Shaly v Minister for Immigration and Multicultural Affairs

[2000] FCA 1418

FEDERAL COURT OF AUSTRALIA

Shaly v Minister for Immigration & Multicultural Affairs [2000] FCA 1418

MIGRATION – remitted from High Court of Australia – application for protection visa – claim of failure to make finding on material question of fact – whether question of fact was material – requirement to provide reasons for rejection of claim – claim of failure to exercise jurisdiction – error of law.

Migration Act 1958 (Cth): s 476

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 referred to

MUHAMMED ZANOOS MOHAMED SHALY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V 110 of 2000

GOLDBERG J
10 OCTOBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 110 of 2000

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	MUHAMMED ZANOOS MOHAMED SHALY Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	10 OCTOBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application by the applicant for the relief sought in that part of the application remitted to the Federal Court of Australia by the High Court of Australia is refused.

2.The applicant pay the respondent’s costs of and incidental to the proceeding in the Federal Court of Australia including the costs reserved by Hayne J on 23 November 1999.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 110 of 2000

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	MUHAMMED ZANOOS MOHAMED SHALY Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GOLDBERG J
DATE:	10 OCTOBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of Sri Lanka, arrived in Australia on 16 August 1995.  He was born in March 1970 and is a Muslim.  On 21 December 1995 he applied for a protection visa and on 27 September 1996 the Delegate of the Minister for Immigration and Multicultural Affairs, the respondent, refused the applicant’s application on the ground that he did not meet a criterion for the grant of a protection visa, namely:

   “… that an applicant is a non‑citizen in Australia to whom Australia has protection obligations under the United Nations Refugees Convention as amended by the Refugees Protocol.”

   On 23 October 1996 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the decision of the Delegate.  On 19 March 1997 the applicant attended a hearing before the Tribunal and on 24 March 1997 the Tribunal affirmed the decision of the Delegate not to grant the applicant a protection visa. 

2. On 11 January 1999 the applicant commenced a proceeding in the High Court seeking prerogative relief in respect of the decision of the Tribunal. Part of the matter raised by him in that proceeding and pending in the High Court falls within the jurisdiction of the Federal Court which is conferred by Pt 8 of the Migration Act 1958 (Cth) (“the Act”).

3. On 23 November 1999 Hayne J ordered that the Tribunal show cause why a writ of mandamus, prohibition or certiorari or an injunction should not be issued out of the High Court directed to the Tribunal in respect of its decision of 24 March 1997 on grounds which were specified in the order.  Hayne J also ordered:

   “2.There be remitted to the Federal Court of Australia that part of the matter pending in this court in which the applicant seeks a writ of mandamus, prohibition or certiorari or an injunction against an officer of the Commonwealth on the grounds that:

   (a)the Refugee Review Tribunal (‘the Tribunal’) failed to observe the procedures that were required by the Migration Act 1958 (Cth) (‘the Act’) or the regulations under the Act to be observed by the Tribunal in connection with the making of the decision challenged in these proceedings;

   (b)the Tribunal did not have jurisdiction to make the decision it did;

   (c)the Tribunal’s decision was not authorised by the Act or the regulations under the Act;

   (d)The Tribunal’s decision involved an error of law, being an error involving an incorrect application of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision whether or not the error appears on the record of the decision.

   3.Further proceedings in the part of the matter that is remitted to the Federal Court of Australia be as directed by that Court.

   4.Costs of the part of the matter that is remitted to the Federal Court of Australia (including the costs of the application to the date of this order) be reserved to that Court.”

   Section 476 of the Act confers jurisdiction on the Federal Court to review decisions of the Tribunal and the order made by Hayne J reflects the grounds of review contained in s 476(1)(a), (b), (c) and (e) of the Act.

   The reasoning of the Tribunal

4. The Tribunal set out the claims of the applicant and I summarise those claims briefly.  The applicant, a Tamil Muslim, said that he conducted a hardware business in Kattankudy and that his parents and brother also lived in Sri Lanka.  From 1985 onwards he sold hardware items to members of the Liberation Tigers of Tamil Eelam (“LTTE”).  These members told him that all the atrocities committed against the Muslim community were not committed by the LTTE but rather by the Israeli forces, the Sri Lankan forces and other Tamil groups.  The applicant believed what he was told.

5. From 1990 onwards he delivered goods for the LTTE and did not have any difficulty in so doing because he was known to own a hardware shop.  He did not know what he was delivering.  In March 1995 his truck was searched.  He was detained by the military and was questioned and tortured.  He was shown photographs of people to try to get him to identify LTTE members.  About one month prior to his departure from Sri Lanka his father visited his place of detention and told him that everything had been arranged.  Later he was taken by a colonel to Colombo and handed over near the airport to his father and another person who he thought was an agent who had arranged his travel.  He then travelled to Australia on a passport and with a visa that was not, according to the Tribunal, “exactly in his correct name”. 

