SZQFD v Minister for Immigration
[2011] FMCA 598
•4 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQFD v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 598 |
| MIGRATION – Review of decision of Independent Merits Reviewer – persecution – member of a particular social group – where applicant, a Sri Lankan Tamil claimed to have been an active member of the LTTE – whether Reviewer failed to take into account the applicant’s claims to be a student representative of the LTTE – whether there were inadequate translation services – whether Reviewer’s failure to provide evidence subject to Jones v Dunkel inference – whether Reviewer required to provide evidence – whether provision of evidence by Reviewer would further elucidate the matter. |
| Migration Act 1958 (Cth), ss.373, 377 Evidence Act 1995 (Cth), s.60 Administrative Appeals Tribunal Act 1975 (Cth), s.60 |
| Plaintiff M61 2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 Chiorny v Minister for Immigration and Multicultural Affairs (1997) 154 ALR 191 Reg. v. Harvey [1858] 8 Cox CC 99 J.R.S. Forbes, “Justice in Tribunals” (2nd ed. The Federation Press, 2006) |
| Applicant: | SZQFD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | RON WHITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 887 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 27 July 2011 |
| Date of Last Submission: | 27 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Robison |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 887 of 2011
| SZQFD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| RON WHITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Sri Lankan Tamil who fled his homeland for India in 2007 with his family and left the refugee camp in which he was living in Tamil Nadu for Australia in April 2010. He became an offshore entry person/undocumented boat arrival at Christmas Island on 9 May 2010. He attended two interviews conducted by Australian immigration officials, an entry interview on 14 May 2010 and a refugee status assessment interview on 8 August 2010. By undated letter to which was attached a report dated 29 November 2010 the applicant was informed that he was not considered to be a refugee as defined in the 1951 Convention and 1967 Protocol Relating to the Status of Refugees by a status assessment officer of the Department of Immigration & Citizenship. He applied for review of that decision from an Independent Merits Reviewer (“IMR”) who interviewed him on 17 February 2011. On 24 March 2011 the IMR recommended to the Minister that the applicant not be recognised as a person to whom Australia had protection obligations under the Refugees Convention.
Persons in the position of the applicant who have received determinations by an IMR are entitled to judicial review of that decision from this court; Plaintiff M61 2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41.
The applicant’s claim to be a person to whom Australia owed protection obligations rested upon his religion, ethnicity, and imputed political opinion, he being a Hindu Tamil, and his family circumstances prior to departure from Sri Lanka. He had been born in 1993 and lived in K, a town in northern Sri Lanka under the apparent control of the LTTE. Whilst he was at school he was forcibly taken by the LTTE to a camp for “tuition”. He was kept there for a week before his parents were able to have him released. The LTTE came around again later and asked after him. His parents were concerned that he might be taken by the LTTE and made to fight and so his father sold up the shop which he owned, (and which the applicant said had been a target of LTTE coercion) and they were smuggled into India. In India they lived in a camp. In 2009 some members of the Karuna Group, an anti-Tamil organisation allegedly working with the Sri Lankan Government, came to the camp and sought the applicant out. He managed to evade them and his parents sent him to an uncle in Chennai in January 2010.
After the uncle obtained residence in Canada the applicant returned to the camp when arrangements were made for him to travel to Australia.
In his statutory declaration, dated 6 August 2010, [CB 40-44], the applicant said at:
“[19] I believe if I return to Sri Lanka I would face a real chance of serious harm. I am a young Tamil boy who rejected fighting for the LTTE. I am still likely to be targeted as I can face problems from the Sri Lankan Army as I was in an LTTE controlled area. My father’s shop was well known in K. I know that the Karuna Group is still around causing harm to Tamil boys. I have seen on the internet the violence in Tamil areas and the boys being kidnapped.
[20] In India in the camp I faced problems from the Karuna Group. I cannot go back to Sri Lanka alone as I am only 17 and I have no family there who could help me. My parents are not going back to Sri Lanka because they are fearful of serious harm if they return.”
In an affidavit sworn by Elizabeth Warner-Knight dated 22 July 2011 there is exhibited a transcript of the interview held on 8 August 2010 with the assessor. In the course of that interview there was the following conversation between the assessor and the applicant at
[T11-T12]:
“Mr Williams: Okay. All right. Okay, let’s move on. Can you tell me from the beginning everything that happened that made you leave Sri Lanka? Please go ahead.
