VMAJ v Minister for Immigration - [2004] FMCA 82

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VMAJ & ANOR v MINISTER FOR IMMIGRATION

[2004] FMCA 82

MIGRATION – Application for review of a decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa to the applicant and her son – applicants ethnicity in issue – whether the Tribunal failed to take into consideration the applicants son’s profile and psychological evidence – whether section 424A of the Migration Act was breached – exercise of discretion to refuse relief – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36(2)(a), 359A, 359A(1), 424A, 424A(2), 424A(3), 424A(3)(b), 441A, 475A
Judiciary Act 1903 (Cth), s39B
Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

Al Shamry v Minister for Immigration & Multicultural Affairs (2000) FCA 1679
VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 141
Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) FCAFC 140
Stead v State Government Insurance Commission (1986) 161 CLR 141
Bax v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 55
Thiruhkumar v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 268
Zachinov v John Gibson & Anor (1986) 696 FCA 1
Sudeshi v Minister for Immigration, Local Government and Ethnic Affairs (1993) FCR 515
FGLB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 176

Applicant:

VMAJ & Anors

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 149 of 2003

Delivered on:

12 May 2004

Delivered at:

Melbourne

Hearing date:

2 July 2003

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr Kissane

Solicitors for the Applicant:

Arvindan Solicitors

Counsel for the Respondent:

Ms Riley

Solicitors for the Respondent:

Clayton Utz

ORDERS

THAT the Application be dismissed.
THAT the Applicant pay the Respondent’s costs fixed in the sum of $5,835.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ149 of 2003

VMAJ & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) and s.475A of the amended Part 8 of the Migration Act 1958 (Cth) ("the Act") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of the delegate of the respondent not to grant the applicant a protection visa. The application was commenced in the Federal Court and transferred by consent to the Federal Magistrates Court on 14 February 2003.

Background

The first applicant was born in 1960 and the second applicant is her child who was born in 1983. The applicants arrived in Australia on

19 February 2002 on Indian passports that they claimed were false. They claimed to be citizens of Sri Lanka. The application for protection visa was made on 30 April 2002. On 3 July 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant a protection visa and on 12 July 2002 the applicants sought a review of that decision. On 29 November 2002 the Tribunal affirmed the decision of the Minister's delegate.