6. The Tribunal accepted that if the applicant’s story was true then he would be a refugee but the Tribunal considered that the applicant had “some considerable credibility problems” which it analysed.  In considering these credibility problems the Tribunal had regard to the observations of Foster J in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 460‑461 in relation to the assessment of a witness’ truthfulness.

7. The Tribunal had available to it a radiological report on a chest x‑ray and a medical examination report dated 27 July 1995 which apparently related to the applicant.  These reports were contained in the file held by the Migration Office of the Australian High Commission in Colombo and were part of the documents supplied to the Migration Office in Colombo in support of an application by the applicant for a student visa.  The applicant contended that the documents submitted to the Migration Office were forgeries and that he had not attended for the chest x‑ray or the medical examination.  Each report contained a photograph of the applicant which was signed by the person making the report and stamped.  The applicant admitted that it was his photograph but denied the authenticity of the documents.  The Tribunal was satisfied that the documents were genuine and that the applicant had attended the medical examination and chest x‑ray on the date of the x‑ray and the report.  The Tribunal said that if the applicant attended for the chest x‑ray and medical examination then his evidence that he was in detention from March until August 1995 was fabricated.

8. The file in relation to the applicant from the Migration Office in Colombo also contained the address of the applicant as being 23 Station Road, Matale.  The applicant said that he did not know this address and claimed that it was an address used by the agent who obtained his passport for him.  The Australian High Commission in Colombo sent a person to check the address and obtain information about the applicant.  That person advised the High Commission that it was the address of the Seven Seas Hotel owned by the applicant’s uncle and that the person had allegedly spoken to several of the applicant’s relatives who said that the applicant was studying in Australia.  These persons said that the applicant lived with his parents in Galhane, 18 kilometres away.  The Tribunal compared the names given by these persons with the applicant’s parents’ actual names and concluded that they were so similar as to indicate that the person was being told about the applicant’s parents.

9. The person who visited the address of the Hotel was also told of another person who was allegedly the applicant’s brother and who had been to Australia.  The Tribunal was satisfied that the applicant had such a brother and that he was not being truthful when he denied this.

10. The Tribunal referred to an Amnesty International Report in 1991 which stated that the LTTE killed hundreds of Muslims in the east including worshippers in two mosques at Kattankudy on 3 August 1990.  The Tribunal did not find it plausible that the applicant, being Muslim, would assist the LTTE in the way he had described or that he would accept their assurance that they had not committed atrocities against the Muslim community. 

11. The Tribunal therefore reached conclusions adverse to the applicant’s credit in relation to the issue of his claim to have been detained between March and August 1995, the information supplied by the applicant’s relatives in Sri Lanka and the assistance the applicant claimed to have given to the LTTE.  The Tribunal then reasoned:

    “In view of the above the Tribunal does not accept that the claims of the Applicant are genuine and concludes that he has concocted his detention in order to claim refugee status.”

    The Tribunal rejected the submission that as various documents had been fabricated to enable the applicant to come to Australia the applicant should be given the benefit of the doubt.  The Tribunal rejected the submission that it was the agent who was involved in the fabrication and not the applicant because of the radiological report and the medical examination report.  The Tribunal said:

    “The Tribunal is entirely satisfied that the Applicant was not in detention as claimed.  He was therefore available to assist in the fabrication of these documents.”

    Applicant’s submissions

12. The applicant submitted, consistently with the reasoning of the Full Bench of the Federal Court in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, that the Tribunal had acted in breach of its obligations pursuant to s 430 of the Act by failing to consider and make findings in relation to:

    ·the claims made by the applicant in relation to his association with, and assistance given to, the LTTE and the perception of him and that association held by the Sri Lankan forces

    ·the possibility that the applicant might be subjected to persecution as a result of the inquiries made about him on behalf of the Migration Office in Colombo at the premises at 23 Station Road, Matale.

    The applicant also submitted that the Tribunal did not provide any reasons for rejecting the applicant’s claim that he had been detained or for its finding that documents in support of his visa application were fabricated.

    Reasoning

13. Although the Tribunal has an obligation to make findings in relation to the material issues which arise for consideration:  Minister for Immigration and Multicultural Affairs v Singh (supra), the Tribunal did not fail to consider any claims raised by the applicant or fail to make any findings in relation to them.  The Tribunal considered and rejected the applicant’s claim that he had assisted the LTTE and it was implicit in this finding that the Tribunal rejected the proposition that the applicant had any association with the LTTE or that there might be any basis for any perception of such association by the Sri Lankan forces.

