SZOMT v Minister for Immigration
[2011] FMCA 3
•31 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOMT v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 3 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Sri Lanka as a Tamil Muslim – whether the Tribunal breached ss.424A or 424AA of the Migration Act 1958 (Cth) considered. |
| Migration Act 1958 (Cth), ss.424, 424A, 424AA |
| Minister for Immigration v NAMW (2004) 140 FCR 572 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZBYR v Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609 VHAP of 2002 v Minister for Immigration (2004) 80 ALD 559 VJAF v Minister for Immigration [2005] FCAFC 178 WAJW v Minister for Immigration [2004] FCAFC 330 |
| Applicant: | SZOMT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1406 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 11 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Mr T Selliah Selliah & Associates |
| Counsel for the Respondents: | Mr J A C Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1406 of 2010
| SZOMT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 28 May 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Sri Lanka and had made claims which could be characterised as claims based on political opinion, imputed political opinion, ethnicity and religion. The following statement of background facts is derived from the submissions of the parties.
The applicant is a 47 year old citizen of Sri Lanka.[1] He is a Tamil speaking Muslim.[2] He arrived in Australia on 29 June 2009.[3] He has a wife, four children and six siblings remaining in Sri Lanka.[4]
[1] Court Book (“CB”) at 25-26.
[2] CB at 1 and 26.
[3] CB at 27.
[4] CB at 3.
On 29 July 2009 he made an application for a protection (Class XA) visa.[5] In that application he claimed to have been an ardent and active supporter of the opposition United National Party (“UNP”). He claimed to have been involved in selling vehicles to the Liberation Tigers of Tamil Eelam (“LTTE”).[6] The applicant claimed to have been arrested and subjected to life threatening harassment and persecution, first by the Terrorist Investigation Division (“TID”), and then by the Karuna Group, a pro-government paramilitary group. Both referred to his Muslim ethnicity and active support for the UNP and imputed that he was a sympathiser or supporter of the LTTE. It was asserted that Tamil speaking Muslim businessmen who support the opposition UNP and have had some link with the LTTE are a group of people singled out and targeted by the Sri Lankan authorities and pro-government paramilitary outfits.[7] It was asserted that he feared persecution for the convention reasons of race, membership of a particular social group and imputed political opinion if he were to return to Sri Lanka.[8]
[5] CB at 1-59.
[6] CB at 1.
[7] CB at 1.
[8] CB at 2.
On 26 October 2009 a delegate of Minister refused to grant a protection visa.[9]
[9] CB at 98-103.
On 18 November 2009 the applicant sought review by the Tribunal.[10] The applicant attended a hearing with his representative on 29 January 2010.[11]
[10] CB at 105-108.
[11] CB at 127-129.
As noted above on 28 May 2010 the Tribunal affirmed the decision.[12]
[12] CB at 152.
The Tribunal’s decision
While the Tribunal accepted that the applicant was a Muslim and was a member of the UNP and supported the UNP during the 2009 elections, it did not accept the applicant had left his country and could not return for the reasons that he had claimed. The Tribunal considered that the applicant had given untruthful evidence. Specifically it concluded that:
a)the applicant’s evidence that he had continued to live at his usual address with his family and conduct his business up until he came to Australia was not consistent with his claims that he and his family were persecuted or feared harm from rival political group members;[13]
b)the applicant’s claim that he was attacked by a paramilitary group in April 2009 was inconsistent with his decision to stay in Sri Lanka for one month after that attack, despite already having been granted a visa and having obtained a passport;[14]
c)his claim that he feared harm from the authorities was inconsistent with his evidence that he approached the authorities and applied for, and was granted, his passport and visa during a period of time that he claimed to have been of interest to TID;[15] and
d)the Tribunal found that the documents produced by the applicant in support of his claims were not reliable evidence of the facts in them given the inconsistencies arising on the face of those documents. The Tribunal also took into account the fact of widespread document fraud in Sri Lanka.[16]
[13] CB at 165 at [57].
[14] CB at 166 at [57].
[15] CB at 167 at [60].
[16] CB at 167 at [61].
In view of the factual findings it made, the Tribunal did not accept that the applicant was a person to whom Australia had protection obligations.[17]
[17] CB at 168 at [62]-[63].