The applicant's claims

Only the first named applicant made specific claims under the Refugees Convention and will be referred to as the applicant. In a statement lodged with her initial application the applicant claimed:
a)She was born in Sangarathai Navaly in Jaffna Peninsula where she lived until 1971. She then moved with her mother to Chavakachceri and again moved with her mother in 1976 to Kilinochi.
b)In 1978 the applicant married a man from Kilinochi who was active in politics on behalf of the Tamil United Liberation Front (TULF) and who attended meetings and protests.
c)Following her marriage, the applicant started to engage in political activities.
d)In 1981 the applicant's husband contested the local elections and was elected as a member of the village council as a TULF candidate. The applicant became a member of the party's women's wing and increased her political activities.
e)After 1983 militant Tamil groups began targetting TULF moderates and some MPs were killed. The applicant and her husband were involved in organising the funerals and subsequent commemorations and addressed those gatherings.
f)The applicant openly denounced the LTTE, a militant organisation. The LTTE commandeered her tractor and started creating problems for them and the harassment continued until the arrival of the IPKF.
g)Tamil groups started working with the IPKF and started to target the LTTE. They approached the applicant and her husband pressured them to identify LTTE operatives.
h)In June 1989 Tamils were arrested in a search operation. The applicant and her husband were pressured to publicly identify LTTE members.
i)In October 1989 the applicant and her husband decided to move to Jaffna and in January 1990 the LTTE took over the area and started to arrest and kill those who cooperated with the ITKF.
j)The applicant and her husband were taken in for questioning at the Kondavil Camp in April 1990. The applicant's husband was severely tortured and the applicant was treated brutally and inhumanely by women cadres of the LTTE and they were detained for six months.
k)On release they were ordered not to leave their residence without permission but they did so due to the bombing of their village by the Sri Lankan Air Force in November 1993 which damaged their home. They moved to the house of the applicant's cousin's uncle in Anaikoddai.
l)In October 1995 the LTTE ordered the whole population to go to Vanni. The applicant reached Kilinochi in December 1995.
m)In July 1996 there was a major military operation against the town and everyone left. The applicant fled to Vannerikulam with her family when the situation in Vanni deteriorated due to the fighting. Her family was assisted by her cousin to construct a semi-permanent shelter at Vannerikulam.
n)In September that house too was damaged and the applicant's son was seriously injured and was hospitalised at the Vallavi Hospital.
o)The applicant decided to flee with her family to India but on the voyage the Sri Lankan Navy began firing and the applicant's other son was injured as was her husband. They decided to abandon the voyage and return to Sri Lanka and went back to Skandapuram.
p)In January 1997 their son had an operation to remove shrapnel.
q)In September 1997 they wanted to start a transport business in Skandapuram. At first the LTTE withheld permission because the applicant was not considered an LTTE supporter but eventually they did receive permission on condition they in return gather intelligence for the LTTE. They started business in November 1997 transporting provisions from Vavuniya and started doing reasonably well. They had to establish some rapport with the armed forces in Vavuniya and became friendly with various security force personnel.
r)They were asked to provide information about the movements of the LTTE and LTTE sentry points to the army.
s)In June 2001 the LTTE forcibly recruited the applicant's son. The first applicant complained and was detained by the LTTE for two days. The LTTE threatened that if she created any further problems and did not cooperate with them her other son would also be recruited.
t)The first applicant realised the difficulties they would be in so she decided to flee to Tamil Nadu in India and the applicant's cousin found a travel agent who organised for photographs to be taken for their departure.
u)In August 2001 the applicant gave to the LTTE information about security forces. In November the LTTE attacked sentry points of the security forces and eleven security force personnel were killed. The applicant was suspected by the army of giving information to the LTTE and she was identified as a spy. She was warned not to come back to Vavuniya. A week later the army attacked an LTTE sentry point killing six and the applicant was suspected of giving information to the army.
v)On 30 November the LTTE sent a note asking the applicant to come to its camp for an inquiry. The applicant realised that she was in danger as business people had been killed on suspicion of giving information to the security forces and at the same time the security forces were also searching for her.
w)The applicant and her son went to a relative's home to discuss the journey to Tamil Nadu and the applicant's husband stayed at home. Whilst she was absent the LTTE cadres came to take her for questioning but took her husband instead.
x)The applicant and her son made plans to leave the country immediately. They went through the jungles to Marichchukaddy and then to Pallimunai. They took the boat to Tamil Nadu on 12 February 2002.
y)In India they contacted the agent who told them he could arrange for them to come to Australia. They were shown passports which were forged and which contained photographs of them but with false names. They left India on 19 February 2002.
z)The applicants travelled on tourist visas which were issued in Mumbai on 18 December 2001 and the applicants travelled with a third party who represented himself as their husband and father.

The delegate's decision

The delegate was not persuaded that the applicant was a Sri Lankan citizen, although the delegate gave the applicant the benefit of the doubt and he considered her claims as though she were a citizen of Sri Lanka. The delegate considered it probable the applicant had left Sri Lanka in 1997 or 1998 and lived in India since then.

Submissions and claims made to the Tribunal

The applicant's adviser lodged a written submission with the Tribunal that reiterated the claims already made. A report from a clinical psychologist was also lodged with the Tribunal. The applicant's adviser claimed that her claims were internally consistent, inherently plausible and consistent with country information and that there was no evidence to contradict her. She was at risk of being detained and tortured simply due to being a Tamil from the north and from her activities in Sri Lanka.
The Tribunal conducted an oral hearing on 18 October 2002. At the hearing the applicant said that when she went to her husband's cousin's house it was not a planning visit but that she was actually leaving at that time. She said her husband said he would join her the next day and she did not know what had happened to him. It was pointed out to the applicant that she had said in her written statement that she had gone to her husband's cousin's place to discuss the journey and the LTTE had gone to her home and taken her husband. The applicant denied having said that. When asked why those claims appeared in her statement the applicant said she must have been confused when she came to Australia.