14. The applicant accepted that the Tribunal had considered and rejected the applicant’s claim that he believed and accepted the assurance he had been given by the LTTE that the LTTE was not responsible for atrocities committed against the Muslim community but contended that the Tribunal had failed to make a finding on the material question of whether the applicant had assisted the LTTE as he claimed.  I do not accept this submission as the Tribunal specifically made such a finding when it said:

    “Finally given Amnesty International in its report Sri Lanka – the Northeast September 1991 states that the LTTE killed hundreds of Muslims in the east including 103 worshippers in two mosques at Kattankudy, Batticaloa district on 3 August 1990, the Tribunal does not find it plausible that the Applicant would assist the LTTE in the way described or that he would accept their assurance that they were not responsible.  The Tribunal also does not accept the submission that the Applicant is ill‑informed.  Even if there are instances, however rare, of Muslim people assisting the LTTE for money or other reasons the Tribunal does not find the Applicant’s evidence about his belief that the LTTE were not responsible for such massacres as plausible and accordingly does not accept he assisted them in the way claimed.”

    In this passage the Tribunal addressed not only the proposition that the applicant accepted the LTTE’s assurance but also the issue whether the applicant had assisted the LTTE.  Furthermore the Tribunal gave reasons for reaching these findings.

15. The Tribunal was entitled to take into account the information which it had obtained from the Australian High Commission in Sri Lanka and it is apparent from the Tribunal’s reasons that it gave the applicant the opportunity to respond to this material and information.  In the Tribunal’s reasons, the Tribunal noted that the applicant had admitted it was his photograph on the radiological report and the medical examination report and that the applicant’s adviser had submitted that the medical examination form had been tampered with.  The Tribunal also noted that the applicant claimed that he did not know what was said to be the address of the applicant contained in the file obtained from the Australian High Commission in Sri Lanka.  The Tribunal also noted that the applicant denied that he had a brother in Australia.

16. I do not consider that it was a material question of fact to be determined by the Tribunal whether the applicant might be subjected to persecution as a result of the inquiries made by the Migration Office.  It was not a claim specifically raised by the applicant at the hearing before the Tribunal but rather was adverted to in correspondence from the applicant’s former legal adviser to the Department of Immigration and Multicultural Affairs.  After the applicant was supplied with the information obtained by the Migration Office, his solicitor sent the Department a statutory declaration responding to the information which had been obtained together with a translation of a newspaper article relevant to the applicant’s claim that Muslims were associating with the LTTE and were being detained by the armed forces because they fitted the profile of members of the LTTE.  In a covering letter the applicant’s solicitor said:

    “I note also that the Australian High Commission sent a ‘contact’ to speak with persons in Sri Lanka about Mr Mohamed Shaly.  According to documents obtained under FOI, the persons spoken to by the ‘contact’, ‘denied any knowledge of Zanoos’ involvement with the LTTE’.  Regardless of the merits of Mr Mohamed Shaly’s application up to that point, quite clearly the actions of the AHC ‘contact’ in asking whether Mr Mohamed Shaly was involved with the LTTE have now put Mr Mohamed Shaly’s life in direct jeopardy.”

17. The applicant said that because this letter was part of the material placed before the Tribunal, the Tribunal was bound to make a finding on this issue.  I reject this submission.  Although the Tribunal may be required to determine the substantive issues raised by the material before it:  Paramanathan vMinister for Immigration and Multicultural Affairs (1998) 94 FCR 28, at 63‑64 per Merkel J, the Tribunal was not bound to make a finding on every factual issue raised by the applicant: Arudselvan vMinister for Immigration and Multicultural Affairs [1999] FCA 1726 at [12]; Minister for Immigration and Multicultural Affairsv Singh (supra) at [46]. I am not satisfied that this matter was raised as an issue or that it was an issue which the Tribunal should have pursued to the extent of making a finding in relation to it and giving reasons for such a finding. I do not consider that it was a substantive issue raised by the material before the Tribunal. Although the matter is adverted to in the letter, there is no basis suggested for the proposition that the applicant’s life might be in jeopardy. The inquiry was made of persons who were said to be the applicant’s relatives; they denied any knowledge of the applicant’s involvement with the LTTE; there was no suggestion that the authorities or armed forces had or might become aware of the inquiry. It is not credible that these persons, in these circumstances, would tell the authorities or the armed forces of the nature of the inquiry. It should also not be forgotten that the Tribunal had made a specific finding that it did not accept that the applicant had assisted the LTTE in the manner he claimed. The matter of the consequence of the inquiry was not a material question of fact to be determined; rather it was no more than a speculative issue.

18. I am satisfied that the Tribunal complied with its obligations to make findings on the material questions of fact as required by s 430 of the Act and accordingly there was no failure of the Tribunal to observe procedures within s 476(1)(a) of the Act.

