applicant’s evidence that he was compelled to move 3 times in a year from place to place for his safety and that he was assaulted during the Colombo trip.
Furthermore, the Applicant handed over the application forms to obtain a visa to travel to Australia and collected his passport from the Australian High Commission in Colombo on the same day and the whole process took only 45 minutes. The Tribunal erred in concluding that the Applicant’s movement from place to place was safe. The Tribunal took into account irrelevant considerations to reach its decision and therefore fell into error.
7. The Tribunal misunderstood the Applicant’s evidence in respect of the facts related to his abduction while hiding and escape from the hospital when his guard was asleep.
8. Subject to the above, the Tribunal breached the rules of procedural fairness and therefore the Applicant was denied Natural Justice.
The applicant filed four separate written submissions. He also tendered copies of the extracts from the newspaper articles which he had provided to the Tribunal and which are reproduced (albeit in reduced size) in the bundle of relevant documents before the Court. The hearing was adjourned to enable him to file a transcript of the Tribunal hearing and further adjourned because of his ill health.
The initial written submissions raise claims of a lack of procedural fairness, bias, failure by the Tribunal to consider all the claims, reliance on evidence that does not exist, failure to afford natural justice and that the applicant was not given a fair hearing. The subsequent written submissions elaborate on these claims, respond to the respondent’s written submissions and address particular aspects of the transcript of the Tribunal hearing which are said to support aspects of the applicant’s claims. I have considered all of the claims raised by the applicant on the material before the court.
In essence the applicant’s claims relate to four aspects of the Tribunal decision.
The ‘information in the public domain’ issue
The main contentions of the applicant relate to the Tribunal finding that the chance of the applicant being persecuted in Sri Lanka is remote since the information he claimed to have which was of interest to his enemies ‘is now in the public domain. This conclusion was based on the following finding:
The applicant provided pages from the 25 February 1996 edition of The Sunday Leader which is headed “Scandal rocks the Government” which describes in minute detail, including copies of letters and telephone conversations, some of the machinations involved in the Puttalam Cement Company’s acquisition by the Tawakkal Group. This was one of the scandals which the applicant was involved in verifying. A number of other apparently illegal activities by the PA government are outlined in other cuttings supplied, being pages 8 and 9 of The Sunday Leader of 16 June 1996 and pages 6 and 7 of the 7 July 1996 edition of the same paper, regarding a coal-fired power station. The Tribunal finds that the appearance of these articles indicates that the information which the applicant had collected and passed on to Mr G. Dissanayake, has found its way into the public domain and therefore this removes the central reason for the applicant’s fear of persecution.
The applicant contended that the Tribunal fell into error in making this finding because the scandals reported in the 1996 newspaper articles referred to by the Tribunal were incidents which took place after the new government came into power and therefore long after the elections in 1994. He had claimed to have been involved in verifying illegal collection funds for the PA in the 1994 election campaign and some of their secret plans aimed at sabotaging the 1994 general and presidential elections, not the scandals referred to in the 1996 newspaper reports referred to by the Tribunal. He contended that he had not claimed to have any involvement in collecting information in relation to scandals in 1995 and 1996 (some of which had in fact taken place after he arrived in Australia).
The applicant claimed that the precise nature of his claims in connection with his protection visa application was apparent from the written statement he provided to the Department of Immigration on 4 August 1996 in connection with his protection visa application. That document (marked L1) is headed ‘Particulars About Secret Activities of the SLFP Discovered During the Election Period’. While portions of this statement are indistinct in the copy provided to the court it is apparent that the first ‘activity’ was a plan of named persons, including Members of Parliament, to disrupt election day activities in areas unfavourable to the PA. The applicant claimed to have given documents about such plan (which he described) to Mr G Dissanayake. The second activity he claimed to have discovered was described as ‘collection of funds for the election campaign in an illegal manner’. First, the applicant gave details of the circumstances of, and documents in relation to, a donation by a leading businessman to the PA for its election campaign. The donation was said to have come mainly from Libya and was to be deposited into a numbered account with a finance company. The applicant claimed these funds were being collected for the PA election campaign in an illegal way. He also claimed to have been asked to liaise with a named person who had alerted Mr G. Dissanayake to the claims. The applicant had collected documents including a supporting affidavit, which he handed to Mr Dissanayake. Secondly the applicant described circumstances in which money was allegedly received by the PA from the Thawakkal group of companies. He claimed that payments were made by the Thawakkal group out of loan funds through an intermediary to the PA for their election campaign. The applicant claimed that he provided details and documentation (including cheque counterfoils) for specified listed payments to persons involved in the PA or towards PA election expenses to Mr G. Dissanayake who intended to make it public at the end of the presidential election campaign. Before this could happen Mr Dissanayake was killed (on 24 October 1994).
