VAAG v Minister for Immigration
[2004] FMCA 13
•20 January 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VAAG v MINISTER FOR IMMIGRATION | [2004] FMCA 13 |
| MIGRATION – Protection Visa – whether country information relevant material – no jurisdictional error. |
Migration Act 1958
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24
Muin v Refugee Review Tribunal and Others (S36 of 1999) (2002) 190 ALR 601
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAAX v Minister for Immigration and Multicultural Affairs (2002) FCA 263
NABM of 2001 v Minister fore Immigration and Multicultural Affairs (2002) FCA 335
Minister for Aboriginal Affairsv Peko-Wallsend Ltd (1986) 162 CLR 24
VAO v Minister for Immigration & Multicultural Affairs (2002) FCA 161
Chhour v Minister for Immigration and Multicultural Affairs (2001) FCA 911
NAAV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 443
| Applicant: | VAAG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 717 of 2002 |
| Delivered on: | 20 January 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 4 September 2002 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Ms D.A. Siemensma |
| Solicitors for the Applicant: | Ravi James and Associates |
| Counsel for the Respondent: | Mr C.G. Fairfield |
| Solicitors for the Respondent: | Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 717 of 2002
| APPLICANT VAAG OF 2001 |
Applicant
and
| MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this Application the Applicant has relied upon an Amended Application filed 22 March 2002 seeking to review a decision of the Refugee Review Tribunal (the RRT) made on 15 November 2001.
The RRT had affirmed a delegate's decision not to grant a protection visa to the Applicant.
The Applicant was born on 8 February 1976 and is now 27 years of age. He arrived in Australia on 27 June 1996 as the holder of a student visa. The Applicant lodged an Application for a protection visa with the Department of Immigration and Multicultural Affairs on 1 October 1998. The Application was refused on 31 December 1998 and an Application for review was received by the RRT on 21 January 1999. The RRT, as indicated, delivered its decision on 15 November 2001.
An Application was filed in the Federal Court of Australia on 21 December 2001 together with an affidavit in support by the Applicant. Orders were made on 25 January 2002 permitting the Applicant to file and serve an Amended Application which was ultimately filed on 22 March 2002 together with contentions of fact and law relied upon by the Applicant. The Respondent filed contentions of fact and law on 8 April 2002. On 3 July 2002 the Application was transferred by order of the Federal Court to the Federal Magistrates Court. The matter was heard on 4 September 2002. By consent, orders were made on 18 September 2002 permitting the Respondent to file further written submissions and the Applicant a reply. Pursuant to that order, the Respondent filed further contentions of fact and law on 25 September 2002 and otherwise sought the leave of the court to rely upon an affidavit of Tobias Dennis Ignatius Hayes affirmed 25 September 2002 which annexed as an exhibit what purports to be a copy of a typed version of a transcript of the hearing of the RRT held on 17 October 2001. No further submissions have been received by either party and there has not been any request for leave to file and serve further submissions in light of the High Court decision of Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24 (S157).
The main thrust of the submissions made on behalf of the Applicant arose from the High Court decision in the matter of Muin v Refugee Review Tribunal and Others (S36 of 1999) (2002) 190 ALR 601 (Muin).
It is conceded by the Respondent that in Muin the High Court found there was an obligation upon the RRT and delegate of the Respondent respectively to accord procedural fairness to a visa Applicant. It is further submitted, and I accept, that the obligation to procedural fairness "depends on the circumstances of a particular case" (per McHugh J in Muin at [123]).
Since the decision of the High Court in S157,in considering the issue of jurisdictional error, in my view the Court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-
“82.It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-
“…There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].”
I note a further recent decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant:-
“31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.
…
33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):
‘... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as `a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’
…
35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474.”
The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 relevantly states the following:-
“27 The statement that a particular error is a `jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made `within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a `jurisdictional error' and as such it cannot be a valid action or decision.
28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:
`The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'
Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157.”
In the Amended Application the grounds relied upon are as follows:-
“(a) The RRT did not have jurisdiction to make the decision because the decision involved a jurisdictional error being the failure of the RRT to take the following relevant matters amongst others into account in making the decision, being the claims made by the applicant as to why he had a well‑founded fear of persecution.
