SZCWZ v Minister for Immigration

[2006] FMCA 642

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCWZ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 642

MIGRATION – RRT decision – Sri Lankan Tamil – claims addressed in 1996 – no error found.

Acts Interpretation Act 1901 (Cth), s.8
Migration Act 1958 (Cth), ss.424A(1), 427(1)(d), 474(1), 477(1A), 483A, Pt.8
Migration Legislation Amendment Act (No.1) 1998 (Cth), s.2(2), Sch.3 cll.3, 20
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 Pt.2 cl.8(2)(b),
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Applicants S1573 of 2003 v Minister for Immigration & Anor [2005] FMCA 47
Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976 at
Guo v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 151
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
NABC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 135 FCR 282
NADR of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
SZAWW v Minister for Immigration [2003] FMCA 479
SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 368
SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416
Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212

Applicant: SZCWZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG608 of 2004

Judgment of: Smith FM

Hearing date: 21 April 2006

Delivered at: Sydney

Delivered on: 21 April 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms V A Hartstein

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent. 

2. The application is dismissed. 

3. The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG608 of 2004

SZCWZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 8 March 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 June 1996 and sent to the applicant and his solicitor on 26 June 1996.  The Tribunal affirmed a decision made by a delegate on 12 October 1995, refusing to grant a protection visa to the applicant in response to his application for refugee status lodged on 21 April 1995. 

2. The Court was not in existence when the Tribunal’s decision was made, but its jurisdiction under s.483A covers previous decisions (see SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 368). Section 483A has now been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).

3. The Court’s jurisdiction under s.483A in relation to many matters is subject to limitations under provisions of Part 8 of the Migration Act applicable to privative clause decisions, including the bar on relief under s.474(1) and the time limit under s.477(1A). However, those provisions were subject to a transitional provision, which made the limitations inapplicable to an application in relation to a decision which was subject to pending judicial review proceedings at the time of its commencement (see Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 cl.8(2)(b), and the discussion in SZAWW v Minister for Immigration [2003] FMCA 479 at [4], Applicants S1573 of 2003 v Minister for Immigration & Anor [2005] FMCA 47 at [4]‑[8], SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416 at [12], and SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 368 at [33]).

4. In the present case it is common ground that from some time in 1999 until April 2004 the applicant was a litigant, firstly as a represented party in the “Muin and Lie” High Court proceedings, and then by way of his own application for an order nisi which was remitted to the Federal Court and dismissed by Emmett J.  His present application is therefore not subject to the privative clause limitations.  It does, however, require me to be satisfied that the Tribunal’s decision was vitiated by an actual or constructive failure to exercise jurisdiction allowing an issue of writ of mandamus under common law principles, before I can give the applicant the relief which he seeks. 

5. His application also remains subject to the Court’s discretion to grant relief, even if an entitlement to a writ of mandamus is made out.  In the present case the Minister has raised discretionary considerations as an issue.  While accepting that the applicant’s involvement in the High Court and ancillary proceedings after 1999 may sufficiently explain the subsequent delay in commencing the present proceeding, the Minister contends that the applicant has not explained a period of at least two years after receiving the Tribunal’s decision in June 1996 and before commencing any judicial review challenge to the legality of the Tribunal’s decision. 

6. This is a matter which the applicant addressed in his written submissions, but not in any sworn evidence.  He refers in his written submission to having spent some unknown period of the delay after 1996 in seeking a special temporary residence visa available for Sri Lankan Tamils, and to having also applied to the Minister to exercise his discretion in August 1997.  The details of these exchanges with the Department of Immigration are not in evidence before me, and the evidence is inadequate at present for me to form any conclusions as to whether the applicant has a satisfactory explanation for his initial delay in commencing judicial review proceedings. 

7. However, for the reasons which I shall explain below, I have decided I do not need to address whether I would have refused relief.  This is because I do not consider that the Tribunal’s decision has been shown to be materially subject to any error permitting the grant of a writ of mandamus requiring the Tribunal to afford the applicant a further opportunity to present his refugee claims. 