The Tribunal's decision

The Tribunal noted that it was difficult to get a clear picture from the applicant as her answer's zig-zagged around the questions asked. The Tribunal was not satisfied this resulted from her psychological state or her personality, style of communication or cultural factors. The Tribunal considered that she had trouble filling in the details of her claim because it was untrue.
The Tribunal also considered that the applicants' identities and nationalities were in question. The Tribunal considered that the conclusion that was open was that the applicant was the Indian national named in her passport and the birth certificates produced referred to someone else. This possibility was supported by the account of the agent having possession of the birth certificates and giving them to the Tamil family with whom the applicants lived on their arrival in Australia. The Tribunal considered this account strongly suggested that the birth certificates were fraudulently obtained with the intention of fabricating a Sri Lankan nationality for the applicant.
The Tribunal also considered the possibility that the birth certificates were genuine and the passports were false and the possibility that all the documents were genuine and that the first applicant had been born in Sri Lanka but later acquired Indian citizenship. Ultimately the Tribunal was not satisfied that the applicant was a Sri Lankan national but nevertheless considered her claims on the basis that she was a Sri Lankan national because the matter was not free from doubt.
The Tribunal had some doubt about the location of the applicant's home in Sri Lanka considering her son's birth certificate suggested that she was living near Manna not Kilinochi. However, the Tribunal considered it was fair to deal with the applicant's claims as though the various displacements and relocations she claimed could, prima facie, have occurred and deal with the factual claims on their own merits. The Tribunal found that the applicant was a supporter of non-Tiger Tamil groups but exaggerated her and her husband's political profiles in the 1980s. The Tribunal opined that if she had had an overt profile as someone who opposed the LTTE at that stage she would not have moved even further into Tiger heartland in late 1989 by returning to Jaffna.
The Tribunal accepted that property belonging to the applicant was commandeered by the LTTE but did not accept it was done for Convention reasons.
The Tribunal did not accept that the applicant (or her husband) was detained by the LTTE in 1990. The Tribunal considered that the applicant was unable to give a clear explanation of why this occurred at the time it did. The applicant did not give clear evidence as to what information if any she would have been able to give the IPKF and did not accept that she did give any such information. The Tribunal opined:
Without wishing to attribute too much rationality to the LTTE, there was therefore no basis at all for the detention.
The Tribunal accepted that the applicant was displaced and attempted to travel to India in 1995-6 and that both her sons were injured in this period. However, the Tribunal concluded that those experiences, although distressing and frightening did not contribute to a risk of persecution within the meaning of the Convention.
The Tribunal did not accept that from 1997 onwards the applicant was travelling back and forth from Vanni to Vavuniya in some sort of commercial role. The Tribunal noted that the applicant was unable to describe in any significant detail the arduous process of making this journey at the delegate's interview. The Tribunal noted that at this hearing she gave a very detailed answer which appeared to be accurate but the paucity of the earlier account was inexplicable, leading the Tribunal to conclude that she had informed herself in the intervening period. The Tribunal noted in particular that if she was travelling on back roads and bypassing security checks as she suggested at one point, this would be the explanation for not knowing the legitimate route but would undermine her claims with regard to her relationship with the army and LTTE (ie. that she knew and passed on military information).