A: Once LTT forced me when I went to tuition to join their the … They kept me with them for a week, and then my mother was …. And she provided all the school certificates and documents, and my mum was pleading them to leave me because she wanted to send me to school. But again they came to my house many times to take me back so I had to hide myself, then my father decided to move from this place and that’s how we went to India.
Mr Williams: All right. Are there any other reasons why you left Sri Lanka?
A: Yes. My father had a shop in K. It’s a coffee shop and it’s a multi-shop, like my father used to sell kerosene and petrol and other stuff. So these LTT people they use to come and have coffee/tea in my father’s shop and they filled up petrol.
My father’s shop was a well-know shop in K so if we go back then we learn that the LTT control the area, so if we go back then we will face problem, we may face problem by Sri Lankan government. That was another reason.
Mr Williams: All right. Are there any other reasons why you left? No?
A: No, that’s all.
Mr Williams: Okay then, that’s good. Thank you. When the LTT …. First stopped you when did that happen?
A: In 2007.
Mr Williams: 2007, all right. And so when they first stopped you how old were you at the time?
A: 15 years old.
Mr Williams: Had you had any contact with the LTT before that?
A: No, I hadn’t.
Mr Williams: Had any of your friends had contact with LTT?
A: Actually we were in LTT controlled area, but we didn’t have any direct contacts with LTT but others may have, but I don’t know about it.
Mr Williams: Okay. All right. Are you aware that the LTT were defeated middle of last year?
A: Yes, I am.”
At the review interview the applicant was questioned about what had occurred whilst he was living in K. The IMR noted at [CB 123] that the evidence given by the applicant included the following:
“The claimant said he was 18 years old and had been born in K. His parents are living in the refugee camp with his younger 9 year old sister. He said he had an older sister who got married but they do not have contact with her as she had had a love affair and married when she was very young. He said he had schooling up in 2007 when he was in year 10 and he was 14 years and then they moved to India and he went to school in India. He said they moved to India because the LTTE had taken him to join with them once and the second time they had come to his house asking his parents about him. He said the first time his parents had brought his school records and the LTTE had released him and when it happened a second time, his father decided to move to India rather than he be taken.
…
The claimant stated he had been a senior member of the student union in the KH High School. He said the Sri Lankan government had not provided sufficient resources and they protested to the Sri Lankan government about this. He said that they lived in the LTTE area and the LTTE encouraged us to do this and to make posters for such occasions as Martyrs’ Day.
He said this was in 2003 and 2004 until 2007. He said the school was controlled by the LTTE and food and medical items came from the government controlled areas. He said the Department of Education was under the LTTE. He said they had organised a rally and held posters and banners against the government.
He said he can’t remember the exact date but it was around 2006 and 2007. The reviewer put it to him that it seems farfetched for the Sri Lankan government to send people all the way to India the students who were involved in a peaceful demonstration. He said that when he was a young student, he was organising this and they helped the LTTE to celebrate Martyrs’ Day and such activities. The reviewer reiterated that he couldn’t see how the claimant would be of relevance to the government. The claimant said he didn’t know if they were Sri Lankan government or intelligence people.
…
It was put to him that his family had left precisely because they did NOT want to support the LTTE and so it would be illogical for the authorities to now suspect you. He stated that when he was a student activist, the Sri Lankan authorities had taken photos and they may still have those photographs.” [CB 123-125]
In his Findings and Reasons commencing at [CB 133] the IMR accepted that the claimant and his family came from an LTTE area in Sri Lanka and that the claimant was recruited by the LTTE but that after a week his family succeeded in having him released. It accepted that the family departed in 2007 for India. The IMR made the following observations:
“The claimant has also made claims that he was active in his high school in expressing public support for the LTTE and that photographs were taken and he would be know to the authorities.
…
… However, the reviewer finds as significant and determinative that the claimant was only 14 years of age when he left Sri Lanka and that even had he been active in school as he claims he could hardly, given his age, had been a figure of any real significance.