The present application
These proceedings began with a show cause application filed on 28 June 2010. The hearing of the application was somewhat delayed due to the applicant’s solicitor’s illness, and his written submissions, when filed, took a somewhat different path than the grounds in the application. There were four grounds in the application, but only the first ground was pressed, with detailed particulars being provided. I gave leave for an amended application to be filed, which occurred on 18 November 2010. The grounds in the amended application are:
1. The Tribunal committed jurisdictional error by failing to disclose, as required by s.424A(1), information that was part of the reason for affirming the decision under review, in the manner required by s.424A(1)(a), (b), (c) and s.424A(2):
Particulars
I. The Tribunal did not inform the applicant of the information that “if the applicant had the very serious difficulties in his country in April 2009 that he describes in his statement he would not have stayed in Sri Lanka for a month”. This information was given to the Department in the applicant’s application for protection visa. The information was a reason or part o[f] the reason for the decision to affirm the decision under review (P166 of the CB Para 59). No written advice of this information or the way in which it may be relevant to the review was provided to the applicant.
II. The Tribunal did not inform the applicant of the information that “The Tribunal does not accept as true that the applicant paid money to the TID as he claims; he has provided different accounts about when he paid the very large amount of money (1m rupees) to the TID. In his statement he places this payment five days after his interrogation by the TID in the latter part of April 2009, that is before he applied for his visa; he initially told the Tribunal at the hearing that he paid the 1 million rupees before he applied for the visa but then said he paid the money to the TID after he got his visa on 29 May 2009 and he then had one month.” The information which is underlined was given to the Department in the applicant’s application for protection visa. The information was a reason or part o[f] the reason for the decision to affirm the decision under review (P166 of the CB Para 59). No written advice of this information or the way in which it may be relevant to the review was provided to the applicant.
III. The Tribunal did not inform the applicant of the information that “He told the Tribunal that he went to the Immigration authorities himself and applied for his new passport about one week before it was issued which was [on] 23 April 2009. In his statement he places the incident with the TID as occurring in latter part of April 2009. (his statement originally stated that this incident occurred in the early part of April 2009 but was amended to the latter part of April 2009 at the interview with the delegate). This information was given to the Department in the applicant’s application for protection visa. The information was a reason or part of the reason for the decision to affirm the decision under review (P167 of the CB Para 60). No written advice of this information or the way in which it may be relevant to the review was provided to the applicant.
IV. The Tribunal did not inform the applicant the information that “In the Tribunal’s view if the applicant’s account of what happened in his country in April 2009 were true he would not have approached Immigration authorities in his country as he did for his travel documents and been granted his passport and visa to leave Sri Lanka”. This information was given to the Department in the applicant’s application for protection visa. The information was a reason or part o[f] the reason for the decision to affirm the decision under review (P167 of the CB Para 60). No written advice of this information or the way in which it may be relevant to the review was provided to the applicant.
V. The Tribunal did not inform the applicant of the information that “In the Tribunal’s view this does not reasonably or truthfully explained why the writer would state that the police and army inquired about the applicant when the applicant was living at an address at which he never lived. This information was given to the Department in the Applicant’s application for protection visa. The information was a reason or part o[f] the reason for the decision to affirm the decision under review (P167 of the CB Para 61). No written advice of this information or the way in which it may be relevant to the review was provided to the applicant.
Alternatively the [T]ribunal breached the obligation of [s.]424AA(b)(i)(iii) by only partly disclosing relevant information to the applicant during the hearing.
2. The Refugee Review Tribunal committed jurisdictional error of law by failing to comply with ss.424AA or 424A in respect of information stated to be contained in the letters given to the [Tribunal] from witnesses other than the applicant, in a manner required by [s.]424AA(b)(i)(iii).