The Tribunal opined that in any event even if the applicant had made the journey either by the back roads or the main roads, the Tribunal should not accept that she provided information to the army about the LTTE or vice versa. This is because the Tribunal concluded she would not have had access to any information of any significance, that is important information that the respective forces would not already possess and therefore it was implausible that she would have been asked to provide information or would even have been questioned about military matters on her way in to Vavunia or back into Vanni.
The Tribunal opined that it was fanciful to suggest that the military or the LTTE blamed her for fatalities or casualties arising from any military operation and that the scenario of the LTTE directing a suspected informant by letter to come in for questioning was also surprising given the brutality for which the LTTE is known.
The Tribunal did not accept that the first applicant's other son had been forcibly recruited by the LTTE and that the applicant attracted the enmity of the LTTE for opposing this. The Tribunal noted that cases of forcible recruitment are documented by human rights organisations because the families of abductees complain. As the son was old enough to travel to Australia by himself and it is inconceivable that the applicant would simply leave Sri Lanka without somehow reporting what had happened to her older son to the local Red Cross, any human rights organisation ought to be authorities. In Australia she had not taken any action to have her son traced and it followed that the Tribunal did not accept that the applicant herself was detained in June 2001 for protesting her son's "recruitment".
The Tribunal noted that if the applicant's son had joined the LTTE, against her wishes, that did not put her at risk of persecution by either the LTTE or the Sri Lankan government.
The Tribunal noted that the ceasefire is holding and peace negotiations are well underway and that the risk of unwilling family members of LTTE recruits being targeted is no more than speculative at this point or for the foreseeable future.
The Tribunal did not accept that the applicant's husband was missing. It noted the applicant gave inconsistent accounts of the context in which this occurred. One was that he was taken by the LTTE in circumstances the Tribunal found implausible, and the other was that he simply failed to join the applicants as planned. Furthermore, the Tribunal considered the applicant's explanation for not seeking assistance of the Red Cross or any human rights organisation in connection with the husband's disappearance was completely unconvincing. The Tribunal concluded that if he was detained by the LTTE as is implied in her second account of his disappearance, he could not be any more endangered if she had, for example, the Red Cross involved.
The Tribunal accepted that the applicant is Tamil but did not accept that Tamils as such are persecuted in Sri Lanka. Rather, those of a certain profile are at risk. The Tribunal noted that only Tamils with a certain profile attract suspicion in Colombo and therefore may be at risk of being seriously harmed. However the applicant does not fit that profile. She is a middle aged woman travelling with her son. She has a national identity number. Country information relied on by the Tribunal indicates that with travel documents the applicant would be able to obtain a replacement identity card and either stay in the south or move freely around Sri Lanka within the limits of the remaining travel restrictions (which do not constitute persecution). Even if she wished to return to the Vanni or Jaffna she could do so and not be at any identifiable risk of persecution.
The Tribunal was also satisfied it would be reasonable for the applicant to relocate to the south given that both she and her son can speak English. The profile of the applicant's son, even with his scar, does not constitute a real risk. Now that he is of age and with his mother he would be able to obtain a national identity card of his own and the chance of the applicants being seriously harmed in the foreseeable future is even further minimised by the fact of the peace process and the relaxation of security around Colombo.
Accordingly, having considered the evidence as a whole the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol and therefore the applicant did not satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa.