8. One of the matters which the Minister raised in relation to the question of delay was the fact that the applicant’s file in the Department of Immigration concerning his application for refugee status and its determination was destroyed under normal procedures on 3 October 2002.  This has had the consequence that the Court Book in the matter contains only the primary decision as the sole record surviving from that file.  It is therefore unclear to me how the applicant’s original claims were presented to the delegate.  Reference is made in the papers to the refugee application having been lodged on 21 April 1995, and that the applicant was interviewed about his claims on 13 September 1995.  In the delegate’s decision, only a brief description is given of the applicant’s claims to fear persecution if he returned to Sri Lanka, his country of nationality, based on his Tamil ethnicity.  However, it is not necessary for me to describe or examine the delegate’s reasoning. 

9. The applicant lodged an application for review by the Tribunal, whose files do not appear to have been destroyed, on 23 October 1995 assisted by the Refugee Advisory Service.  He subsequently employed a firm of experienced immigration solicitors, McDonells Solicitors, who assisted him to present to the Tribunal a statutory declaration fully setting out his circumstances and some documents in support.  The applicant was also accompanied by his solicitor to the Tribunal’s hearing held on 14 June 1996. 

10. The Tribunal sufficiently summarised the applicant’s claims in its reasons: 

    The applicant worked as a court interpreter in Kandy, a Sinhalese area, from 1972 to 1983.  He claims that during the 1983 communal riots the Sinhalese extremists came to his house and destroyed his belongings.  He was evacuated to Jaffna after a brief stay in Colombo.  He claims that the government required public servants who had been evacuated to return to work within 6 months.  He went to Kandy, was unable to locate accommodation for his family as the Sinhalese would not rent to Tamils and he was unable to obtain an extension of time within which to return to work.  As he did not report for work within the specified time he was terminated from his job. 

    He claims that the Sri Lankan army surrounded their village three times in 1985 and a number of local Tamil liberation fronts regularly demanded money, jewellery and food from them. 

    He claims that when the Indian Peace Keeping Force (IPKF) arrived in early 1987 they searched his house for Tigers and questioned them about connections with the LTTE.  He also claims that his daughter was harassed by the IPKF and forced to change schools and that during the shelling in 1991 his mother in law was unable to get medical treatment and died. 

    The applicant claims that his house was damaged by shells in 1993 and to avoid the shelling he left Jaffna and went to Colombo.  His wife joined him in Colombo, leaving his daughter in Jaffna with family members. He did odd jobs in Colombo and was forced to change accommodation frequently.  The applicant claims that he was subjected to nightly police checks and that in 1994 he was questioned about whether he supported the LTTE. 

    He claims that on the way to the airport in April 1995 he was questioned about links to the LTTE but with the help of the agent, he had no trouble leaving the airport. 

    The applicant claims that in July 1995 his parents and daughter had to leave their home and were later evacuated from the Jaffna area to a refugee camp.  His father subsequently died from lack of care. 

    The applicant also claims that his brother returned from Saudi Arabia and was taken into custody by the Sri Lankan army in Colombo and is now missing.  He claims that if he returns he will be taken into custody, be questioned and subjected to inhumane treatment.  In support of this claim he submitted a letter from his wife dated 29 October 1995. 

    He also claims that if his daughter goes to Colombo she is at risk of being detained by the security forces as a suspected Tiger. 

    In additional submissions, the applicant’s adviser submitted that under the Sri Lankan Prevention of Terrorism Act any statements made during police custody are admissible in court, and that as statements are often extracted using torture the applicant could be sentenced to 20 years jail based on a statement made under torture. 

    The adviser also submitted that the applicant cannot relocate to Colombo as he has been harassed, threatened and questioned on two occasions by the security forces and he has been unable to secure adequate accommodation or steady employment in Colombo. 

    In support of his application the applicant submitted a number of documents including correspondence from his wife, his daughter’s school certificates and her birth certificate and a letter from the International Committee of the Red Cross dated 26 March 1996.  