Particulars
The Tribunal’s part of the reasoning of the decision is: in relation to the Grama Niladari’s letter is that “In the Tribunal’s view this does not reasonably or truthfully explain why the applicant was living at an address at which he never lived.” (Page 167 CB Para 61)
In relation to Mayor of the City of Matale letter is that “the Tribunal’s view is inconsistent with his claims that he fears he will be harmed from police/authorities if he returns to his country; in his statement describes police involvement in the incident that he claims happened on 24 June 2009 that he describes as “life threatening and traumatic that made me flee the country.” The Tribunal does not accept that the incident the applicant describes as occurring on 24 June 2009.” (Page 167 CB Para 61)
In relation to Islamic Centre’s letter is that “police and army have come to the mosque on several occasions to search for the applicant but does not state when these searches occurred”. (Page 167 CB para 61)
The evidence and submissions
I received as evidence the court book filed on 23 July 2010. I also received as evidence (with the deletion of comment) the affidavit of Edilbert Naveenan Rajadurai, to which is annexed a transcript of the hearing conducted by the Tribunal.
While the applicant concedes that the Tribunal purported to go through a process of oral disclosure at the Tribunal hearing, the applicant contends that the Tribunal breached s.424AA of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to:
a)letters in support of the applicant’s protection visa claims obtained by his wife;
b)information concerning the applicant’s delay in leaving Sri Lanka;
c)inconsistent evidence given by the applicant; and
d)information concerning the address of the applicant’s brother.
The Minister contends that none of the information referred to by the applicant was information which was required to be disclosed pursuant to s.424A, either because it was not “information” for the purposes of s.424A(1) or because it was information excluded from the obligation of disclosure, pursuant to s.424A(3). Accordingly, the Minister submits that there can be no breach of s.424AA.
Consideration
Sections 424A and 424AA provide:
Section 424A
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non disclosable information.
Section 424AA
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Section 424A takes as its subject “information”, being information of the kind referred to in s.424A(1)(a). The meaning of “information” in this context “is related to the existence of evidentiary material or documentation”: SZBYR v Minister for Immigration (2007) 235 ALR 609 at 616 at [18]. If information falls within s.424A(1)(a), then the obligations imposed by s.424A(1) will be enlivened, unless the information in question also falls within one of the excepted categories provided for in sub section (3). Paragraph (a) of sub section (3) thus describes one of four categories of information to which s.424A would otherwise apply, but which, by virtue of those exceptions, is taken not to apply.
I accept the Minister’s contention that the first ground is misconceived and should be rejected.
The Federal Court has settled the law in relation to the construction of s.424A(3)(a).
In VHAP of 2002 v Minister for Immigration (2004) 80 ALD 559 at [14] Gyles and Conti JJ, in dealing with an argument that s.424A(3)(a) should be construed as contended for by the applicant in this case, held:
The reference to the class of persons in s 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it.
In a separate judgment, Allsop J held at [21] that the construction favoured by Gyles and Conti JJ was “clearly correct”.
In Minister for Immigration v NAMW (2004) 140 FCR 572 at [67]-[71], Beaumont J held:
In VHAP, Gyles and Conti JJ observed (at [12]) that there (as here) the information which (but for the limitation in subs (3)(a) reserved by subs (1)) would otherwise fall within subs (1), did not “expressly” refer to, and was not “expressly about”, the first respondent (or any other relevant person). In other words, the information is not “specifically” about the first respondent unless it is regarded as being about every person who may fall into a class which is the subject of the information. Yet subs (3)(a) excludes information that is not “specifically” about the first respondent. Nor, for reasons given by Gyles and Conti JJ cited above, does the statement “and is just about a class of persons” provide another criterion (which would pick up general information) to be met, if s 3(a) is to be satisfied. As their Honours said (at [14]), this is “designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it” (my emphasis).
It is true that in subs (3)(a) the word “and” is interposed between “that is not specifically about the applicant or another person” and “is just about a class of persons of which the applicant or other person is a member”. Taken out of context, the insertion of the word “and” could suggest that an additional ingredient is introduced. But one of the dictionary definitions of “and” is “also”. In my view, it is used here in the sense of “even if”.
In my opinion, consistent with the views expressed in VHAP, it is this meaning which is consistent with the present context. Thus one would read subs (3)(a) as follows: “(3)(a) that is not specifically … [even if] just …”.
So construed, subs (3)(a) would have a purposive meaning which would preclude, as parliament must have intended, a possible argument that reference to a class would be taken as a reference to all individuals falling within it.