19. The applicant submitted that, other than relying on information obtained from the Australian High Commission in Sri Lanka, the Tribunal did not provide any reasons for the rejection of the applicant’s claim that he had been detained, or for its admission of the material and information obtained by the Australian High Commission and how it affected its conclusion.  The applicant relied upon Craig v State of South Australia (1995) 184 CLR 163 at 179 and Edwards v Justice Giudice [1999] FCA 1836 at pars 97‑110. In short the applicant appeared to be saying that as the Tribunal had in some way made an erroneous finding of fact it had fallen into an error of law and therefore failed to exercise jurisdiction.

20. The applicant’s argument was difficult to follow because it was submitted that a question which the Tribunal was obliged to address was whether the applicant had a well‑founded fear of persecution, consistently with the reasoning in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. I reject the submission that the Tribunal did not address this question. The Tribunal specifically addressed the relevant principles to apply consistently with the reasoning in Chan and then reached a conclusion on the facts.  Its findings on the applicant’s claims, which resulted in adverse findings on the applicant’s credibility, led to the inevitable conclusion that there was no objective basis for a fear of persecution by the applicant.  That is to say, the applicant did not have a well‑founded fear of persecution.  In my view, the question which the Tribunal addressed, and answered, was the correct question.  The applicant’s submission based upon jurisdictional error which was said to arise from the Tribunal asking itself the wrong question is misconceived and involves a misunderstanding as to the Tribunal’s reasoning and its conclusion.  In the circumstances it is not necessary to consider any further the reasoning of the High Court in Craig v State of South Australia (supra) or the extent of the distinction in Australia between jurisdictional and non‑jurisdictional error:  see Balamurali v Minister for Immigration and Multicultural Affairs [2000] FCA 1324 and the cases cited in par 38 of that decision.

1. The applicant challenged the Tribunal’s rejection of his claim that he had assisted the LTTE on the ground that it was not plausible that a Muslim would assist the LTTE in the manner he had described.  It was said that there was other evidence before the Tribunal of Muslims assisting the LTTE.  This challenge does not bring the applicant within any available ground of review.  It goes close to submitting that the Tribunal should have made a different finding of fact or that the Tribunal should not have rejected such evidence which are not available grounds of review.  Although such evidence may be inconsistent with the findings made by the Tribunal, the Tribunal was not required to give reasons why it did not rely on this evidence:  Minister for Immigration and Multicultural Affairs v Singh (supra) at [46].

2. It follows that I should reject the submission that because the Tribunal ignored relevant material or identified wrong questions or issues and took into account irrelevant material that its decision was not authorised by the Act. For the reasons to which I have referred the Tribunal did not fall into any such error of law and did not act beyond jurisdiction.

3. It also follows that the Tribunal’s decision did not involve any error of law in the sense that it failed to determine any of the substantive issues raised before it or failed to consider whether the applicant had a well‑founded fear of persecution.  The thrust of the applicant’s submissions was that the Tribunal ought not to have rejected the applicant’s claims and should not have concluded that the applicant was not a credible witness.  This is no more than a submission that the Tribunal should have made different findings of fact.  It is trite to say that such a submission does not entitle the applicant to rely upon any of the grounds which are referred to in the order of Hayne J and upon which the applicant has relied.

4. The applicant also relied upon a further submission that the Tribunal had committed an error of law because, in substance, it failed to consider the consequences of it being wrong if it rejected the applicant’s claim that he had been detained by the Sri Lankan military forces and that he had assisted the LTTE.  The applicant submitted that the Tribunal is obliged to consider the consequences if it was wrong on its findings of fact, relying upon the reasoning in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. There is no substance in this submission. It is not in every case that the Tribunal is obliged to consider the proposition, put colloquially, “what if I am wrong?” The Tribunal came to a firm and positive conclusion. It did not express any doubt about the conclusions it had reached. For example, the Tribunal said that it was “entirely satisfied that the Applicant was not in detention as claimed” (emphasis added).  Having regard to the manner in which the Tribunal reached its conclusions it was not obliged to consider the consequences for the applicant if it was wrong in its findings of fact:  Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, per Sackville J at [63]‑[64]; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 421‑422.

5. It therefore follows that none of the grounds remitted by Hayne J to the Federal Court have been made out.  The applicant is not entitled to any relief in respect of that part of the proceeding remitted by the High Court.  The applicant should pay the respondent’s costs of and incidental to the proceeding in this Court.

I certify that the preceding twenty‑five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:             10 October 2000

Counsel for the Applicant:	A J Krohn
Solicitor for the Applicant:	Ravi James & Associates
Counsel for the Respondent:	W Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 September 2000
Date of Judgment:	10 October 2000