The applicant also claimed in this statement that after the PA won the election it then helped the people who had helped it in illegal ways to win the election. He gave particular examples of appointments and suggested that the government had helped the Thawakkal Group, changing cabinet decisions and violating the laws of the country (and that the opposition had had to bring in a No Confidence Motion against the government on this issue).
This statement also noted that the applicant was submitting various newspaper articles (which related to post-election assistance to those who had helped the government in illegal ways to win the election and press exposure of such activities) which were said to show “how the government got involved in various malpractices with the people who helped the PA to raise funds in an illegal manner during the election times”. He referred to information which suggested that the opposition was preparing to bring in an impeachment motion against the President and suggested that “It may be that the opposition is planning to bring this Impeachment Motion with all our findings made during the election time and all other misdeeds exposed by the Press subsequently”.
The undated document entitled Reasons for my Application for a Protection Visa/Refugee Status in Australia attached to the applicant’s protection visa application also distinguishes between the information the applicant claimed to have collected and the information considered in the newspaper articles referred to by the Tribunal. In that document the applicant stated (albeit without the details that were later given to the Department) that Mr G. Dissanayake had sought his assistance (as he still had close connections with the SLFP) to uncover some secret plans of the PA to disrupt election activities and raise funds in illegal ways through secret arrangements with leading businessmen. He claimed that they were able to discover most of the plans along with some important documents. He stated that after the general election some of the PA’s secret activities were exposed and some matters were criticised by the Press but that they continued to collect more information about the PA’s misdeeds and handed the information to the UNP Presidential candidate, Mr G. Dissanayake. The applicant claimed that:
“After the presidential elections, most of the malpractices taken place at the elections were known to the people and they were spread among the people like wildfire. Some of our discoveries have been exposed by the Press without disclosing the source”.
He went on to say that he was suspected of having secret documents (in his possession) as well as having leaked secret plans. He concluded this statement by claiming that the relevant government Ministers wanted either to obtain the documents in relation to their secret activities or to destroy him ‘to keep their secrets undisclosed’ and that they feared that the documents would be tabled in Parliament or there would be an investigation by a Judicial Commission in the event of a change of government.
In submissions to the court the applicant claimed that while the newspaper articles provided with his statement to the Department of 4 August 1996 had touched on matters occurring prior to the election (for example whether the sale of Puttalam Corporation involved a violation of a legislative prohibition on provision of financial assistance by a company to purchase its own shares), it was apparent from the statement of 4 August 1996 and from the content of the articles, that they related to and were provided to show events that had occurred after the election. In contrast the information he had gathered (that provided the reason for his fear) was specific documentary evidence and information about the mechanism of the illegal assistance to the PA prior to the 1994 election. He contended that it was clear from his protection visa application and statement of 4 August 1996 that what he was involved in verifying was the illegal collection of funds for the 1994 PA election campaign and some of their secret plans to sabotage the 1994 general and presidential elections and not the scandals referred to in the later newspaper articles which were the ‘other misdeeds’ which he had described in the statement as subsequently exposed by the press. In other words his claim was that while some malpractices were exposed after the election, his fear related not only to that information but also to his collection and verification of documents in relation to other pre-election secret activities. He suggested that his claim about the accelerated attempts of his enemies to trace him because some information had been spread was consistent with these claims.
On this basis it was claimed that the Tribunal erred in finding that the secrets the applicant claimed to be privy to were now in the public domain, as the matters he was involved in verifying and the matters reported in the newspapers were different and had taken place at different times. In essence the applicant’s claim was that it should have been clear that one could not, in 1994, verify the scandals that took place in 1995 and 1996 to which the Tribunal referred in making its findings about information being in the public domain. The applicant contended that in acting in this way the Tribunal fell into jurisdictional error by failing to accord him procedural fairness, failing to consider all his claims, relying on evidence that did not exist and failing to consider evidence that did exist and also that the evidence went (together with other issues) to establish that the Tribunal was biased.