In summary, I agree with the approach taken by the Full Court in VHAP and with the view expressed by Downes J in VHAJ.
The majority, Merkel and Hely JJ, after undertaking a process of reasoning quoted in part by the applicant (at [26] of the supplementary summary of argument) concluded at [138]:
As is demonstrated by the differences of opinion within the court to which we have referred, s 424A is not incapable of a construction that gives effect to the intention of the legislature. Accordingly, albeit for reasons that differ from those expressed in VHAP and by Beaumont J, we are also of the view that the reference in s 424A(3)(a) to the class of persons is not another criterion to be met but, as is the case with s 57(1)(b), is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant) falling within it: see VHAP at [14]. It follows that the magistrate was in error in failing to find that the relevant country information fell within the exclusion in s 424A(3)(a), and in finding that the RRT failed to comply with s 424A(1).
Subsequent repeated attempts to challenge the correctness of VHAP and NAMW in the Full Federal Court have been rejected: WAJW v Minister for Immigration [2004] FCAFC 330 at [45]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [16]-[31]; and VJAF v Minister for Immigration [2005] FCAFC 178 at [11]-[16]. In QAAC the Full Court concluded at [26] that:
[T]his Court has authoritatively and finally determined the true construction of s 424A(3)(a).
I accept the Minister’s submission that there was no jurisdictional error by the Tribunal in failing to disclose country information relied on by the Tribunal. The position is different under the general law[18] but the general law is ousted by the clear words of s.424(3)(a).
[18] See Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41
The inconsistencies in the evidence provided by applicant to the Tribunal (whether orally or in writing) was not information which required disclosure pursuant to s.424 because of the operation of s.424A(3)(b).
Neither was the evidence given by the applicant to the Tribunal information which was on its face adverse[19].
[19] See SZBYR v Minister for Immigration [2007] HCA 26 at [17]
Prior to the enactment of s.424A(3)(ba) the applicant may have had an argument of error in respect of failure to disclose inconsistencies between information the applicant gave to the Tribunal and written information he gave to the Department in support of his visa application. Section 424A(3)(ba) was enacted specifically to deal with that issue. The provision has the effect that Parliament intended and no issue of error arises since that enactment in relation to non disclosure of information contained in a statutory declaration provided to the Minister’s Department in support of a protection visa application. As to the issue of inconsistencies generally in information provided by an applicant see SZBYR at [19]-[20].
As to the documents apparently provided by the applicant’s wife, these are reproduced at CB 139-147 and are identified by the Tribunal at [26] of its reasons[20] where the Tribunal said:
The applicant appeared before the Tribunal on 29 January 2010 to give evidence and present arguments. The applicant produced his passport issued in Sri Lanka on 23 April 2009 and a copy is placed on the Tribunal file. The applicant also produced to the Tribunal four documents in support of his claims namely, a [document] dated 22 December 2009 described as from the Islamic Centre in Matale, in Sri Lanka certifying that the applicant is a member of the Islamic Centre and that the Police and Army came to the mosque on several occasions in search of the applicant; a document described as from the Central Provincial Council dated 5 January 2010 stating that the applicant was an active supporter of the opposition party and worked very actively for the party, that as his party has lost the elections he is facing death threats and bodily harm and that it is dangerous for him to return to Sri Lanka; a document dated 12 January 2010 described as from the Mayor of Matale stating that the applicant is well known to him, that he is “an active social worker” and that he is facing death threats from rival groups who are against his popularity, that his life is in danger and that “The police has advised him to be careful”; a document dated 10 January 2010 described as from Grama Niladhari stating that the police and army had always enquired about the applicant “regarding various trouble” when he was residing at … .
[20] CB 158
The documents were discussed with the applicant at the Tribunal hearing. The transcript of the Tribunal hearing records the following discussion:[21]
[21] Transcript, pages 33 - 40
M I just want to talk to you a little bit before we finish Mr [Applicant] about these documents that you gave me today. This this first one which is from the described as the mayor of Matala. How did you come to get that document?
[A] My wife got that information and sent it to me. My wife means my wife would have got through it got through some known people.
M She would have what I am sorry I missed that she would have got to
[A] My wife could have obtained it or my wife would have obtained it through either my brother or friends of hers. I know the mayor personally.