The reviewer finds as implausible, and does not accept, that the Sri Lanka authorities or a paramilitary group would have specifically sought out the claimant in a refugee camp in India and finds that this claim is fabricated in order to augment his claims.The authorities upon his return, even if they were to learn that he had been recruited by the LTTE for a week, would be well aware that many families in LTTE areas were made to provide a child as a recruit. However, what would be significant, and the reviewer finds would be determinative, is that the claimant not only deserted the LTTE but that he and his family fled the country to avoid further involvement with the LTTE. In the light of these circumstances, and particularly his young age at departure from Sri Lanka, the reviewer finds that he would not attract undue attention from the authorities upon his return to Sri Lanka and in the light of this, the reviewer finds that any interrogation he might undergo upon return, would not be such as to amount to serious harm.”
On 19 July 2011 the applicant filed an Amended Application in this court. The grounds of that Amended Application are:
“1. The Second Respondent failed to consider the submission made by or on behalf of the applicant that he was a student representative of the LTTE.
2. The interview conducted by the Second Respondent was procedurally unfair due to the absence of adequate translation services.”
It is common ground that for reasons which cannot be explained the record of the interview between the IMR and the applicant is unavailable. I am satisfied from the affidavits filed on behalf of the respondent that every effort has been made to search for and locate the record without success. The only record of what was said to the IMR was that contained in the decision. On 18 July 2011 the applicant swore an affidavit in the following terms:
“1. At the IMR interview I said the following (in Tamil) or similar “the LTTE recruited 20 representatives from my school to be student representatives for the LTTE”.
2. I was selected as one of the LTTE student representatives.
3. I told the second respondent, using the following words or similar, that “as student representative my duties included chairing meetings, rounding up students to take part in “Hero’s Day” and leading my students in protest against the Army and the government. My role was to inform the students and villagers of LTTE activities.”
4. I believe that the translator at the IMR interview failed to convey that I was a student representative.
5. I believe that the translator indicated that I was merely involved with LTTE activities along with all of the other students at school, which was not the case.
6. The above was translated to me by interpreter 5234 of Translation Aid Interpreting Service (via telephone) before I swore this affidavit. The interpreter was not available to execute his own affidavit in accordance with the rules.”
The applicant also produced an affidavit from Valasubramaniam Vigneswaran dated 25 July 2011:
“1. I am a member of the Tamil community in Sydney and have regular dealings with asylum seekers from Sri Lanka, including the applicant.
2. In late April or early May 2011, I met with the applicant to discuss the decision of the second respondent (“the conversation”).
3. As well as discussing other matters, the conversation including the following or similar (in Tamil):
Me: What happened at the IMR interview?
Applicant: I told the interviewer that I was part of the student union set up by the movement.
Me: What did you tell the interviewer about your involvement in the activities of the movement when you were a student?
Applicant: I said that I was chosen by the movement to represent KH High School. I was a member of a 27 member executive committee of youths for the region. I was the main person at my school and was required to ensure that protests against the government, the student marches, etc were organised according to the requirements of the movement.
I was organising decorations of streets and shops, and gathered students for Martyrs’ Day observations, and was preparing posters for such events. I said that the school and the Department of Education in K were controlled by the movement.
4. In the conversation between the applicant and me, the term “movement” refers to the rebel group, Liberation Tigers of Tamil Eelam (LTTE).”
Apart from the affidavit from Ms Warner-Knight annexing the transcript of the original assessment interview and the affidavits concerning the search for the recording of the IMR hearing the respondent filed no other evidence. In these circumstances the applicant submits:
“9. The Respondents have adduced no evidence of what transpired during the IMR interview, other than the decision of the Second Respondent.
10. The Second Respondent, who presumably made notes during the IMR process, has not put on any evidence of what transpired at the interview.
11. The Court should therefore draw an adverse inference against the respondents in terms of what occurred at the interview and, further, should adopt the unchallenged evidence of the Applicant.
12. Such an inference is appropriate where it would be reasonable to expect evidence from the respondents; Jones v Dunkell (1959) 101 CLR 298.
13. In circumstances where the audio is lost and cannot be transcribed, it would be reasonable to expect the Respondents, who are model litigants, to attempt to adduce some sworn evidence of procedural matters.”