11. In a written submission to the Tribunal by his solicitors, they summarised his Convention reasons for fearing persecution as follows: 

    Convention Reason 

    The applicant fears persecution for reasons of race, he is Tamil, and for reasons of imputed political opinion, he is suspected of being an LTTE supporter.  At the hands of the LTTE, the applicant fears persecution because of his imputed support of the EPRLF, and at the hands of the EPRLF, the applicant fears persecution because of his imputed support of the LTTE. 

12. The Tribunal did not give a description of the evidence given by the applicant at the hearing, but referred from time to time in its reasons to some of that evidence.  A transcript is not in evidence before me, and it is not possible for me to make definite findings as to what might have been said in the course of the hearing, or what was not said at the hearing. 

13. The Tribunal informed itself about the law concerning refugee decision‑making as it was understood back in 1996.  Although there have been many subsequent illuminating discussions of the Convention definition of “refugee” and its correct application by decision‑makers, in my opinion, the Tribunal’s present decision emerges unscathed in terms of its appreciation of the law.  Indeed, because the decision was made between the Full Court’s judgment in Guo v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 151 (“Guo’s Case”) and the High Court’s judgment in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, the Tribunal may have followed a more demanding approach to its findings on factual matters than might now be required.

14. The Tribunal’s reasoning under the heading “Findings and Reasons for Decision” encompassed both its identification of relevant country information, and also its particular reasoning concerning the applicant’s claims. 

15. Not only has much water passed under the judicial bridge in relation to refugee law, but the troubled history of Sri Lanka has continued over the last 10 years.  The situation at the time that the Tribunal decided this case was described in various pieces of country information which the Tribunal referred to.  In particular, the Tribunal noted a recent recapture of the Jaffna peninsula, and the possibility at that time that the LTTE insurgency might be approaching its end.  However, the Tribunal noted that “despite the Government victory in Jaffna town, the LTTE is not a totally spent force in the Jaffna district”.  It concluded:  

    The Tribunal accepts these reports as accurately representing the situation in Sri Lanka and is satisfied that although the Government is largely in control of the north and the civil war has been greatly diminished in scope, it has not totally abated and that the security controls introduced to deal with it have a major impact on human rights throughout Sri Lanka. 

    The Tribunal accepts that because of the seemingly intractable ethnic conflict, many people in Sri Lanka are enduring fear, deprivation and extreme personal danger.  However generalised ethnic conflict in itself is not a ground for protection under the Convention.  The Tribunal must consider whether the applicant himself faces a real chance of persecution for a Convention reason if he returns.  It has considered whether there is a real chance that he will be persecuted if he returns to his home in Sri Lanka, and if he does face persecution for a Convention reason there, whether he can avail himself of the Internal Flight Alternative and relocate to another safe part of the country. 

16. The Tribunal then addressed the situation which would face the applicant if he returned to the Jaffna district.  It noted logistical difficulties facing his travel to that part of Sri Lanka.  It also said:  

    the Tribunal notes that the applicant does not have the personal profile of a person perceived by the security forces as likely to be an LTTE supporter.  He is an older man with no history of commitment to the LTTE or any other liberation group.  He has close family in the Jaffna area and he lived there for 10 years until 1993. 

17. The Tribunal then considered whether he would be at risk by reason of a claimed situation of his brother.  It said: 

    However the Tribunal also notes the applicant’s evidence that his brother has been taken into custody by the security forces on suspicion of being an LTTE sympathiser and that he has disappeared.  It has considered the veracity of this evidence and the implications for the applicant if he is related to a person who has disappeared in police custody on suspicion of being an LTTE sympathiser. 

    The Tribunal notes the applicant’s evidence that his older brother speaks only Sinhalese and returned from Saudi Arabia to Colombo in 1993.  It notes his evidence that his brother disappeared in 1993 or 1994 but that he did know of his disappearance until his wife wrote to him on 29 October 1995.  This was despite the fact that he was living in Colombo at the time of the alleged disappearance and continued to live there for some time. It also notes that he has not made any enquiries about his brother’s disappearance from any of the Sri Lankan authorities, the Human Rights Task Force or any international human rights body. 