As no specific Convention claims were made on behalf of the son his fate depended on the outcome of the first applicant's application.

The applicant's grounds

Whilst conceding that the application was made after the commencement on 4 July 2002 of the Migration Legislation Amendment (Procedural Fairness) Act (2002) (Cth) and that the grounds available are limited to those under s.424A, Division 4 of the Act, the applicant contended that there was a breach of procedural fairness, that being a breach of s.424A.
The breach alleged is that the Tribunal failed to give the applicant particulars of information the Tribunal considered would be the reason for affirming the decision under review. It was contended that in this case the Tribunal failed to give to the applicant copies of the pages of the passports and the birth certificates and ensure that the applicant understood why these documents were relevant to the review. It was submitted that these documents were part of the Tribunal's reasoning in not being satisfied that the applicants were nationals of Sri Lanka. It was submitted that this was a central and important finding in the decision and had the Tribunal been satisfied that the applicants were nationals of Sri Lanka it may have taken a different view of the risk that the applicants faced in Sri Lanka.
In addition it was submitted the Tribunal
conjectured persuasively
that the applicants lived near Manna in Sri Lanka and in doing so relied on the birth certificate of the applicant son. It was submitted that this finding was inconsistent with its finding that the Tribunal was not satisfied the applicants were nationals of Sri Lanka but the importance of the information should have been drawn to the attention of the applicants. It was contended that although the information was known to or provided by the applicant before the application for review, it was subject to s.424A of the Act as it was information not provided by the applicant on the review, that is specifically about the applicant.
This particular argument relates to the passports upon which the applicants entered Australia and birth certificates which were before the delegate. The applicants arrived on Indian passports which they claimed had been obtained fraudulently. The applicants claimed to be Sri Lankan citizens and supported that claim, by submitting photocopies from the Sri Lanka Register of Births to prove their citizenship. The birth dates on the passports are the same birth dates as those on the birth certificates.
The delegate of the Minister said (at Court Book, page 69):
While I retain some doubts as to the applicants' true country of nationality, in the absence of any concrete evidence to the contrary, I consider the applicant to be a citizen of Sri Lanka.
The Tribunal dealt with this issue at Court Book, page 148. The Tribunal found on the issue as follows:
a)The applicants’ identity, hence their nationality was very much in question and no direct evidence supported her assertion that the passports of which they were able to provide copies of some pages, were not genuine and legitimately issued to the people named and pictured in them.
b)The conclusion was open that the applicant is an Indian national as named per the passport. The birth certificates would then have to be someone else's. That conclusion would be supported by the applicant's extraordinary lack of knowledge about how the birth certificates were acquired and how they came to be in her possession.
c)The applicant’s account suggests that they were not owned by the applicant but were fraudulently obtained with a view to fabricating a Sri Lankan nationality for the applicant.
d)A number of possible readings can be made of the fact that the birth dates are the same on the birth certificates as on the passports;
·either the passports are genuine and the birth certificates are false or belong to someone else (the "agent" having gone to the trouble of obtaining certificates, somehow five years old, with the applicants' own birth dates); or
·the passports are fraudulent and the birth certificates are genuine as claimed by the applicant; or
·that both are genuine, that is the applicant has changed her name and become an Indian national.
The applicant contends that the passports should have been shown to the applicant pursuant to s.424A and she should have been asked for her comments pursuant to s.441A.
As to the birth certificates, it is contended that these were provided by the applicant but without knowing that they would be ruled upon and that she should have been given the opportunity to comment. The applicant acknowledges that the Tribunal although not being satisfied the applicant was a Sri Lankan national, accepted that there was sufficient doubt over the issue to ask itself the question of what would be the consequence if it was wrong and therefore to proceed to analyse their claims as though she might be a Sri Lankan national. However the applicant contends that notwithstanding this concession on the part of the Tribunal, the rest of the decision of the Tribunal is coloured by the Tribunal's doubt about the nationality of the applicant.
The questions for consideration therefore are:
a)Was there a breach of s.424A? If so, is it more than a technical breach (and therefore not amounting to jurisdictional error)?
b)Is there discretion to withhold a remedy even if there is a breach of s.424A and if so, when should that discretion be exercised?
The applicant contends that the pages of the passports and the birth certificates should have been sent to the applicant and the applicant asked to comment upon them. It is contended that s.424A(2) requires that both the information and invitation must be given to the applicant, relevantly, by one of the methods in s.441A. That section applies to provision of documents.
The argument is a more technical one than first appears. There is an exception to s.424A created by s.424A(3) which says as follows:
This section does not apply to information:
(a)… ; or
(b)that the applicant gave for the purpose of the application; or
(c)… .
The question of whether the exception in s.424(3)(b) applies was dealt with by Madgwick J in Al Shamry v Minister for Immigration & Multicultural Affairs (2000) FCA 1679 [at paragraphs 27 and 28] where his Honour said in relation to this argument:
It appears that s 424A intends, for the sake of fairness and efficiency in decision making and for the associated purpose of administrative completeness, that applicants be provided with all of the information relevant to their claim that they have not themselves provided in connection with the current review application before the Tribunal.
The manifestly beneficial purpose of the legislation in question, enacted to meet Australia's obligations under the Convention, supports this construction of s 424A.
