S451 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 256

FEDERAL COURT OF AUSTRALIA

S451 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 256

MIGRATION – no point of principle

Migration Act 1958 (Cth)

S451 of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 373 of 2003

MOORE J
18 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 373 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S451 OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

RUTH CHEETHAM, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

18 MARCH 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application for the order nisi be dismissed.

2.        The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 373 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S451 OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

RUTH CHEETHAM, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	MOORE J
DATE:	18 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for constitutional writs concerning a decision of the Refugee Review Tribunal (‘the Tribunal’) of 24 January 2001 affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) of 29 January 1998 refusing to grant the applicants protection visas under the Migration Act 1958 (Cth) (‘the Act’). The application was originally filed in the High Court of Australia but remitted to this Court by an order made by Gaudron J on 6 February 2003. In earlier proceedings in this Court, the applicants sought a review of the decision of the Tribunal pursuant to subs 476(1) of the Act. Whitlam J dismissed that application on 24 May 2002. An appeal against that judgment was dismissed by a Full Court on 11 November 2002.

   Background facts

2. The applicants are husband and wife and citizens of Sri Lanka.  They arrived in Australia on 24 July 1997 on a visitors’ visas granted on 30 April 1997.  On 4 September 1997, the applicant husband lodged an application for the protection visa in which the applicant wife was included as a member of his family unit.  However, the applicant wife lodged her own application for a protection visa on 17 September 1997.  Only the applicant husband made specific written claims of a well founded fear of persecution.  It is convenient to refer to the applicant husband as ‘the applicant’.

3. Generally, the applicant’s claims were as follows.  He is a Sri Lankan Tamil and a Roman Catholic.  His claims, in overview, were described by the Tribunal in the following passage from its reasons:

   In essence, the applicant claims to fear persecution by the Sri Lankan authorities by reason of political opinion, which has been imputed to him on the bases that: First, that he accepted funds from Tamils outside Jaffna and from overseas which he then transferred from his bank account to the recipients in Jaffna and, in the course of this activity, he was associated with Catholic priests who were arrested for taking money and goods into Jaffna and who were thought by the authorities to have been assisting the Liberation Tigers of Tamil Eelam (LTTE); and second, that he was suspected of providing shelter or of harbouring LTTE members in his home in Colombo.

4. Specific aspects of his claims were that he had been detained overnight in April 1996 (though the Tribunal discussed uncertainties about this date) because his name had been found on a Catholic priest, Father Jebanesan, who was arrested while travelling with a large amount of money in his possession.  He also claimed to have been arrested and detained on subsequent occasions, in particular March 1997.

   The Tribunal’s decision

5. In its reasons for decision, the Tribunal summarised the applicant’s claims and then proceeded to list the ‘Refugee claims – inconsistencies’ under the headings:

   ·The arrest of Catholic priest(s) in November 1995 or April 1996 

   ·Applicant’s arrest(s) in 1996 (and the trip to Denmark in May 1996) 

   ·Applicant’s arrest(s) in 1997

   ·Departure from Sri Lanka

6. Under each heading, the Tribunal set out the various claims the applicant or his wife made in relation to a particular incident and at what stage these claims had been made.  The Tribunal then set out material submitted by the applicant in support of his claims.  This was followed by excerpts and summaries of independent information relating to the arrest of the Catholic priests, the security situation in Colombo generally and exit procedures when leaving Sri Lanka by air. 

7. The Tribunal explained why it concluded that particular claims of the applicant were not supported by evidence, were inherently implausible or conflicted with the independent information.  The Tribunal did not accept that the applicant was ever involved in the transfer of money to Tamils in Jaffna by Father Jebanesan or that Father Jebanesan was arrested with material identifying the applicant as a participant in that activity.  Consequently, the Tribunal did not accept the applicant was arrested as a result of Father Jebanesan’s arrest.  The Tribunal accepted that the overnight detention in April 1996 took place and that the applicant was physically mistreated during this detention.  However, the Tribunal was unable to determine the reason for the April 1996 detention, except to say it was not as a consequence of Father Jebanesan’s arrest.  Because of ‘serious inconsistencies in the applicant’s claims’, the Tribunal rejected the applicant’s claim to have been arrested and questioned on numerous occasions in 1995 and/or 1996.  Furthermore, even accepting the April 1996 detention, the Tribunal was not satisfied that at the time of his release he was any longer of interest to the authorities.