    In considering this claim the Tribunal has [had] regard to the view of Foster J. in Guo’s Case noted above.  It accepts that Tamils of all ages are frequently picked up and detained by the security forces and that there have been many reports of suspects disappearing in custody.  However it has a positive state of disbelief that the applicant’s brother disappeared in the custody of the security forces in Colombo.  The Tribunal does not accept that if his brother had disappeared in suspicious circumstances that he would not have been told of this for approximately 2 years.  Even if he was not in regular contact with his brother or sister in law, the Tribunal does not accept that other members of his family would have failed to inform him of the incident during a period of approximately 2 years in which he lived in the city in which his brother allegedly disappeared.  The Tribunal also notes that the only evidence of the alleged disappearance is a self serving letter from the applicant’s wife and that this letter was submitted without any envelope or other indicator of its origins. 

18. As well as disbelieving the applicant’s claim that he had a brother who had disappeared, the Tribunal considered that his own history of treatment by the security forces during his final period in Colombo was “inconsistent with their general attitude to the families of known LTTE sympathisers”.  The Tribunal referred to some country information and said: 

    The applicant continued to live in Colombo for approximately 2 years after the alleged disappearance and in that time he was questioned only twice by the security forces and not arrested or detained for a lengthy period.  Given the extent of the security checks on Tamils in Colombo and the above opinion, the Tribunal does not accept that if his brother was an LTTE suspect that this fact would not be raised by the security forces when he was questioned.  The Tribunal has a positive state of disbelief that the applicant’s brother has been arrested as an LTTE sympathiser and disappeared in police custody. 

    While the applicant may have logistical difficulties in reaching Jaffna, having regard to his [personal] profile and the absence of any connection with the LTTE, the Tribunal finds that there is no more than a remote possibility that the applicant would be subjected to persecution by the security forces in Jaffna. 

19. Those findings concluded the Tribunal’s discussion of the applicant’s situation if he returned to Jaffna. 

20. The applicant in his oral submissions to me sought to establish a jurisdictional error by reason of the Tribunal making a mistake of fact concerning his claims about his brother’s disappearance or detention by security forces.  I shall discuss his submissions below. 

1. Neither his oral or written submissions challenged with any particularity any other part of this reasoning by the Tribunal.  However, I had a concern which I raised with counsel for the Minister, as to whether the Tribunal adequately identified and addressed a contention, which I think was raised for the Tribunal’s consideration by the applicant’s solicitor, that the applicant feared harm at the hands of the LTTE for political reasons by way of imputed support of the EPRLF, which was the expeditionary military force for the government, if he returned to Jaffna area.  Implicit in that claim was a concern that he would not receive adequate state protection against such harm, thereby establishing a Convention basis for fears regardless of the reasons for state protection being unavailable.  I consider that such a claim would not be sufficiently addressed merely by considering whether the Sri Lankan authorities might themselves directly persecute the applicant for a Convention reason. 

2. I have not been able to identify in the Tribunal’s reasoning an adequate addressing of that aspect of the applicant’s claims in its examination of the applicant’s situation if he returned to the Jaffna district.  However, in my opinion, this omission does not give rise to an entitlement to relief on the part of the applicant, because the Tribunal proceeded to address the applicant’s situation outside the Jaffna district.  It said: 

   However the Tribunal has also considered the situation if he was unable to return to Jaffna or if there was a real chance that he would face persecution there and whether there is another safe haven in Sri Lanka to which he could return. 

3. It discussed this under a heading: “Internal Flight Alternative:  Colombo”.  The Tribunal discussed over five pages the law concerning internal relocation, including reference to Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 (“Randhawa’s Case”), and the country information concerning the situation of Tamils living in Colombo including those returned from overseas. 