The applicant also claimed that the Tribunal had failed to raise with him at the Tribunal hearing its view that the relevant information was in the public domain. It was submitted that this should have been done to clarify the precise nature of what the applicant was claiming and the impact and purpose of the newspaper articles he had provided.
Counsel for the respondent took issue with the applicant’s claim that the information in the newspapers he gave to the Tribunal related to different matters to the information he had collected. It was pointed out that it was the applicant’s own claim that the relevant information was in the public domain as he himself had stated that after the presidential elections “most of the malpractices taken place at the elections were known to the people and they were spread among the people like wildfire”. However, as set out above, it is apparent from of the statement of the applicant provided in connection with his protection visa application that he was not claiming that all of the information he had collected had in fact become publicly known.
The respondent also contended that the particulars in the written submission to the Department of 4 August 1996 about the information the applicant claimed to have, referred to matters which were also referred to in the newspapers relied on by the Tribunal. The first of these was ‘money received from the Thawakkal Group of companies’ which the respondent contended was the subject of the newspaper article of 25 February 1996. However, comparing the applicant’s claims and this newspaper article, it is apparent that the applicant’s claim about information he gathered in relation to the Thawakkal group of companies was in relation to money allegedly provided to and for the assistance of the PA in the 1994 election campaign. The newspaper article commenced with a discussion of the privatisation and sale of the Puttalam Cement factory to Thawakkal in 1993 but did so in the context of addressing whether the company had paid to the then UNP government up to 900 million rupees to buy its own shares in connection with the sale and if in doing it so had violated the Sri Lankan Companies Act prohibition on provision of financial assistance by a company for purchase or subscription of its own shares. The article then addressed what happened in connection with the governmental consideration of the alleged violation of the Companies Act after the PA came to power, including negotiations to resolve the issue so that the company could be listed, cabinet deliberations and an alleged bribe or bribes paid to Cabinet Ministers to get an adverse 1995 Cabinet decision reversed. It also referred to a proposal that company accounts should be falsified. This ‘scandal’ related to events that occurred after the 1994 election, not to those matters on which the applicant said he had obtained information that occurred prior to the 1994 election.
The second relevant matter which the respondent suggested was in the public domain because it was disclosed in one of the newspaper articles was the assistance given by the government to the Thawakkal group of companies. However I am not persuaded that this is the case. The claim that the applicant made in connection with his protection visa application related to information discovered about what had occurred prior to the 1994 election campaign involving the Thawakkal group of companies. He claimed that the Chairman of that group had allegedly given a donation to the PA for its election campaign, that there was evidence to suggest that the major part of this money had come from Libya and that he had documents evidencing the transactions by which the money was provided for use by the PA in the 1994 election campaign. However the article of 7 July 1996 relates to assistance given by the government to the Thawakkal group of companies after the 1994 election, not to the claimed provision of illegal funding by Thawakkal to the PA before the 1994 election. The article addresses alleged improprieties by the government in handling tender matters after the election. It does not address what the applicant claimed had occurred before the 1994 election about which he had information. The applicant did refer to PA government assistance to Thawakkal companies in the statement provided to the Department on 4 August 1996. However this was mentioned in support of his suggestion that the PA government was helping people who had helped them in illegal ways to win the 1994 elections. The newspaper discussion of the assistance given by the government to the Thawakkal group of companies does not address the underlying pre-1994 events about which the applicant claimed to have gathered information.