(i) It was relevant for the Tribunal to consider the claims of the applicant in the backdrop of the 'systematic' and 'discriminatory' conduct engaged by the Sri Lankan authorities over a number of years toward the applicant, members of his family and other members of his ethnicity and such conduct causing threat to his life and liberty, significant physical harassment and ill treatment, significant economic hardship, access to other basic services and denial of a capacity to earn a livelihood and all of them threatened his capacity to subsist with any dignity in the country of his origin.
(ii) The large-scale suffering inflicted by the Sri Lankan authorities, on the entire Tamil population of Jaffna, and particularly the Tamil youth with repeated human rights violations ostensibly against the militants but with civilians as the main target, without any consideration about their well-being intended olely for the purpose of obtaining submission of the Tamil community from its demand for self‑determination, forcing this applicant to flee from Jaffna.
(iii) It was relevant to consider the continued subjugation of the applicant to similar practices in Colombo and interfering in a regular and systematic fashion with the life, liberty and other basic needs, even in the place of relocation.
(iv) It was relevant to have considered the material from several international human rights organisations to form on opinion on the likelihood of the Sri Lankan Security Forces acting logically and in a rational manner in treating suspects of Tamil ethnic origin under the provisions of the emergency laws and Prevention of Terrorism Act.
(b) The RRT did not have jurisdiction to make the decision because the decision involved jurisdictional error because the RRT took into account irrelevant matters in determining the application, by assuming that the applicant lived without difficulties in Colombo and this fact proved that he was not of any interest to the Sri Lankan authorities when the Tribunal itself accepted that the applicant was obliged to establish his bona fides on several occasions after terrorist attacks in Colombo and was then released and these were accompanied by rough treatment. The Tribunal also took into account the Applicant did not seek permanent protection until he had been in Australia for more than two (2) years despite claims by the Applicant that his fears became intensified after identification and location of two (2) of his friends by the Sri Lankan authorities while the Applicant has spent considerable time in Australia.
(c) The RRT did not have jurisdiction to make the decision because the decision involved a jurisdictional error being the failure by the RRT to recognise that the question before it was whether it was satisfied that the Applicant had a well founded fear of persecution and how the Sri Lankan Security authorities were malignant and vindictive and operated against Tamils on the ethnic and political grounds rather than for reasons of order and law.
(d) The RRT did not have jurisdiction to make the decision because the decision involved a jurisdictional error, being a failure of the RRT to inform the Applicant that it would rely substantially on information on reports like Country Assessment April 2001 (U.K Report) or DFAT Report 470/2000 of 7 August 2000 and seeking the Applicant's comment and that it would not rely on the following material concerning the likelihood of Sri Lankan security forces acting logically in situations that Applicant feared that he would face on return to Sri Lanka and which material the various Tribunals had accepted in earlier decisions and which were within the Country Information Files in the library of the Tribunal:
(i) The UNHCR reports and its position on returning Tamil asylum seekers to Sri Lanka;
(ii) The further reports of Asia Watch, particularly further to its report titled 'Halt Repatriation of Sri Lankan Tamils - August 1993;
(iii) OSAR Delegation report 'The Time Is Not Yet Ripe' April 1994;
(iv) Amnesty International Annual Report 2000;
(v) Amnesty International annual Report 2001;
(vi) Amnesty International New Emergency Regulations - erosion of human rights protection;
(vii)Amnesty International - detrimental effect of emergency regulations on human rights - 2 July 2000;
(viii) Amnesty International - Government must investigate paramilitary group violation - July 2001;
(ix) Amnesty International - A human rights agenda for the new Prime Minister - December 2001;
(x) DFAT Cable - O.CL 35475 – 1993;
(xi) DFAT Cable - O.CL35 901 - September 1993;
(xii) UNHCR Report - (LKA - HCR 1175) - October 1993.”