He also submits:
“15. Inadequate translation attracts judicial review where a party was unable to take part in the proceedings as a result of same.” [authorities cited]
He submitted that the findings as to the extent of the applicant’s involvement with the LTTE were crucial to the second respondent’s decision and accordingly jurisdictional error is made out. The applicant, through his counsel, concludes in his written submissions:
“16. The factual basis of the Amended Application is clearly supported by the Affidavit and the relief sought (as detailed in the original Application) should be granted (with costs) on the basis that:
a. The Applicant’s evidence cannot be challenged and establishes the errors alleged,
b. An adverse inference should be drawn against the Second Respondent,
c. The First Respondent should not be permitted to act in accordance with the recommendation of the Second Respondent.”
The importance of the applicant’s statements to the IMR about his association with the LTTE is that it is now understood by those advising applicants in these circumstances that the IMRs will be strongly influenced by the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (5 July 2010 HRC/EG/SLK/10/03). Those guidelines suggest that in the light of recent circumstances in Sri Lanka there is no longer a generic concern for the safety of young male Tamils from the north of the country. However:
“In the light of the foregoing, persons suspected of having links with the LTTE may be at risk on the grounds of membership of a particular social group.”
The gravamen of the applicant’s affidavit evidence was that he had made it clear to the IMR that he could be perceived as having had these links.
The applicant was cross-examined upon his affidavit, the relevant parts of that cross-examination and the re-examination of the applicant are set out below:
“MR MARKUS: I was asking whether you recall having been interviewed on three separate occasions.
THE INTERPRETER: Yes.
MR MARKUS: And does it accord with your recollection that your first interview took place in May 2010 shortly after your arrival in Australia?
THE WITNESS: Yes.
THE INTERPRETER: Yes.
MR MARKUS: And you then requested an assessment whether you are a refugee.
THE WITNESS: Yes.
THE INTERPRETER: Yes.
MR MARKUS: And you had an interview with the person who conducted the initial assessment in August, 2010.
THE INTERPRETER: Not clearly I can remember, but somebody interviewed me.
MR MARKUS: Around that time?
THE INTERPRETER: Yes.
MR MARKUS: And you were originally assessed by that person as not being a refugee.
THE INTERPRETER: Yes.
MR MARKUS: And then you sought review of that by an independent merits reviewer.
THE INTERPRETER: Yes.
MR MARKUS: And that person interviewed you again on – I’m sorry, I will withdraw that. That person interviewed you on
17 February, 2011 this year.THE WITNESS: Yes.
…
MR MARKUS: Thank you. The affidavit that you prepared relates to this third interview, does it not?
THE INTERPRETER: Yes.
MR MARKUS: And in substance you tried to reproduce what you’ve thought during that interview in relation to your involvement in the student union in the K Hindu High School, is that right?
THE INTERPRETER: Yes.
MR MARKUS: And you’re not suggesting that what you say in your affidavit is exactly the words you used during the interview, do you?
THE INTERPRETER: Yes.
MR MARKUS: Well, it is, you suggest, in the nature of the evidence that you gave to the independent merits review?
THE INTERPRETER: Yes.
MR MARKUS: And is it correct that you told the independent merits reviewer that you have been a senior member of the student union in your high school?
THE INTERPRETER: Yes.
…
MR MARKUS: And did you tell the reviewer that you lived in an area which was controlled by the LTTE?
THE INTERPRETER: Yes.
MR MARKUS: And did you also tell the independent merits reviewer that the Department of Education was under the control of the LTTE in your area?
THE INTERPRETER: Yes.
MR MARKUS: And did you tell the independent merits reviewer that the LTTE encouraged you and other students to protest against the Sri Lankan Government?
THE INTERPRETER: Yes.
MR MARKUS: And in particular, did you tell the reviewer that you protested because the Sri Lankan Government had not provided sufficient resources to your school?
THE INTERPRETER: Yes.
MR MARKUS: And did you tell the reviewer that food and medical items came from government controlled areas?
THE INTERPRETER: Yes.
MR MARKUS: And did you tell the reviewer that the LTTE encouraged you to protest and make posters for certain occasions such as Martyrs Day?
THE INTERPRETER: Yes.
MR MARKUS: And that you organised or you have organised a rally and have posters and banners against the government?
THE INTERPRETER: Yes.
MR MARKUS: And you told him that whilst you didn’t remember the exact date this was around 2006, 2007?
THE INTERPRETER: Yes.
MR MARKUS: And you also indicated or informed the reviewer that you were a student representative from around 2003, 2004 until 2007?