It is apparent that the Tribunal fell into error. It misunderstood the applicant’s claims. He did not claim that all the information which the Tribunal accepted he had collected and passed on to Mr G. Dissanayake had found its way into the public domain. Nor is it apparent from the ‘scandals’ discussed in the newspaper articles or other documents before the Tribunal that all such information was in fact in the public domain. On the contrary. This was not a mere factual error by the Tribunal (see NABE v MIMIA(No 2) [2004] FCAFC 263 at [52]-[63]) or errant fact finding. The applicant’s claim was that he feared persecution because he had gathered information and also underlying documentation associated with such information that could be damaging to the PA and that he feared persecution not only because he was believed to be responsible for having leaked secret plans (some of which may have been disclosed subsequently or may have entered the public domain) but also because he was suspected of having further information which had not been disclosed and, importantly, documentary evidence and secret documents in relation to the activities that he had uncovered. The Tribunal wrongly concluded that the information the applicant had collected and passed on to Mr G. Dissanayake had found its way into the public domain. It failed to consider the applicant’s claims to fear persecution because of information which had not found its way into the public domain and because he was believed to have documentation in relation to the scandals at or before the time of the 1994 elections that he was involved in verifying.
As counsel for the respondent recognised, an error of fact can reveal that the Tribunal has not properly understood its task or has not considered the claims made by an applicant (NABE and cf Re MIMIA; Ex parte Cohen (2002) 75 ALJR 542 at [35] per McHugh J). In this instance it is clear that the Tribunal misunderstanding of the precise nature of the applicant’s claims meant that it failed to make a finding on an aspect of his claims (in relation to information not in the public domain as well as documentary evidence of pre-1994 election scandals) being a substantial, clearly articulated argument relying upon established facts as discussed in Dranichnikovv MIMA (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ (with whom Hayne J agreed at [95]). This failure constituted a constructive failure to exercise jurisdiction which may, as was suggested by the Full Court of the Federal Court in NABE at [55], be seen as a failure to carry out the review required by the Migration Act. In other words the Tribunal dealt with part but not all of the applicant’s claims. This may also be described as a failure to have regard to relevant considerations in the sense considered in MIMA v Yusuf (2001) 206 CLR 323. As Allsop J (with whom Spender J agreed) in Htun v MIMA (2001) 194 ALR 244 at [42] stated:
The requirement to review the decision under s.414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all of the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration … it is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act … make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.
In this instance the applicant’s claim was raised in the written submissions provided by him to the Department. I am satisfied that the full extent of the applicant’s claims was apparent on the face of the material before the Tribunal. The Tribunal error went beyond misunderstanding a piece of evidence. The integers of the applicant’s claims were not clearly understood or properly considered by the Tribunal in its finding that the central reason for the applicant’s fear of persecution was removed because the information he claimed to have which was of interest to his enemies was now in the public domain. This led the Tribunal to fall into jurisdictional error.
The ‘meetings with Mr G. Dissanayake’ issue
The Tribunal found that:
In the context of his work for the party, the Tribunal accepts that the Applicant was present at a meeting with Mr Gamini Dissanayake and about 18 others some time in August 1994 called for the purpose of discussing information which had come to the attention of the UNP which involved supposed illegal activities and intention to disrupt the forthcoming elections by the PA. The Tribunal accepts that the applicant had a role in verifying certain information and delivering the results to Mr Dissanayake. The Tribunal has no evidence to indicate that the applicant was the main, or indeed the only, person who had knowledge of or who had helped to collect/verify this information. The applicant indicated that this task was completed in September 1994, that is, between the Parliamentary and the Presidential elections.
The applicant claimed that the Tribunal erred in its finding about the meeting in August 1994 as the transcript of the Tribunal hearing revealed that, as he had told the Tribunal, the group meeting in August 1994 did not involve discussion of disclosure of secret documents but rather discussion of policies and the future. He contended that he had claimed that no-one knew about the task Mr Dissanayake had given him because it was a secret assignment given to him personally by Mr Dissanayake. It was contended that insofar as the Tribunal relied on the fact of the meeting to establish that the information the applicant collected may also have been known to people other than himself and Mr Dissanayake it had erred.
The applicant claimed that he had explained in the Tribunal hearing that in the August 1994 meeting, Mr Dissanayake explained how he would behave without corruption after he obtained the leadership. The applicant’s claim of what occurred in the Tribunal hearing is consistent with the transcript. After the applicant’s description of the meeting and of a separate request by Mr Dissanayake that he obtain, collect and verify certain information the Tribunal indicated that it understood by asking:
At this meeting when Dissanayake was describing how he would handle in the future the situation without corruption how many people were present?
After a further exchange of information the Tribunal stated:
Ok. Right. So subsequently Dissanayake called you and asked you specifically to do a particular job?
to which the applicant answered:
Yes sir.