An accurate summary of the key findings of the RRT in relation to the question of whether the Applicant faced a real chance of being persecuted for a convention reason was set out in the Respondent's contentions of fact and law as follows:-
“(a) The applicant was born in Jaffna and had been required to assist the LTTE with some chores until he left for Colombo in 1990 [CB 72.3];
(b) The applicant was not of any interest to the Sri Lankan authorities because he had assisted the LTTE as a young boy [CB 72.2];
(c) The applicant was obliged to establish his bona fides on several occasions after terrorist attacks in Colombo, but was then released [CB 72.4];
(d) The applicant was detained and interrogated in September 1995 for a period of two weeks, during which time he was roughly treated, however, he was released because the authorities were satisfied that he was not connected with the LTTE [CB 73.9];
(e) The waiting for three months after this incident to obtain a passport, then further waiting for a visa and then lodging his protection application until more than two years after arrival in Australia was not indicative of a genuine fear of persecution [CB 73.9-74.2];
(f) The applicant would not have been able to obtain a passport and leave the country without interception if he were believed by the authorities to be connected with the LTTE [CB 74.4];
(g) There is ample opportunity for the authorities to intercept the applicant prior to his departure from the country had he been of interest to them [CB 74.5];
(h) The applicant did not have a well-founded fear of persecution at the time that he left Sri Lanka [CB 74.5];
(i) If the applicant were to be questioned on his return (regarding two men about whom he was questioned in 1995) such questioning would be part of the legitimate activity of the authorities to investigate the activities of the LTTE. He could be accompanied for such questioning by his father and solicitor [CB 74.9];
(j) There was no more than a remote chance that the applicant would on return encounter harm sufficiently serious to amount to persecution [CB 76.2];
(k) Nothing had happened since the departure of the applicant from Sri Lanka to suggest that he would now face a real chance of persecution for Convention reasons [CB 76.4 and 77.1];
(l) Even if stopped for security checks, there was not a real chance that the applicant would be detained for an extended period and encounter serious mistreatment [CB 77.5];
(m) A returnee to Sri Lanka with proper documentation, such as the applicant, would face an insubstantial risk of encountering difficulties as a returning asylum seeker [CB 78.8].”
The Applicant's submissions relied upon what were described as four broad headings where it is claimed the RRT decision had been affected by jurisdictional error. First, it was submitted that there was a failure to take into account relevant considerations. Secondly, that the RRT took into account irrelevant considerations. Thirdly, the RRT applied the wrong test in determining whether there was a well-founded fear of persecution; and fourthly, a failure to accord procedural fairness.
It was submitted the RRT did not take into account the Applicant's claims against the background of what was described as credible and relevant evidence of systematic and detrimental conduct engaged in by the Sri Lankan authorities over a number of years against Tamils and particularly, young Tamils. Reference was made to the documentation referred to earlier in the Amended Application which it is submitted support the Applicant's claim that he has a real fear of serious harm if he were to return to Sri Lanka.
It should be noted that during the course of the hearing an Application to submit the various reports were withdrawn. Instead, the Applicant made a submission that the RRT should have had regard to the material. It was noted that without analysing the material which in the circumstances the court was not prepared to undertake, then at least for the purpose of this Application, the Applicant would be permitted to invite the court to note that there were some reports specifically about Sri Lanka not referred to by the RRT. It was submitted that the material was available to the RRT as it was publicly available information. Whilst the Applicant asserted that the failure to make reference to the material would lead to the conclusion that the RRT had not considered it at all in making its findings of fact, it should be noted the Respondent did not concede that this had occurred but rather that it was material not expressly referred to in the RRT decision. In my view, the most generous approach that could be adopted in relation to the Application would be for the court to note that the material was not relied upon or referred to by the Applicant before the Tribunal.
In relation to the issue of delay in making the Application for a refugee visa, it was submitted that in the present case, there was an explanation for the delay which was not taken into account. Had the RRT taken into account an explanation for the delay, then the issue of delay would have become irrelevant. It was conceded that the issue of delay may be a relevant matter as found in the judgment of Heerey J in the matter of Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 but that in the present case, once the explanation for delay had been given, the issue of delay should have become irrelevant.
The explanation given related to subsequent knowledge which came into the possession of the Applicant concerning friends taken into custody in Sri Lanka in 1998, which was two years after the Applicant had arrived in Australia.
It was submitted that by considering whether or not the Applicant was a member of LTTE, the RRT had applied a test which was too rigid in seeking to determine whether the Applicant had a well-founded fear of persecution.
In support of the claim of a denial of procedural fairness, it was submitted that the RRT had relied upon new information not considered by the primary decision-maker, namely, two reports on Sri Lanka which are referred to in the RRT decision and findings at page 72 and 75 of the court book. The Applicant should have been given an opportunity to comment on these reports, or lead further evidence to contradict the material.