8. The Tribunal did not accept the applicant’s claim regarding his arrest and detention for two and a half days in March 1997.  Six reasons were given.  First, the applicant provided sharply conflicting accounts of the reason for the detention.  Second, the applicant’s wife was adamant at the first interview that the applicant had only ever been detained overnight once in April 1996.  Third, the most recent explanation for the 1997 detention was not raised until the applicant’s visa application had been rejected. This concerned a claim that the applicant had been accused of harbouring Tamils.  Fourth, Father Sritharan’s letters (letters the applicant relied on) only referred to one episode of overnight detention which the Tribunal had already taken to relate to April 1996.  Fifth, the applicant was able to leave Sri Lanka legally using his own documents only four months after the alleged detention.  Sixth, the delay between obtaining his visa and leaving and the delay between the alleged detention and leaving were not consistent with a genuine fear of persecution. 

9. The applicant claimed that a bribe had been paid to facilitate his departure from Sri Lanka.  At least implicitly, this appears to have been accepted by the Tribunal.  However, the Tribunal adopted the approach that because the applicant was able to obtain a visa and leave the country legally on his own documents and because the Tribunal had found that he was no longer of interest to the authorities following his 1996 detention, it did not accept that without the bribe the applicant would have been prevented from departing Sri Lanka.

10. The Tribunal found the applicant did not satisfy the criteria for a protection visa and affirmed the delegate’s decision not to grant the protection visas.

    The Application and its disposition

11. The application is brought under s 39B of the Judiciary Act 1903 (Cth) seeking constitutional writs. The applicant is legally represented. The application is based on three grounds. The first is that the Tribunal failed ‘to provide adverse information to the Applicant for response in a critical matter’ (the payment of the bribe to facilitate departure from Sri Lanka). The applicant submitted that this amounts to a failure to provide natural justice and relies on Muin v Refugee Review Tribunal (2002) 190 ALR 601; WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188; and WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171. The applicant identified two Department of Foreign Affairs and Trade reports that the Tribunal referred to in its reasons. It appears to be common ground that the applicant was not furnished with copies of these documents, nor were they drawn to his attention before the Tribunal made its decision. The first reported that every passenger at Colombo airport must pass through security. The Tribunal said of the second:

    Despite this level of security, there have been cases of corruption of officials with regard to illegal departure from the airport.  DFAT advised that although officials from the Sri Lankan Criminal Investigation Department say that it is impossible for passengers to bypass airport checks, other contacts at the airport agree that passengers using forged documentation or genuine documents bearing false information may proceed to the aircraft with the connivance of airline and immigration officials.

12. The applicant submitted that had his attention been brought to these documents he would have demonstrated how he ‘managed to get on the plane without being detained’.  As to this ground, the Minister referred to the Tribunal decision where the point was made that:

    Although the independent information suggests that people can leave Sri Lanka on false travel documents, through the use of bribery, the applicant does not claim to have needed recourse to illegal or surreptitious means to effect his departure, and for the reasons I give below I do no accept that if he had not paid a bribe he would have been impeded in his departure.  I conclude that, in combination with my other findings, this lack of difficulty in departing is because he was not of adverse interest to the Sri Lankan authorities. (Emphasis added)

13. The Minister submitted that by ‘illegal or surreptitious means’, the Tribunal meant the use of false documents.  Furthermore, the Tribunal regarded the suggestion that a bribe had been paid as having no bearing on the determination of the applicant's claims.

14. The second ground of review, as advanced in submissions, was that ‘[t]he independent information which I [the Tribunal] have consulted indicates that such searches are a common occurrence after serious terrorist incidents in Colombo’ could not be called in aid by the Tribunal in considering what was said by the applicant to have occurred by way of searches of the applicant’s house.  What the Tribunal said, in context when discussing a letter the applicant relied on from a tenant in his family home, was:

    The contents of the letter from the applicant’s tenant do not, in my opinion, support the applicant’s claim to have been of interest to the authorities at the time of his departure, nor that he faces a real chance of persecution for a Convention reason if he were to return to Sri Lanka now. That letter merely suggests that the army, in the wake of a serious bombing incident in Colombo, attended the applicant’s house to search the house, which they apparently knew to have been owned by the applicant, were unpleasant to the tenant when the applicant’s absence was explained, and returned twice the next day to conduct further searches. The independent information which I have consulted indicates that such searches are a common occurrence after serious terrorist incidents in Colombo. I note that the tenant’s letter refers to an incident in October 1997. There is nothing to indicate that if the army were interested in the applicant personally, which I do not accept, that interest has persisted beyond October 1997. (Emphasis added)

15. The Minister submitted that the finding the Tribunal did make was that a search of the applicant’s premises did not indicate anything significant as the applicant asserted.  Moreover, this finding of fact was open to the Tribunal.