The applicant told the Tribunal that Mr Dissanayake had not requested him to obtain information at a meeting but had called him personally. He also said that there had been a meeting at which Mr Dissanayake had promised them:
that there won’t be any corruptions under his leadership.
He stated:
At the beginning, you know, the, about the corruption, he had a meeting, you know, he selected some people to do some work. So at that meeting, of course, he told us about how he’s going to do when he got the leadership.
Contrary to what is recorded by the Tribunal in its reasons for decision in outlining what occurred at the hearing, it cannot be said that the applicant told the Tribunal that in August 1994 “he participated in a meeting with G. Dissanayake and some 18 other people where the issue of collection and verification of information about PA activities was discussed”. He gave evidence that there was a meeting and that Mr Dissanayake discussed corruption but not that they discussed the collection and verification of information about PA activities at that meeting.
Associated with this claim, the applicant also took issue with the Tribunal finding that it had no evidence to indicate that the applicant was the main or indeed the only person who had knowledge of or who had helped to collect/verify this information. The applicant claimed that he told the Tribunal that the secret documents were not disclosed at the meeting of 20 people. The transcript reveals that the Tribunal asked what discussions were held in the party about the alleged corruption and suggested other people in the party must have known. The applicant agreed. However the hearing continued:
“T. I mean, at least , those 20 people that were sitting around at the meeting…
A. Yeah?
T. … Would have known what happened what; did anybody ask there, what are we going to do wit this information? What are we going to …
A. No, Sir! That, all these secret documents, it was not disclosed at that 20 people, in that meeting. That 20 people meeting was, like I mentioned, was the thing that you know, to discuss the policies.
T. The policies. OK!
A. Yeah! So, Mr Dissanayake asked, called me personally and handed over the job. Nobody knew! That was not disclosed because it was a secret assignment.
It is apparent that the applicant told the Tribunal not only that the meeting was called for the purpose of discussing Mr Dissanayake’s corruption-free proposals after the election (and not information about the PA’s supposed illegal activities and intention to disrupt the elections) but also that nobody knew about his particular task and that it was not disclosed because it was a secret assignment (although he believed that it had come to the attention of those he feared because in the process of collecting information he had had to contact various people for verification and because he told a journalist in 1995 that he had certain information).
However the Tribunal accepted that the applicant was involved in obtaining information as claimed and that he was pursued to some extent by the authorities, having been harassed and threatened. The finding that the information he claimed to have was now in the public domain was not made on the basis of what had or had not occurred at the meeting of August 1994 or whether others at the meeting had knowledge of or had helped to collect or verify the information about the PA activities, but rather on the basis of the newspaper articles which are discussed above. The findings about the August 1994 meeting and that there was no evidence as to whether the applicant was the main or the only person who had knowledge of or who had helped collect and verify information about the PA activities (insofar as that may be seen as contrary at least to the applicant’s suggestion that his assignment was secret and known to no-one else) were not findings that were critical to the Tribunal’s decision. In other words these findings and the extent to which the Tribunal misunderstood the applicant’s evidence in this respect played no part in the Tribunal’s ultimate rejection of the applicant’s claim to be a refugee. As McHugh, Gummow and Hayne JJ stated in MIMA v Yusuf (2001) 206 CLR 323 in determining whether an error (including an error of failing to take into account relevant considerations in the Craig sense) is a jurisdictional error:
“what is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power (emphasis added) is to make an error of law”.
The finding about the meeting of August 1994 and the failure of the Tribunal to refer to the applicant’s evidence at the hearing on these issues did not affect the exercise of its power, as the finding in question had no part to play in the Tribunal’s ultimate rejection of the applicant’s claim to be a refugee. Hence, even if the Tribunal asked itself the wrong question or considered irrelevant material or failed to consider relevant material, in this respect it did not constitute a reviewable jurisdictional error because it did not affect the exercise of power. Nor has it been established that the Tribunal misunderstood in a fundamental way the actual claims made by the applicant about the August 1994 meeting (in contrast to of his claims in relation to the ‘information being in the public domain issue). The Tribunal addressed the applicant’s claim to fear persecution because of his involvement in information gathering and his imputed possession of documents which supported allegations regarding corrupt activities of the PA. It accepted that the applicant had a role to play in gathering certain information which could have been damaging to the PA and that he was harassed and threatened. The Tribunal may have made an error of fact in misunderstanding this aspect of the applicant’s claim but it did not base its decision ‘in whole or in part upon the claim so misunderstood or misconstrued’ (see NABE at [63]). Hence such errors are not tantamount to a failure to consider the claim constituting jurisdictional error. Any such errors of fact were ‘subsumed in findings of greater generality’ (Applicant WAEE v MIMIA (2003) 75 ALD 630 at [47]) in which the Tribunal accepted that the applicant had a role in verifying certain information and delivering the results to Mr Dissanayake.