THE INTERPRETER: Yes.
MR MARKUS: Now, Mr Applicant, do you recall anything specific, anything else specific that you told the reviewer?
THE INTERPRETER: No, nothing else.
MR MARKUS: No further questions.
HIS HONOUR: Thank you, Mr Markus. Yes, Mr Robinson, any re-examination?
MR ROBISON: Just briefly, your Honour.
MR ROBISON: In your evidence-in-chief, you told me that you swore an affidavit, is that right?
THE INTERPRETER: He didn’t understand. Can you repeat please?
MR ROBISON: Do you agree that I asked you whether you swore an affidavit?
THE INTERPRETER: Yes.
MR ROBISON: And the final question asked by my friend was whether there was anything else that you told the interviewer.
…
HIS HONOUR: Your questions were very plain as were
Mr Markus’s. Can you please answer the question? The question was you were asked if you told the IMR anything else.THE INTERPRETER: No, nothing else.
…
MR ROBISON: That’s all, your Honour.
HIS HONOUR: Thank you. All right. I’ll ask him one question.
Mr Applicant, when the questions that were being asked of you by Mr Markus were being asked, did you fully understand the interpreter?
THE INTERPRETER: Yes, he understood.
HIS HONOUR: Good. Thank you. No more questions? Mr Markus?
MR MARKUS: No, your Honour.”
There was considerable argument about the admissibility of the second affidavit from Mr Vigneswaran. On the face of the document it is pure hearsay. It could only be admitted as evidence of what the applicant told the deponent and not of what the applicant told the IMR. At the end of the respondent’s submissions reference was made to the extract from the transcript of the assessment interview. The applicant argued that constituted a prior inconsistent statement so, by virtue of s.60 of the Evidence Act1995 (Cth), the whole of the conversation between the applicant and the deponent of the second affidavit was admissible as proof of the truth of the statement. I take from this that the applicant accepts that he made no mention of these matters to the assessor and that this fact, being known to the IMR, may have had some influence upon him in his assessment of the applicant’s claims. I am prepared to admit the affidavit for the purposes of establishing the truth of the applicant’s evidence of what he told the IMR. But it will be weighed against the responses of the applicant in his cross-examination and re-examination and against the fact he did not mention these things to the assessor.
I am of the view that the cross-examination of the applicant before me clearly establishes that the IMR understood and recorded what had been said to him about the applicant’s involvement with the LTTE. The decision record of an IMR is not intended to be a transcript of the interview, it is a paraphrase of the most important aspects and as with a tribunal there is no requirement upon an IMR to recite all the evidence given to him: SZKPH v Minister for Immigration and Citizenship [2008] FCA 707 per Flick J at [18]; SZEHN v Minister for Immigration [2005] FCA 1389 at [58] per Lindgren J; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at [593]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14].
I am of the view that the activities of the applicant, whilst at school, as recited in his affidavit and in the affidavit of Mr Vigneswaran, is consistent with the record of the IMR found at [CB 124] and extracted in these reasons at [6]. Is there any real difference between:
“As the LTTE recruited twenty representatives from my school to be student representatives of the LTTE, as a student representative my duties included chairing meetings, rounding up students to take part in hero’s day and leading students in protest against the army and the government and my role was to inform students and villages of LTTE activities”
And the references in the extracted paragraph to his organising demonstrations and activities? I do not accept the applicant’s submission that when the IMR used the words “he said they had organised a rally and held posters and banners against the government” this excluded the applicant as an organiser. I am also of the view that the failure of the applicant to make any reference to these matters in his initial interview is relevant in considering the truth of the statement set out in the affidavit of Mr Vigneswaran. Without explanation of the omission in the original interview I would not be prepared to give the purported statement disclosed in the affidavit any weight.
I have come to the conclusion that the IMR understood and accurately recorded the information given to him by the applicant and made a decision based upon that information and the independent country information available to him. The applicant agreed with Mr Markus that he had said to the IMR those things reported by the IMR. This negates any allegations of mistranslation so whilst I accept what fell from
Kenny J in Perera v Minister for Immigration [1999] 92 FCR 6 at [24]:"The right to a hearing is a vain thing if the applicant is not understood.”