4. In the course of this discussion, the Tribunal referred to concerns about returnees from overseas.  It said: 

   It also notes reports that returnees from Australia may be particularly vulnerable to being targeted as suspected supporters of the LTTE.  The Sydney Morning Herald noted that Tamil community leaders in Australia often speak in support of the LTTE.  See Curb Tiger Groups, Evans Told.  Sydney Morning Herald, 9 February 1996, and Sydney Funding Tamil Terror, Sydney Morning Herald, 10 February, 1996.

   The applicant is an older, well educated man who speaks Sinhalese and who has lived in Colombo in the past.  However, despite his personal profile and his past experience in only being questioned twice, the Tribunal accepts the reports above on the extent of the ‘search and sweep’ operations regularly conducted by the security forces in Colombo and finds that there is more than a remote possibility that the applicant could be again picked up and questioned by the security forces. 

   However whilst he may be picked up and questioned this alone may not constitute persecution.  The Tribunal has also considered whether there is a real chance that he could be subjected to mistreatment amounting to persecution if he was picked up and detained. 

   … 

   However whilst it notes the Amnesty International report on 28 March 1996, that a Tamil returnee from Saudi Arabia was arrested and subsequently disappeared in Colombo on 7 March 1996, the Tribunal has found above that there is no more than a remote possibility that the applicant has a brother who disappeared in police custody.  Having regard to his personal profile and experiences in Colombo, the Tribunal finds that if he was detained by the police there is no more than a remote possibility that he would be subjected to mistreatment amounting to persecution by the security forces. 

   The Tribunal has also considered the applicant’s claims that relocation to Colombo would result in housing and employment problems and his daughter would be in danger from the security forces.  In relation to the issues of housing and employment, the Tribunal notes that the applicant is a qualified interpreter/translator, he speaks Sinhalese, he has a broad range of skills and experience and his wife is living in Colombo.  Having regard to these factors, the Tribunal does not accept that he would be unable to obtain suitable employment or locate suitable housing in Colombo. 

   In relation to his claim that his daughter would be in danger in Colombo, the applicant has presented no evidence that during her time in Colombo, before the Central Bank bombing in January 1996, that his daughter was harassed or in any way targeted by the security forces as an LTTE sympathiser. 

   Having regard to all the evidence of the applicant and the views noted above, in particular the UNHCR position on the Internal Flight Alternative of Colombo noted above in the report prepared by the Social Affairs Reporting Unit of the Canadian High Commission, February 1996, ‘Issues Relating to the Return to Sri Lanka of Failed Asylum Seekers’, the Tribunal finds that relocation to Colombo is reasonable within the meaning of Randwaha’s Case. 

5. In my opinion, this discussion of the applicant’s situation if he returned to Colombo was not attended by any error of law or error of fact amounting to constructive failure to exercise jurisdiction on the part of the Tribunal.  I am not persuaded that its conclusions were not open to it on the material which was before it. 

6. I have been conscious that the applicant is not represented in the Court by lawyers, and has not been able to present any legal submissions to me today.  For that reason I have considered whether there are arguments available to him which could establish his entitlement to the remedy he seeks.  I have not found such an argument. 

7. The applicant did not address any of his submissions to either his original application or his amended application, which contained numerous grounds.  I have thought about those documents. 

8. The grounds in his application are framed in such generality without particulars as to not to be able to be meaningfully addressed. 

9. The applicant filed an affidavit which in paragraph 13 appears to wish to raise errors such as were identified in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 (“Muin and Lie”).  Paragraph 13 states: 

   The RRT Member before she made her decision failed to make aware of, and given an opportunity to me to respond to adverse material in possession of the Tribunal categorised by the delegate of the Minister for Immigration and Multicultural Affairs as the Part B Documents of her decision dated 25 June 1996 (Exhibit A1).  I state that I was misled and I have not unreasonably acted on the basis of what I had been told.  In those circumstances, I state for the reasons stated above there is an error of jurisdiction and I was also not accorded natural justice due to the failure to accord me procedural fairness. 

10. No further evidence was sought to be led by the applicant as to relevant breaches of procedural fairness: either to show that the Tribunal failed to address favourable information which the applicant was misled into believing it had addressed, or to show that it had regard to unfavourable information which the applicant was not allowed an opportunity to respond to. 