The further aspect of denial of procedural fairness related to the documents referred to earlier in the judgment and set out in the Amended Application. Reliance was placed upon the High Court decision of Muin.
The Respondent was permitted to file further contentions of fact and law after the Applicant had raised in the Amended Application matters which essentially relied upon the High Court decision in Muin.
The Respondent otherwise adopted its earlier contentions of fact and law and submitted that there was no error in the present case, and indeed no jurisdictional error. In the absence of the Applicant or his adviser referring to other country information, it would appear, according to the Respondent's submissions that the Applicant would rely upon some form of constructive knowledge of the information on the part of the RRT. To argue that other readily available information should have been taken into account, or that the RRT took into account material which it had not provided to the Applicant was merely an attempt to re-agitate the merits of the Applicant's case, and did not provide a basis for judicial review. It was submitted that the RRT carefully considered the Applicant's claims and referred to relevant country information from well-recognised sources. The court was referred to a decision of Gyles J in NAAX v Minister for Immigration and Multicultural Affairs (2002) FCA 263 where His Honour stated in paragraph 52 the following:-
“52… There is obviously always a mass of country information available. Much would be taken for granted. Much would be debatable. A selection of that which is relevant to the particular case depends upon the way in which the member views the case. The judgment as to the issues upon which external country information will be relevant is entirely a matter for the Tribunal member. There is no obligation to consider any or any particular country information. Disclosure of particular country information to an applicant is, in essence, to reveal the process of reasoning of the Tribunal.”
A similar reference was made to the decision of Beaumont J in NABM of 2001 v Minister for Immigration and Multicultural Affairs (2002) FCA 335 where the court states at paragraph 78 the following:-
“78 …The nature and extent of "country information" to be taken into account by a Tribunal member in making his or her determination, in the circumstances of the particular case, is generally a matter for the judgment of that Tribunal member…”
It was further submitted that in the alternative, country information referred to by the Applicant does not amount to "relevant material" in the sense referred to by the court in the cases of Yusuf and Craig. Consideration of material can only become "relevant", according to the Respondent's submissions, if the Tribunal is bound to take such material into account. (See Minister for Aboriginal Affairsv Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42 applied by the Full Court in VAO v Minister for Immigration & Multicultural Affairs (2002) FCA 161 at paragraph 17 and see also Chhour v Minister for Immigration and Multicultural Affairs (2001) FCA 911 at paragraph 58 per Weinberg J.)
In considering the matters which followed from the decision of the High Court in Muin, it was submitted and I accept that following that case, it is important to consider the circumstances of each particular Application. It was submitted in the present case that the Applicant had not identified how, it is said that all the country information relied upon by the RRT constituted information adverse to the Applicant.
It was submitted that in the circumstances, the Applicant was accorded a fair hearing and reliance was placed upon the transcript to which reference was made earlier. A number of extracts were referred to in the transcript, particularly the following exchange appears at page 18 where the Applicant's legal representative, Mr James, in making submissions in relation to country information stated that:
“Because the claims and the situation are basically ... I mean, there is no other new development over 12 years.”
And further went on to state:-
“I have familiarity in the nature of the country information which the tribunal would usually rely upon.”
In the present case, it was submitted unlike Muin that the Applicant could not be said to have been misled by the process, when the extract from the transcript suggests that the Applicant's legal representative proceeded on the basis that the RRT would refer to country information other than that before the primary decision-maker. Accordingly, even if it could be claimed that there was evidence before the court that the Applicant was somehow misled, which the Respondent denies, then in any event the RRT did not fail to accord procedural fairness to the Applicant. Furthermore, there is no agreed statement of facts, or other evidence before the court as to how, or if the RRT misled the Applicant, or as to what the Applicant would have done if he had known of the country information upon which the RRT would rely.
It was submitted that there is no obligation on the RRT to confine its assessment to material relied upon by the delegate. In any event, there is no evidence to suggest that the RRT did not take into account material which was before the delegate. Accordingly, it was submitted there has been no failure to accord procedural fairness.