I am quite satisfied that the applicant was understood. He has certainly not been able to provide any evidence of inadequate translation as is required: SZGSI v Minister for Immigration and Citizenship [2009] FCA 200 per McKerracher J at [28], SZJZSv Minister for Immigration andCitizenship [2008] FCA 789 per Flick J at [32-33]. I am also satisfied that there was no additional claim made to the IMR about the applicant’s involvement with the LTTE that the IMR did not consider and take into account. I am not satisfied that the Tribunal fell into jurisdictional error in either manner suggested by the applicant in this case.
I deal with the question of the Jones v Dunkel (1959) 101 CLR 298 inference as an afterword. There is obviously some force in the applicant’s argument that the government have chosen not to include the IMRs within a Tribunal. It has insisted upon their independence and emphasised their distance from the Migration Act 1958 (Cth) (the ‘Act’). In those circumstances, he argues, their quasi judicial protection from being called to give evidence about their decisions should also be lost.
In Jones v Dunkel the issue raised was whether a trial judge had erred in the giving of his directions to jury in regards the failure of counsel to call the defendant as a witness and the inferences that could be drawn from that omission. After accepting that it was correct for the judge to inform the jury that without contradiction the evidence given was easier to accept and that the failure to call the witness did not constitute a gap in evidence, Kitto J succinctly opined (at [308]):
“But what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.”
Windeyer J in approaching the matter turned to literary jurisprudence opining (at [320-321]):
“Then, I think, his Honour should, when the juryman asked his question, have given an answer in accord with the general principles as stated in Wigmore on Evidence 3rd ed. (1940) vol. 2, s. 285, p. 162 as follows: "The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted."
In support of this his Honour provided the authority of R v. Burdett (1820) 4 B. & Ald. 95 [106 E.R. 873] (at [321]) from which he cited as follows:
“Abbott C.J. said: “No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected.””
And continued:
“As Wigmore points out (Evidence 3rd ed. (1940) vol. 2, ss. 289,290, pp. 171-180), exactly the same principles apply when a party, who is capable of testifying, fails to give evidence as in a case where any other available witness is not called. Unless a party's failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case. These considerations have been discussed or applied in the following among other cases in Australian Courts: Morgan v. Babcock &; Wilcox Ltd., per Isaacs J.; Insurance Commissioner v. Joyce; per Rich J. and per Dixon J.; May v. O'Sullivan ; Black v. Tung; Waddell v. Ware and Ex parte Jones; Re Macreadie. Clearly, it is not necessary that any particular form of words be used in explaining all this to a jury. Every case is different; and standardised directions are not necessary.”
Windeyer J thus makes it clear, at least in relation to jury directions, that no set rule is established and, more generally, that certain circumstances need be met for the negative inferences to be made. It is evident that the requirement to contradict is only necessitated where the case against such a contradiction has been made out and that another explanation for the failure to call the witness may be made in order to counteract the negative inference.
Indeed, in Payne v Parker [1976] 1 NSWLR 191, Glass JA summarised the conditions applicable to Jones v Dunkel as follows (at [201]):
“Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.”
This approach was supported in Australian Securities and Investments Commission v Fortescue Metals Group Ltd & Anor (No 5) (2009) 264 ALR 201 at [225-226], which, although overturned on appeal on other grounds (see Australian Securities and Investments Commission v Fortescue Metals Group Ltd & Anor (2011) 274 ALR 741 at [79-80]), was endorsed by the High Court in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 (Kuhl).
In apparent relation to the third condition cited above, in Muin v Refugee Review Tribunal & Ors (S36 of 1999) (2002) 190 ALR 601 (Muin), where the person in question was a member of the Refugee Review Tribunal, it was held that as members of the Tribunal enjoyed the same immunities as justices of the High Court, they could not be expected to appear as witnesses and inferences could not be drawn from their failure to give evidence (see Muin at [118] per McHugh J, at [196-199] per Kirby J and per Callinan J at [299-300]).
Therefore, in applying Jones v Dunkel to the instant case, the following questions relevantly arise; did the independent Merits Reviewer benefit from the same immunities as Tribunal members and Justices of the High Court, thus excusing them from appearing and disallowing negative inferences? And would the potential evidence of the Reviewer elucidate the matter in question? The first condition is not contentious here.
The authorities suggest that the immunity to give evidence is exceptional. Justices of the High Court certainly may rely on the immunity.