11. In relation to the first of these Muin and Lie issues, the above paragraph of the applicant’s affidavit does not provide sufficient evidence, nor is there such evidence elsewhere in the material.  In particular, the Court Book does not contain any letter, such as was sent by the Tribunal in Muin and Lie which was found (or conceded) to have had a misleading effect.  Nor is there any evidence that would persuade me that the Tribunal failed to consider the Part B documents referred to by the delegate in his reasons.  There are also other evidentiary defects facing this claim which I do not need to address (see NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [7], referring to NADR of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465. See also NABC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 135 FCR 282).

12. In relation to a claim that the applicant was denied opportunity to respond to adverse material taken into account by the Tribunal, the applicant has nowhere identified what that information is claimed to have been.  Nor has the applicant led any evidence from himself, his solicitor or by way of a transcript, to establish that any adverse information taken from country information was not sufficiently canvassed with him at the hearing.  Given the careful manner in which this Tribunal appears to have approached the case, and the closeness of the decision to the hearing which it conducted with the applicant and his solicitor, I think it more likely that it fully canvassed the then current situation in Sri Lanka with the applicant at the hearing.  I do not consider that the applicant has made out a failure of procedural fairness under principles applied in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.

13. The applicant filed an amended application on 25 October 2004, which appears to be a document prepared with the assistance of someone with some legal background.  It contains four grounds.  Ground 1 alleges:  

    1.The Tribunal failed to accord procedural fairness. 

    Particulars 

    The RRT Member before she made her decision failed to make aware of and provided those official cables and reports, and given an opportunity to me to respond to those adverse material in possession of the Tribunal categorised by the delegate of the Minister for Immigration and Multicultural Affairs as the Part B Documents of her decision dated 12 October 1995 and several official DFAT cables and reports and other Country Information materials obtained from the CISNET electronic database. 

14. As I have explained above, this contention, as well as lacking particulars, has not been given the evidentiary foundation required for it to be established.  

15. Ground 2 of the amended application is: 

    2.The Tribunal failed to perform the duty imposed on it by the Migration Act (section 424 (1)) to decide the applicant’s case on the material put to it and by conducting an appropriate enquiry there on; (section 424(1)) obliges the RRT to have regard to information before it if relevant to the applicant’s claim. RRT Member failed to have regard to the information before her for the purposes of the review.

    Particulars 

    The Tribunal Member failed to consider the documents and information regarding the prevailing war situation in Sri Lanka, the applicant’s elder brother’s arrest and detention by the Sri Lankan Army in Colombo, his mother in law’s death due to harassment by the Sri Lanka Army, tragic death of the applicant’s father, a victim during the October 1995 Military Operation in Jaffna Peninsula and these information were conveyed to the applicant’s wife who was temporarily living in refuge in Colombo by no other than the International Committee of Red Cross (ICRC) due to break down of all communication from northern province to out side world.  (AP Pages 21 & 22).  The Tribunal Member failed to consider the cumulative effect of these happenings to the reluctance of the applicant to return back to Sri Lanka and his genuine fear of persecution. 

16. However, on my reading of the Tribunal’s reasons the Tribunal has expressly considered the documents presented to it, in particular, the letter from the applicant’s wife.  I am not persuaded that there was any element in the applicant’s claims which it has failed to take into account.  It was the task of the Tribunal to assess the applicant’s evidence and to decide how much of it was accepted as true.  The fact that the Tribunal did not accept the whole of the applicant’s evidence does not establish that it failed to consider it. 

17. Ground 3 of the amended application alleges a breach of s.424A(1) (erroneously referred to as subsection (3)). However, the duties currently on the Tribunal under that provision were not part of the Migration Act at the time of its decision, since they were introduced by legislation which came into effect after the Tribunal’s decision (see Migration Legislation Amendment Act (No.1) 1998 (Cth), s.2(2), Sch.3 cll.3 and 20). 