‘Natural justice and country information’ issue
The applicant claimed:
“The Tribunal quoted some generalised news reports from various news agencies which were not available to me at the time of Tribunal proceedings. The Tribunal member used these news reports to reject my main claim that I would be persecuted if I returned to Sri Lanka. It is against the natural justice to use any material, report, or evidence against someone without giving him a chance to examine them or giving him a chance to disprove them. I had sufficient evidence to disprove those reports if I were given an opportunity to do so. Some of these news agencies have only one or two representatives/correspondents to cover the entire country and their findings are mostly superficial”.
The applicant contended that the Tribunal denied him procedural fairness by failing to put to him for comment the independent country information upon which it relied. He provided the transcript of the Tribunal hearing and claimed that it was apparent that the Tribunal had not put the material to him, informed him or indicated to him that it intended to use such independent country information against him to reject his claim that he would be persecuted if he returned to Sri Lanka.
The Tribunal is obliged as a matter of natural justice to give an applicant an opportunity to present his case and, as was said in Kioa v West (1985) 159 CLR 550, to put him on notice of issues which are critical to its decision and, in particular, of any material which is adverse to him which may be used to arrive at the Tribunal’s decision. However it is not incumbent upon the Tribunal to give to the applicant an opportunity to address material which it considers to be in his favour. In this instance the independent country information relied on by the Tribunal was used not to reject the applicant’s claims, but to confirm what he said was the country’s situation, particularly in the period from 1994 to 1997. The Tribunal did not rely on the country information to make findings adverse to the applicant or, indeed, to find that the information he had collected and had passed on had found its way into the public domain. In its discussion of the situation in Sri Lanka it summarised the applicant’s claims and then stated ‘country information searches confirm (emphasis added) that political violence is generally related to elections’. It then discussed the newspaper cuttings the applicant himself provided, which it stated ‘confirm other country information reports on violence associated with election campaigns’. The Tribunal set out extracts from and summarised a number of independent reports in relation to violence associated with election campaigns. It then referred to information provided by the applicant, indicating that the situation regarding the bringing to justice of members of the police who had broken the law was improving and that the Supreme Court was being forthright in its determination to bring police officers who had violated the law to justice. It also referred to the setting up of three Truth and Justice Commissions to investigate disappearances since 1988. The Tribunal then stated “The foregoing did not indicate the absence of political violence between the PA and UNP, however, what it does show is the concentration of this violence around elections and the attempts by the government to deal with the issue”.
Thus the Tribunal made findings consistent with the information provided by the applicant. It did not rely on the independent country information to make findings adverse to him. Hence there was no obligation on the Tribunal to disclose to the applicant the information or the critical issues to which such information related as an incident of natural justice.
For the sake of completeness it should also be mentioned that there is no failure to comply with s.424A(1) of the Migration Act 1958 (C’th) in relation to this information as it comes within the exception in s.424A(3)(a).
‘ongoing persecution of political enemies’ issue
The applicant claimed that he had submitted 16 newspaper clippings as evidence of persecution of political enemies by the PA government to prove that the government was continuing its activities to persecute its enemies as part of establishing that he would not be safe. He contended that the Tribunal erred in failing to take into account this information or the information that he provided about torture and killings of opponents by the PA. In other words the applicant contended that the Tribunal should have addressed the information which he provided in relation to the situation in Sri Lanka. He submitted that it was clear from the transcript of the Tribunal hearing that the Tribunal had not sought clarification from him on any of the claims made in relation to the situation in Sri Lanka.