Members of the Immigration Review Tribunal and of the Refugee Review Tribunal enjoy the same immunities as justices of the High Court. This immunity is statutory (see s.373(1) of the Act and s.60(1) of the Administrative Appeals Tribunal Act 1975) and has been found to extend to being able to refuse to give evidence: Chiorny v Minister for Immigration and Multicultural Affairs (1997) 154 ALR 191; Muin.In Chiorny Olney J considered whether or not the immunity should so extend and found that the policy considerations of s.377 of the Act outweighed the need for transparency. In Muin the High Court also found that the immunity enjoyed by members of the tribunals extended to giving evidence, such that no inference could be drawn from a failure to give evidence (Gleeson J at [25], McHugh J at [118], Kirby J at
[196]-[199] and Callinan J at [299]-[300]. All of their Honours based their judgments on statutory interpretation, however, some insight can be drawn from their judgments as to the possible extension of the rule.Kirby J, in particular, was generous in his appreciation of the immunity. He noted that the immunity in question as it applied to justices of the High Court was drawn from English common law by which judges of supreme courts of record were not compellable to give evidence in regards matters in which they had been engaged (at [197]). This position reflects the judgment of Byles J in Reg. v. Harvey [1858] 8 Cox CC 99 in which he opined (at [103]),
“… [T]hat the judges of the superior courts ought not, of course, to be called upon to produce their notes. If he were subpoenaed for such a purpose he should certainly refuse to appear. But the same objection was not applicable to the judges of the inferior courts.”
This passage has been relied on by jurisprudes to suggest that the immunity is a restricted one: J.R.S. Forbes, “Justice in Tribunals”
(2nd ed. The Federation Press, 2006) p.268, and Derek William Elliott, Sidney Lovell Phipson, “Elliott and Phipson Manual of the Law of Evidence” (12th ed. Sweet and Maxwell Ltd. 1987) p.143. This suggests that the immunity enjoyed by the High Court is not necessarily to be enjoyed by judges of lower courts, and, at the very least, that the immunity is limited. This would suggest that IMRs, consistent with the applicant’s argument, would not benefit from such immunity and could be called as witnesses.Kirby J did, however, helpfully expand his reasoning in Muin and opined (at [197]-[198]),
“Further, it would be demeaning to the office of the tribunal member and potentially damaging to the independence of the tribunal, if members were effectively obliged to offer testimony in proceedings such as the present for fear that, if they did not, they would be subject to criticism and to inferences adverse to their probity and compliance with the law.
I would refrain from expressing any more general principle on this issue than the foregoing. Each case depends upon its own facts and the legislation under which the decision-maker in question operates.”
And (at [199]) stated,
“… there are sound reasons of legal principle to justify the absence of evidence from tribunal members, it would be erroneous for this court to draw any adverse inference from their omission to proffer such evidence in these cases.”
Similar reasoning could be applied to IMRs, such that their independence would be jeopardised if their judgment was hindered by the prospect of giving testimony in future judicial proceedings.
Another analogous situation which may shed light on the instant case is that of commercial arbitrators who have also been held to enjoy some level of immunity in regards being called to give evidence: Buccleuch (Duke) v Metropolitan Board of Works (1872) LT 5 HL 418 at 433.
On this point, Halsbury’s Laws of England (5th ed., Civil Procedure, [20-971]) states that:“An arbitrator may be called to give evidence of fact in proceedings concerning an award made by him, but his evidence is not admissible to explain, aid or contradict his award.”
Indeed in the Victorian case of Stannard v Sperway Constructions Pty Ltd [1990] VR 673, an arbitrator who was made a party to proceedings, did not give evidence. Brookings J, in refusing to remove the arbitrator, indicated a preference that arbitrators merely be made aware of proceedings and not be made parties (at [682]). He also stated that this observation was made “not because [he found] anything to criticise in what was done in the present case”.
Finally, it has been suggested that when considering Jones v Dunkel Ministers should also be treated differently from other witnesses: Singh v Minister for Immigration (2001) 109 FCR 152; 194 ALR 599; [2001] FCA 389. In that case, Justice Sackville opined:
“I should add that some observations in Minister v Jia suggest that the principle in Jones v Dunkel may not apply to Ministers whose personal decisions are challenged in judicial review proceedings in the same way as it does to other litigants who choose not to give evidence: see at [143], per Kirby J; at [284], per Callinan J.”