M How did you come to know the mayor?
[A] He is he is from my area and he is close to my house. The municipal office is in front of my house.
M This this document here this says .. he he is facing death threats from unknown person from rival groups who are against his popularity and the police and the police has advised him to be careful. What’s they’re referring to there? Is that the political threats you said you got earlier?
[A] This is from the opposition party but I don’t know … [unclear] … I will know them by face but I don’t know them by name.
M But you told me earlier that’s not the [main] reason that you fear to go back there you said the main reason was because of the army and the police you said that the police has advised you to be careful because of these death threats from these unknown persons. So I don’t quite understand what these threats are about.
[A] Police have advised the mayor because the mayor is known to them. And that’s why they had told him that I should be careful about my life threats to my life from political parties.
M [Unclear]. Why would the mayor say that you are an active social worker? What does he mean by that?
[A] The mayor is also a member of the United National Party. So I have actually helped him.
[A] The mayor is sorry from the Sri Lankan Freedom Party but I have helped him his elections and that’s what I think he means by social assistance to him and social worker.
M Just just these document dated the twelfth of January two thousand and ten. And it give you address as …, Matala. So your family was still there on the twelfth of January.
[A] The mayor would have given the address because that’s the address, the official address, but the mayor might not have known whether she was there or whether she was at [unclear] at that time.
M But according to your evidence you probably still were there because two weeks ago she was still there aren’t you?
[A] Ya two weeks ago she would have been there.
M How did your family manage to stay there all that time after you left if they are having they are having trouble now, what ..having initially been in the family home and go about the business [unclear] Ah well you know going by the business is incorrect description but I am trying to understand how they managed to get by and stay in their family home. But now they are having trouble.
[A] After I left because I have left the pressure on my family was reduced and therefore they didn’t have much problems. But now because of the [unclear] the election that came about, the president election then it has resumed because they think they can do anything and get away with [unclear]
M Who is they though?
[A] Those who attacked me when I helped in the president those same people
M The Karuna group
[A] Not the Karuna group. Karuna group came in for the terrorist link. This was for the elections I I supported that
M Yes but I thought you said that that sort of threat wasn’t your main threat the main worry you had there.
[A] The threat to me is mainly the LTTE group but the actual attack on me during the elections when I supported the previous person is what is continuing during this election now
M But the elections are over now, are they over now?
[A] Over.
M Did did you get these documents for the purposes of supplying [unclear] at the hearing, this hearing?
[A] Now this was basically I obtained it for today’s hearing and also because some of the people had approached my wife about the various interrogations. So that’s why I asked her to get the letter from the mayor so that she will be covered. She got from the Muslim mosque and the Grama Sevaka
M But which letter which letter, there is no letters here about her. There might be a misunderstanding of what you are saying. They are saying about you – these letters. So did she did she get them so that you would have some evidence for the [T]ribunal because they all seem to be dated very recently?
[A][Unclear] People people who had approached the the mosque leader and the Grama Sevaka and because of these problems I had requested my wife to go to the mayor [to] get a letter to this effect. That’s why the dates are a sort of today. [T]hey are not incidents before. They are dated now because the requests were made now.
M This is saying that the police and army came to the mosque not your political opponents. Presumably that’s about the vehicles the problems you were telling me about before that you were associated with the LTTE. This is saying that the police and army came to the mosque. Why would that arise now?
[A] The police would not have told the correct actual reasons to the mosque. That’s why the LTTE part is not mentioned there.
M I realize that but why would they certainly be going to the mosque in December in two thousand and nine. Also it says several occasions. You know when the police came to the mosque?
[A] I am not sure of the dates, when they went or… I am here so I won’t know. But they had gone there that’s why I wanted a letter to that effect from the mayor.
M Well that letter is not from the mayor, it’s from the secretary of the Islamic Centre. They mayor doesn’t say anything about the visits to the mosque.
[A] Ya, from the Islamic Centre. The letter is not from the mayor it’s from the Islamic Centre.
M That what I am saying to is that you said you wanted the letter from the mayor about that. The letter isn’t from the mayor about that. The letter is from the Islamic Centre.
[A] Ya ya it’s not from the mayor it’s from the Islamic Centre.