18. Ground 4 of the amended application claims: 

    4.The Tribunal failed to exercise the power conferred on the Tribunal under s.427(1)(d) of the Migration Act.

    Particulars 

    The Tribunal was put on notice that the applicant was suffering from Post Traumatic Stress Disorder (PTSD) and severely traumatised by his experiences and the arrest, detention and torture it was unfair for the Tribunal to put the obligation on the applicant at the hearing to identify all of his claims, with out exercising the power conferred on the Tribunal under s.427(1)(d) of the Migration Act.

19. However, it is well established that it is normally not the duty of the Tribunal to investigate factual issues raised by an applicant by conducting further inquiries for itself (see Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976 at [18]; Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 at [15]; Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]). The Tribunal in my opinion was under no duty to exercise a power under s.427(1)(d) in this case.

20. The applicant filed a written submission on 31 March 2006.  The only submission concerning error by the Tribunal is made on page 4, where there is a contention that: 

    the applicant on his return from Australia could also be targeted in Sri Lanka for being a suspected supporter of the LTTE as Tamil community in Australia is well‑known for its support of LTTE.  This claim was not considered by the Tribunal and no finding was made in relation to it.  

21. However, as I have indicated above, the Tribunal did consider the risk which is referred to, and decided that even if the applicant were detained briefly on his return: “there is no more than a remote possibility that he would be subjected to mistreatment amounting to persecution”.  The Sydney Morning Herald report which the applicant refers to in his written submission was expressly considered by the Tribunal.  I consider that it was open to the Tribunal to reach its stated conclusions in relation to this risk. 

22. As I have indicated, the applicant attended the hearing today, where he addressed me mostly in English.  He also had the assistance of a Tamil interpreter who translated some parts of the proceedings.  He made two arguments. 

23. The first relied upon documents which he sought to tender, over the objection of the Minister.  I received them as exhibits, subject to relevance.  They included a document headed “Affidavit” by the applicant’s wife signed on 6 February 2004, which contains further evidence concerning her situation after her husband’s departure. 

24. More relevantly to his arguments, the applicant also tendered a letter from the Australian Red Cross dated 23 July 1997 which informed him: 

    We hereby confirm that [the applicant’s brother] was visited on several occasions by the ICRC delegates between 1.7.94 and 20.9.94 at [place] Police Station.  Later on, he was transferred to the [place] Prison where he was re‑visited between 1.12.94 and 28.5.7 [sic: 97]. 

25. The applicant argued that this was evidence that, in fact, his brother had been held in detention by the Sri Lankan authorities, and that it disproved the adverse opinions on his claims about his brother which were arrived at by the Tribunal. 

26. The actual extent of the corroborative force of the Red Cross letter for the applicant’s claims might be a matter of debate.  However, in my opinion, the tender of this fresh evidence to disprove a factual finding by the Tribunal does not establish jurisdictional error on the part of the Tribunal when arriving at a factual finding within the scope of its review.  The duty of the Tribunal was to perform its review on the material presented to it and available to it, and the Court has no power to set aside a decision on the basis that fresh evidence would disprove a finding of fact made by the Tribunal which was open to it on the material which in fact was before it. 

27. I explained this to the applicant, and pointed out that if he now had evidence which was not considered by the Tribunal and which established his current refugee status, then his remedy would be to present it to the authorities in the Department of Immigration in support of an application for discretionary intervention. 

28. The applicant’s second argument must, unfortunately, be met with the same response.  He made an emotional request to the Court to find jurisdictional error so as to allow his case to be heard again by the Tribunal, and he asserted his claims currently to have fears for his life if he returned to Sri Lanka.  However, as I have also explained to the applicant, the Court does not have powers which allow it to give a remedy based on those considerations. 

29. For the above reasons, I have not found jurisdictional error affecting this Tribunal’s decision, nor any other error which would permit the grant of writs of mandamus, certiorari and prohibition as requested by the applicant under common law principles.  I must therefore dismiss the application. 

I certify that the preceding forty‑nine (49) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  12 May 2006