The information to which the applicant referred consisted of a number of extracts from newspaper clippings. He did not suggest that any of this material related to him specifically but rather that it was evidence of killings, torture and persecution of political enemies by government authorities. The clippings provided by the applicant are from 1996 to 1997. Most of them refer to events surrounding elections in March 1997 and are consistent with the country information relied on by the Tribunal as to reports of violence associated with election campaigns. While the Tribunal did not make findings as to whether or not the individual incidents referred to in these clippings actually occurred, it was not necessary for it to do so. The clippings were put forward in support of the applicant’s claims that the government could not be trusted and that there was violence in his country at that time. The Tribunal accepted his claims that political violence was generally related to elections. In accepting this it referred specifically to the 16 newspaper clippings provided by the applicant as confirming other country information reports on violence associated with election campaigns. In light of this finding it cannot be said that the Tribunal ignored the claims in the applicant’s material or failed to have regard to the information put forward or the evidence relied upon. It had regard to the newspaper clippings supplied by the applicant in support of his claims. It accepted not only what was said in them but the general claim they supported because they were confirmed by more general country information reports on violence in politics. The Tribunal is not obliged to refer in detail to every item of evidence provided by the applicant in support of his claims. This information did not relate to him specifically. Further, as the Tribunal rejected his claimed fear to be at risk of persecution by the police or others on behalf of the PA, evidence of what had occurred to those persecuted by the PA did not have to be addressed in the manner contended.
Other grounds
In addition to the four main grounds that were addressed in the written and oral submissions of the applicant, the application raises a number of other grounds which I address for the sake of completeness. The ground in paragraph three of the application set out above is an allegation that the Tribunal failed to investigate what the ‘deal’ between the DUNF and the UNP was and whether the applicant had any secret information which placed him in danger. This appears to be an allegation that the Tribunal did not consider a claim made by the applicant. However the Tribunal did consider whether the applicant’s knowledge of information about the government may have placed him in danger and whether that made him a refugee. It accepted that he was involved in liaison work for the UNP, that he followed his friends when they formed the DUNF and that he was involved in discussions between the DUNF and the UNP in early 1994 during the phase of rapprochement between the two parties. It was not necessary for it to go on to investigate the specific matters referred to in this ground. It accepted the central claim that the applicant had a role in verifying certain information about the activities of the PA prior to the 1994 elections. He does not claim that knowledge of a deal between the DUNF and the UNP had placed him in danger. No error is established by this ground.
Ground 4 in the application has been discussed above.
Ground 5 has also been discussed above.
The ground raised in paragraph 6 of the application is that in finding that, because the applicant had travelled to various addresses and lodged an application for a visa and collected his passport, there was no real fear for his safety and that he was not in hiding, the Tribunal ignored the applicant’s evidence that he was compelled to move three times in a year from place to place and assaulted during the Colombo trip.
The Tribunal accepted the applicant’s claims to have moved three times and that he was assaulted. The question of the amount of time the applicant spent collecting his passport goes only to the weight to be given to that incident when assessing whether the applicant was in fact in danger at that time. Questions regarding the weight of evidence are for the Tribunal. The applicant’s contention that the Tribunal erred in concluding that his movement from place to place was safe seeks merits review. The Tribunal found, on information before it, for reasons that it gave, that the applicant’s movements indicated that he felt sufficiently safe to travel between his various addresses when he purported to be in hiding and, that while he was subject to a degree of harassment, threats and assaults and may have been attempting to keep a low profile, he was not in hiding during this same period. The Tribunal also referred to the applicant’s own evidence in reaching this conclusion. No error is established in the manner contended in paragraph six of the application.
Paragraph 7 of the application contends that the Tribunal misunderstood the applicant’s evidence in relation to his abduction while hiding and escape from the hospital when his guard was asleep. There is no explanation as to how the Tribunal allegedly misunderstood the evidence. No such misunderstanding is apparent from the material in the court book. The Tribunal considered the applicant’s claim but did not accept that he was in fact abducted while hiding in Kandy. It reached this conclusion based on the vagueness and implausibility of the incident. No jurisdictional error has been established in this respect. I note that a misunderstanding does not of itself constitute jurisdictional error and it has not been established that there was a jurisdictional error in relation to the Tribunal treatment of the applicant’s claim of abduction.