M Did your family have any trouble before relatively recently when these present elections were on. Had they had they had any other troubles?
[A] Only the fear was to the elections. There was nothing other than that.
M So if they now the elections are over would that trouble stop that they are having… they had I should say?
[A] I am not there so I can’t tell exactly whether there will be or not only my wife will know that – whether there is a problem or the problem will continue or stop.
M Ok. Well what I have to do Mr [Applicant] is consider these documents and see if they are reliable evidence of the facts in them. Ok well I’ll I’ll keep the originals of these documents but the
Adv One is the copy
M Is it?
Adv [unclear]
M I see hang on let me have a look.
Adv The Grama Sevaka
M Did you give that bundle of photocopies?
Adv No [unclear]
M That’s ours.
Adv [unclear] the original and one photocopy.
M The Islamic centre
Adv Yes
M Central Provincial Council.
Adv Ye[s]
M This one.
Adv Ya. That’s one the copy.
M That’s a photocopy.
Adv Photocopy. I have the original in my photocopier.
M Oh you left
Adv I left it.
M Who is that one from, the Grama Niladari’s office? Who is that?
[A] Sort of head of the village, Grama Sevaka – head. Similar to a municipality.
M This document says that you were residing at … . I know that the police and army had always inquired of him regarding various trouble when he was residing at … . But that isn’t any of the addresses you said you lived at when I asked you where you lived?
[A] Can you repeat that number please?
M Number two o three slash one …
[A] My brother had gone and requested a letter and my brother lives at that address not me.
M Well. It causes me to have some doubts about the document.
M Country Information that I have looked at about Sri Lankan says that there is a prevalence of false documents from Sri Lanka. So do you want to say anything about that?
[A] You can you can inquire, ring that phone numbers. You can ring them up and verify the truth of those
M I don’t I don’t intend to ring them up because it’s not possible for me to verify to whom I am calling.
[A] I have sworn on the Koran and therefore I won’t be telling you a lie about this.
App You can inquire the way you would like.
M Mr [Applicant] is it possible to get that original document?
Adv [unclear] I can
M Do you want me to
Adv Actually he told me he gave me all the original this morning. In the train only I noticed there is no original for this particular document. I presume that it is on my computer sorry my
[A] [Copier]
M Sorry my photocopier. But also I have a copy
[A] You brought the original
App With translate.
M With the translation then it should be there [unclear]
App Sinhala translation
Adv [unclear]
M These documents are all in English. Would they be written in English in the original?
Adv [unclear]
M Pardon?
Adv The one page is a translation. That one.
M This one.
Adv This is a translation.
M But the other documents were written in English
Adv Originally in English.
M So those are the[e] original?
Adv These three, these are originals
M Ok.
Adv And that one also he gave the original [unclear]. It should be there.
M And I will keep those.
Adv Ya… [unclear] except the copy of the
M Would you want me … I now have the cop of the copy.
Adv [unclear]
M So do you want me to
Adv Copy of the Grama Sevaka [unclear]
M So do you want me to give that copy back?
Adv Ya.
M Then you ca[n] send that one the one you have got in.
Adv The original.
M I don’t want to don’t want to ask anything else today, Mr [Applicant]. I want to consider everything you have said. If I have.. I will allow your advisor a little bit of time to send me in the other document. So I can have a look at it. But is there anything else you would like to tell me that I haven’t asked you about?
[A] I had not any further questions. But I would like to repeat that I might hav[e] slightly confused you on that dates. Because I was not in proper state of mind I am I am fully confused about the whole affair whole period after I arrived here slowly getting back to normal. I want you to please take those into considerations about my interview today. This is the first time I had left my family and come out. So that was also working on my mind. I have attempted to I have attempted to say that was truthful.
M Ok is there anything that you would like to Mr Advisor…..?
Adv [T]he firstly I start from this country information you mentioned about the prevalence of false documents in Sri Lanka. We agree. That s very common in Sri Lanka. But the client clearly said his documents are genuine and also he requested the [T]ribunal verify his document although the people who prepared these documents clearly they have sometimes problem to clearly indicate his problem according to the situation. They can’t sometimes clearly indicate LTTE or other thing. But the document he gave in my submission is a genuine document.