Kirby J’s opinion in Minister for Immigration and Multicultural Affairs v Jia (P43 of 2000) (2001) 205 CLR 507 is certainly enlightening for present purposes, he stated at ([143]-[144]):
“… I would not attach a great deal of significance to (or draw adverse inferences in these cases from) the failure of the minister to give oral evidence or to submit himself to cross-examination. Although ministers, while holding office, are not immune in this country from giving evidence before courts, a court would not ordinarily hasten to draw an inference that the minister had deliberately refrained from giving oral evidence because of a concern that the impugned decision would be revealed as affected by bias or that the minister would be forced to make concessions damaging to the minister's case. Ministers have to perform highly complex and onerous functions. They carry heavy burdens that severely limit the time available for them to give evidence in individual cases. In Mr Jia's case, the minister might have considered it sufficient to rely on the record as, in the opinion of the majority of this court, it is held to be. Applying the test of whether the parties, or the public, might entertain a reasonable apprehension that the minister might have been biased, I do not believe that the principle expressed in Jones v Dunkel, that an adverse inference may sometimes be drawn from a failure to give evidence, should loom large in evaluating appearances in the applications brought to this court by Mr Jia and Mr White.”
Although informative, this is perhaps not conclusive in the present circumstances. Clearly the role of a Minister is far broader and more onerous than that of an IMR acting on behalf of the Minister, and, even in the case of the Minister, Kirby J was hesitant to provide a general immunity to being called to give evidence. Yet the unwillingness to apply a Jones v Dunkel inference is clear.
In regards the instant case, it may be that the Independent Merits Reviewer is more analogous to an arbitrator and could be called to give evidence of fact about the interview, but not to give evidence of his conclusions on those matters. As such, he could be called to give evidence of what was said at the interview.
However, application of the Jones v Dunkel principle is limited also by the second condition in Payne, that the evidence to be called would elucidate a particular matter. In the instant case it is doubtful that any elucidation would occur. It is the applicant’s submission that the Reviewer’s reasons expose a misunderstanding of the applicant’s involvement with the LTTE: that the applicant was a “student representative” of the LTTE and not involved only on the level of all the other students. It is argued that this resulted either from a deficiency in translation or from a failure on the reviewer’s part to take into account the statements made by the applicant to this effect (see [9] of these reasons).
However, from the decision record at [CB 124-125], extracted above at [6] of these reasons, it appears that the reviewer did understand that the applicant was claiming to be intimately involved in student activism for the LTTE on a higher level than most students. Likewise, the decision record at [CB [133]], extracted above at [7] of these reasons, demonstrates that the Reviewer did consider the applicant’s role with the LTTE, including his claims to be an activist in an organisational role, but disbelieved those claims or that his role was important enough to attract the attention of the authorities.
In this sense the case is analogous to that of Singh, where the Minister did not give evidence and a similar negative inference was sought.
In that case it was claimed that the Minister did not consider certain evidence, however, Sackville J, in denying to draw the inference sought, opined (at [71]):
“…[I]n my view, the rule of evidence in Jones v Dunkel does not assist the applicant. Assuming that rule to apply in the present case, the unexplained failure of the Minister to give evidence does not provide positive evidence that he did not have regard to the character references, but leaves the Court in a position where opposing inferences can be drawn more confidently because they are not contradicted by the person who has knowledge of the relevant events. The reasons of the Minister are in evidence. As I have explained, the evidence suggests that the Minister did have regard to the character references. In short, the inferences that the applicant seeks to draw have been contradicted by the Minister's statement of reasons.”
Likewise, contrary to the submissions of the applicant, the decision of the Reviewer deals with the Independent Merits Review interview and does so in a manner to suggest that the reviewer understood that the applicant was claiming to be involved at a higher level than that of other students. Thus, even if evidence were permissible under condition (c) of Payne, it would not elucidate the matter for the court any further than the IMR decision does. Hence, the inference sought is an impermissible one.
In sum, I am not satisfied that the applicant has demonstrated jurisdictional error on the part of the IMR in this case. The application shall be dismissed. The Applicant must pay the First Respondent’s costs assessed in the sum of $6,240.00.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 4 August 2011
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