The final paragraph of the application contends generally that the Tribunal breached the rules of procedural fairness. Aspects of this claim have been addressed, in particular the claim about information in the public domain. The applicant also claimed that there was bias on the part of the Tribunal. It is apparent from his written submission that his real complaint was that the Tribunal did not accept all of his claims and did not ask him questions to elicit responses that would have satisfied the Tribunal as to those claims. This does not support a conclusion that the Tribunal had so prejudged the matter that it was unable or unwilling to change its mind regardless of the evidence put before it: MIMA v Jia Legeng (2001) 205 CLR 507 at 532. I have also considered the transcript of the Tribunal hearing. There is nothing in the transcript or the other material before the Court to establish that any factual errors on the part of the Tribunal, its misunderstanding of the applicant’s claims or the manner in which it conducted the review constitute either actual or apprehended bias or a denial of procedural fairness.
In relation to particular matters raised by the applicant, the fact that the Tribunal stated that the applicant mentioned the telephone conversation with a journalist for the first time at a DIMIA interview is not indicative of bias. It was accurate insofar as the claim was not referred to in the statement annexed to the protection visa application. The Tribunal did not find that the applicant disclosed the information to the journalist as contended but rather that he talked to the journalist frankly and mentioned that he had certain important information about PA activities during the election. The applicant told the Tribunal that he mentioned to the journalist ‘I also had some information’ although he went on to say that he was not going to release it because he did not want to get involved. The applicant told the Tribunal that he talked to the journalist frankly. Further, there was no obligation on the Tribunal to inquire further about the applicant’s various addresses or the explanation for his movements as suggested. Nor was the Tribunal obliged to question the applicant further about his claims of being the subject of interest of two particular government Ministers as contended. The applicant’s contentions in relation to these findings take issue with the merits of the Tribunal decision.
The applicant complained generally that the Tribunal did not follow the proper and fair procedure in conducting the hearing and contended that if the Tribunal had any doubts it should have clarified them with him or had him explain his claims in more detail. The transcript of the Tribunal hearing does not support or establish the applicant’s claim that the Tribunal failed to follow a proper and fair procedure in conducting the hearing. Not only did the Tribunal raise and clarify significant issues with the applicant, but also at the end of the hearing it allowed his adviser to make supplementary submissions on items not covered and to suggest any issues that should be raised with the applicant. The adviser took the opportunity to clarify issues that were seen to be of significance. In these circumstances no lack of procedural fairness has been established. The Tribunal was not obliged to put its thought processes to the applicant or to disclose what it was minded to decide for comment (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at [28]).
The applicant’s contentions also repeat aspects of his claims to fear persecution. Such matters do not establish jurisdictional error. Insofar as the applicant raises humanitarian concerns again these are not matters that establish jurisdictional error.
Nonetheless a jurisdictional error has been established and it is necessary to consider whether the relief sought by the applicant should be granted.
The granting of relief is a matter of discretion (Dranichnikov v MIMIA (2003) 197 ALR 389 at [33]; Re MIMIA; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [90]). The Tribunal decision was made on 28 October 1997. These proceedings were not commenced until 21 April 2004. Unwarranted or excessive delay in instituting proceedings is relevant to the exercise of the discretion (see Re RRT; Ex parte Aala (2000) 204 CLR 82 at [33] per Gaudron and Gummow JJ (with whom Gleeson CJ and Hayne J agreed) and at [48-9] per Kirby J and MIMA v Bhardwaj (2000) 99 FCR 251 at [65] per Lehane J). However in this case the applicant filed an affidavit explaining the delay in institution of proceedings. As outlined above, the applicant was joined as a representative party in the Muin or Lie proceedings in the High Court and an order nisi was refused by Emmett J on 20 February 2004. Consistent with what his Honour stated at [29] in Applicant S1174 of 2002 there has been a satisfactory explanation for the period of time from the start of his involvement in the Muin and Lie proceedings to that time. The applicant has provided an explanation for the delay from the time of making of the Tribunal decision until he joined the High Court proceedings by reference to his application to the Minister for a more favourable decision, participation in a class action and unsuccessful visa application. The court should be slow to refuse relief where there is a jurisdictional error and, despite the delay, this is not a case in which I consider it appropriate to exercise my discretion to refuse the remedy sought.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 27 April 2005
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