Both parties have made submissions which to a large extent relied upon the Federal Court decision in NAAV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 443 (NAAV) and, as indicated earlier in this judgment, the law now applicable following the High Court decision in Plaintiff S157.
Reasoning
In my view, it is appropriate in applying the relevant authorities to which I have referred to consider the conclusions and the process of the RRT to determine if there has been jurisdictional error. Jurisdictional error may arise where there has been a denial of procedural fairness.
On a proper reading of the Tribunal's reasoning, there is little doubt that the Tribunal took into account the main thrust of the matters raised for and on behalf of the Applicant. In considering the country information, it is not necessary, in my view, for the RRT to specify each and every report on the relevant country. To do so, would place an unnecessary burden on the RRT and have regard to the authorities to which the Respondent refers and which I accept, namely, NAAX and NABM. The failure to specifically refer to a country report which may be relied upon by the RRT would not of itself constitute an error of a kind which will justify jurisdictional review. I am further satisfied in applying the decision of the Full Court of the Federal Court in VAO that any claimed failure to refer to material now sought to be relied upon by the Applicant set out in the list of reports constituting additional country information would not again constitute failure to take into account "relevant material". The Applicant and his representative had ample opportunity during the course of the hearing to present country information of a kind which may assist the Applicant, and I am satisfied that in the circumstances, the attempt to agitate the issue of country information is no more than an attempt to seek to review the merits of the decision and encourage this court to undertake merit review rather than judicial review.
I cannot see any denial of procedural fairness arising from the proceedings. This is not a case of a kind similar to the facts and circumstances in Muin, where it could reasonably be said that the Applicant or his legal advisers could be said to have been misled by the RRT in relation to the extent and nature of its inquiry or information to be relied upon, including country information.
I am further satisfied that on a proper reading of the Tribunal's conclusions, the Tribunal had properly considered all relevant issues in this Application. It is useful to perhaps set out the following extracts which appear at page 76 of the court book and which form part of the "discussion and findings" of the RRT:-
“In summary, and subject to the comments regarding the general situation for Tamils, discussed below, the tribunal finds the applicant was not wanted because he was suspected of connections with the LTTE or was otherwise of any adverse interest to the Sri Lankan authorities when he left his country of nationality. He was not a refugee at that stage because any fears of persecution he harboured were ill-founded. It also finds that nothing has happened since his departure that would lead the tribunal to conclude that he now faces a real chance of persecution for convention reasons. In arriving at those findings the tribunal has also considered the claim that his 1992 residence card casts suspicion on him. That does not accord with his evidence, as the only time he has ever been kept for a prolonged period was when he hosted men from Jaffna and was unrelated to the date his card was issued.
The applicant also claims that Tamils in general are mistreated in Sri Lanka, largely because their race leads to suspicion of LTTE links. Given that the LTTE is a Tamil force, it is unsurprising that Tamils may constitute the majority of people subject to security procedures …”
It is also useful to set out the following extract from the RRT's decision which appear at page 77 of the Court Book:-
“Taking into consideration all of the available evidence, the Tribunal is not satisfied that there is a real chance he could be detained and persecuted in the reasonably foreseeable future. Even if he is stopped for security checks, there is not a real chance he would be detained for an extended period and encounter serious mistreatment. The Tribunal finds that he does not face a real chance of persecution in Sri Lanka on account of his Tamil race) or his or real or imputed political opinions as they relate to the LTTE.
The Applicant claims that he will be questioned when he returns and imputed with dissident political opinions and harassed because he has applied for refugee status. He has no history of dissidence in Sri Lanka and legitimately came to Australia to study. His protection visa application is confidential, he has a passport and he is in a position to voluntarily return …”
Having regard to those extracts of the decision-maker, the RRT was ultimately not satisfied there was a real chance that the Applicant would be persecuted by Sri Lankan authorities for the reasons he described or for any convention reasons in the foreseeable future should he return to Sri Lanka. It is clear to the court that the RRT has properly considered the matter and that there is no evidence of jurisdictional error. I am satisfied that the Applicant had an adequate opportunity to provide material which may have assisted his Application and it was not appropriate for the RRT to recite during the course of the hearing all country information which it may ultimately rely upon in its reasoning. That information formed part of its reasoning after the hearing.
It follows that the Application should be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 20 January 2004
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