M Well well it’s difficult to check. Look he has invited me to ring the people but I tried to explain he may not have and… it might not have come clearly out. But I it’s difficult to ring to verify documents by ringing because you can’t verify by ringing. So that’s why the [T]ribunal is not going to …I am not going to do that. I am not going to ring. I am going to consider the documents in the light of all the evidence.
The applicant’s complaint is that the adverse information contained in these documents was not adequately explained to him and that it needed to be explained because the information was not in truth from him, but from his wife. It is apparent from the transcript that, although the applicant’s wife assisted him in obtaining the documents, it was the applicant who relied on them in support of his protection visa claims and it was the applicant who provided them to the Tribunal. It seems to me, in the circumstances, that the documents were “information” given to the Tribunal by the applicant for the purposes of s.424A(3)(b). There may be circumstances in which information is given by a third party to the Tribunal which incidentally passes through an applicant’s hands as a mere conduit but this is not that case.
Information concerning the applicant’s delay in leaving Sri Lanka came from his passport and his oral evidence at the Tribunal hearing. The applicant provided his passport to the Tribunal at that hearing[22]. That was not information requiring disclosure to the applicant because of the operation of s.424A(3)(b).
[22] See the Tribunal’s decision at [54], CB 165
The issue of the applicant’s brother’s address came from one of the documents the applicant submitted. This was discussed at [61] of the Tribunal’s reasons[23] where the Tribunal says:
The Tribunal considered the documents that the applicant produced to the Tribunal in support of his claims. The document dated 10 January 2010 described as from Grama Niladhari refers to enquiries made about the applicant by the Police and Army at an address at which he had not lived according to the evidence he gave to the Tribunal earlier in the hearing. The Tribunal does not consider that the applicant’s explanation for this is reasonable; he said that the address is his brother’s address and the writer of the letter referred to this address because his brother asked for the letter for him. In the Tribunal’s view this does not reasonably or truthfully explain why the writer would state that the Police and Army enquired about the applicant when the applicant was living at an address at which he never lived. The letter dated 12 January 2010 described as from the Mayor of the City of Matale states that the applicant is facing death threats from “unknown persons from rival groups” and police have advised him to be careful which in the Tribunal’s view is inconsistent with his claims that he fears he will be harmed from plice/authorities if he returns to his country; his statement describes police involvement in the incident that he claims happened on 24 June 2009 that he describes as “life threatening and traumatic that made me flee the country…”; the Tribunal does not accept that the incident the applicant describes as occurring on 24 June 2009 occurred. The document dated 22 December 2009 from the Islamic Centre, Matale states that the applicant has been a member of the mosque from 2000 and that the police and army have come to the mosque on several occasions to search for the applicant but does not state when these searches occurred. In addition to these matters, country information available to the Tribunal referred to above, and generally discussed with the applicant at the hearing, indicates that there is widespread document fraud in Sri Lanka. Having regard to the documents, and the country information available about the prevalence of document fraud in Sri Lanka and also the fact that the Tribunal considers that the applicant has given untruthful evidence to the Tribunal about his claims, the Tribunal finds that the documents produced by the applicant in support of his claims are not reliable evidence of the facts in them. The Tribunal does not consider that an attempt by it to verify the documents would assist the applicant, in particular given that country information about document fraud in Sri Lanka refers to the fact that even genuine documents are easy to obtain fraudulently in Sri Lanka.
[23] CB 167
The document referred to by the Tribunal was provided by the applicant in support of his protection visa claims and, accordingly, the information in it did not require disclosure to the applicant pursuant to s.424A. Moreover, the Tribunal’s subjective reasoning process concerning the information in the document (and the other information provided by the applicant) was not “information” for the purpose of s.424A(1)[24].
[24] See SZBYR at [18]
I conclude that none of the information referred to by the applicant in support of the proposition that the Tribunal failed to meet its obligation of disclosure pursuant to either s.424AA or s.424A was information that was required to be disclosed for the purposes of s.424A and hence no issue of a breach of the requirements in s.424AA arises. I reject the grounds of review in the amended application.
I conclude that the Tribunal decision is a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 31 January 2011
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