16. The third ground of review puts in issue the finding of the Tribunal that the applicant had not mentioned the claim regarding the harbouring of Tigers until the Tribunal hearing.  The applicant alleged that for the Tribunal to have so concluded, with the result that it found that the applicant had fabricated the claim, was so unreasonable that no reasonable Tribunal would have done so.  The applicant pointed out that in his original statutory declaration furnished to the delegate, he had said ‘I went on Sunday and they accused me of helping the Tigers and they abused me in foul language.  They showed photos of some Tigers who they said had come to my house’.

17. The Minister submitted that the Tribunal was not saying that the applicant had not raised the question of being accused of having Tigers at his home (which was in the statutory declaration), but rather the reason for his supposed detention in March 1997 had changed from an allegation of having Tigers visit his home to a much more serious allegation of harbouring Tiger fighters which was raised for the first time before the Tribunal.  The Minister also submitted that the inconsistency that was found to exist was a finding within jurisdiction, whether fairly open as the Minister contended, or made in error as the applicant contends.  The Minister submitted that there must be an aspect or feature of Wednesbury unreasonableness that establishes jurisdictional error, and unless that is present, any lesser error is protected by s 474 of the Act. In addition, even if the applicant was able to make out his claim that this finding was unreasonable in a Wednesbury sense, it was only one of six reasons the Tribunal found the applicant had fabricated the claim concerning the March 1997 arrest.

18. In my opinion, the first ground does not raise an issue of substance. It was never the applicant's case as advanced to the delegate or Tribunal that as a result of paying a bribe he did not pass through security (the matter addressed in the first document) or that he had used forged documents or genuine documents bearing false information (the matter addressed in the second Department of Foreign Affairs and Trade report). On a benevolent reading of what the Tribunal said at [12] above, this was all the Tribunal was pointing out. The substance of its conclusion about the applicant's departure, was that the payment of the bribe made no difference. This conclusion did not depend on either of the Department of Foreign Affairs and Trade reports about which the applicant now complains. Neither the applicant's case nor its rejection by the Tribunal turned on whether the contents of the two contentious reports was correct. The fact that the Tribunal adverted to them without providing the applicant with an opportunity to comment on their contents, has no material bearing on the way the Tribunal determined the applicant's claims.

19. Similarly, in my opinion, the second ground does not raise an issue of substance.  The applicant does not put in issue that security forces conduct rigorous searches after serious terrorist incidents in Colombo.  What is suggested is that this fact cannot be called in aid in assessing whether the letter from the tenant correctly recorded that the army, in the wake of a serious bombing in Colombo, attended the applicant's house to search the house and returned twice the next day to conduct further searches.  For my part, I do not see why the non contentious fact that security forces conduct rigorous searches after serious terrorist incidents, is irrelevant when considering the letter.  A conceded pattern of general conduct would be relevant to a consideration of whether a particular occurrence involving that conduct did or did not happen and whether a letter recounting the particular occurrence should or should not be viewed as reliable and ultimately supportive of the applicant's case.  In any event, the independent information referred to by the Tribunal was not used to contradict or challenge what is said in the letter.  Rather it is used, in my opinion unexceptionally, to place in some more general context, the events recounted and their significance.

20. The third ground concerns the Tribunal's conclusion that the applicant had not raised as an explanation for his detention in March 1997 that he was suspected of having harboured LTTE members before his visa application had been rejected by the delegate.  I accept that it may have been open to the Tribunal to have concluded that the statement in the applicant’s statutory declaration advanced in support of his application before the delegate that he was accused of helping the Tigers and Tigers had come to his house, was a claim that he was being accused of harbouring Tigers.  However, I also accept that it was open to the Tribunal to conclude, as it did, that the original statement did not go so far as to suggest what was being alleged against him was that he was harbouring Tigers.  In addition, even assuming, for present purposes, that an intermediate finding of fact concerning one of several matters leading to the rejection of an aspect of a claim can be called in aid to found an argument of Wednesbury unreasonableness, the finding in the present case was not unreasonable in any relevant sense.

21. In terms, what is before me is an application for an order nisi remitted to this Court by the High Court.  Having regard to the absence of any point of substance raised in the application, I propose to dismiss the application for the order nisi with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             18 March 2004

Solicitor for the Applicant:	Silva Solicitors
Counsel for the Respondent:	R Bromwich
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	6 February 2004
Date of Judgment:	18 March 2004