The respondent contends that the reasoning of the Court in Al Shamry does not apply in this case because there is a strong argument that the passport and birth certificates were produced for the purposes of the application before the Tribunal. Thus it is contended by the reference in the submission of the applicant's adviser to the Tribunal at Court Book, page 91 by the use of the words:
The applicant respectfully submits it is not her intention at this stage to dwell laboriously on the correctness of the decision of the delegate of the Minister, although the delegate has not only dealt with the evidence superficially but also erroneously interpreted the facts and the circumstances of the application, since the hearing before the Tribunal is de novo and the Tribunal will look into the entire corpus of evidence afresh.
This was the position taken by the Full Court of the Federal Court in VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 141 [at paragraph 43].
Whilst I accept the respondent's contention that it is arguable that the comments of the Full Court in VCAT are applicable to the question of whether in reality the applicant appreciated the material upon which the Tribunal was relying. I find that it is attenuated by sufficient doubt that I should not apply the exception in s.424A(3)(b).
I am therefore prepared to assume in this case, without deciding it, that the Tribunal failed to invite the applicant in writing, to comment on the inconsistencies between the passports and birth certificates and the relevance of these documents to the Tribunal's reasoning in not being satisfied that the applicants were nationals of Sri Lanka.
However, there remains to the Court a discretion to refuse relief pursuant to s.39B of the Judiciary Act. There are a number of matters which in this case go to the question of discretion to refuse relief on this issue.
Even though I have assumed that the applicant was not given the chance to respond to the Tribunal's concerns about the inconsistencies between the passports and the birth certificates, this material was presented by the applicant. The applicant's own case was that the passports were false and the birth certificates valid and that her own arguments depend upon an acceptance of her evidence that one set of documents was false and one was valid. That is, that she was aware the documents themselves were inconsistent and the acceptance of her version was essential to her claim. The Tribunal correctly pointed out that no direct evidence supported her assertion that the passports were not genuine in pointing out that the conclusion was open that the applicant was an Indian national named as per the passport. Similarly, the Tribunal's explanation of the number of possible readings that could be made from the two documents is a matter of common sense.
Furthermore, the decision of the delegate makes it clear that there were concerns about inconsistencies with the birth certificates and passports. These matters were clearly set out in paragraphs 3.3.7 and 3.3.8 of the delegate's decision at Court Book, page 75. The applicant would have been in no doubt from reading the delegate's decision that there were issues raised by the documents which had not been addressed. The reference by her adviser to all of the materials before the delegate being dealt with by the Tribunal de novo, makes it clear that these were matters upon which the applicant ought to have known explanation was required. This is a relevant matter in the exercise of discretion.
The Tribunal by not being satisfied the applicant was a Sri Lanka national accepted there was sufficient doubt and proceeded to analyse her claims as though she might be a Sri Lanka national. The applicant contends that nevertheless the Tribunal’s doubts so coloured its consideration of her credibility that all of the subsequent findings about her credibility are coloured by the doubt about her nationality.
There were however a number of findings by the Tribunal that they were entitled to come to quite independently of the issue of citizenship. As an example of this, the Tribunal was particularly concerned about the differing versions of how the applicant came to leave Sri Lanka and the fate of her husband.
The applicant at pages 42 and 43 of the Court Book asserted in her written statement that upon receiving a note from the LTTE asking her to come for an inquiry to their camp she decided to flee immediately with her family. She said that at the same time security forces were also searching for her and that on the third evening her son and herself went to the residence of her husband's cousin to discuss their journey to Tamil Nadu and her husband was at home during that time. She asserted that the cadres of the LTTE came home to take her for questioning and as she was not there they took her husband away. On hearing of this through a friend she was advised not to go back to her residence and leave the country immediately and on 4 December she left.
At the interview with the delegate[1], the delegate noted the applicant's claims differed significantly from the written submission which had been lodged with her protection visa application. At Court Book, page 146 the Tribunal sought to establish from the applicant when she went to her husband's cousin's home and whether she did so with the intention of leaving immediately or whether it was a planning visit. She informed the Tribunal that she was actually leaving and said that her husband had told her to go and he would join her the next day. She told the Tribunal she did not know what had happened to him. The Tribunal noted that the written claims of the applicant stated she and her son went to her husband's cousin's to discuss the journey and that when the LTTE cadre came to take her for questioning they took her husband instead. The Tribunal observed this was quite different from what she had said at the hearing and when pressed by the Tribunal said that her original written statement was wrong. Given that her statement was prepared with the assistance of an adviser with no time constraints, the Tribunal could reasonably have doubted her credibility on this matter.
[1] See Court Book, page 71.
Another example is at Court Book, page 41 where, in her written statement the applicant stated that in September 1997 she and her husband wanted to start a transport business with financial assistance provided by her brother-in-law. They subsequently gained permission from the LTTE on condition they provided them with information. She claimed in the written statement that they started the business in November 1997 and transported provisions. In her interview with the delegate[2] the applicant adamantly denied that she owned a transport business and stated that from time to time she and a few others would travel from the Vanni district to Vavunyia to buy goods which they would sell once they got back to Vanni. She said to travel between the two areas they obtained passes from the LTTE and the Sri Lankan authorities and passed through a number of check points between the two areas. The applicant would then tell the LTTE about the number of soldiers at the army check point and vice versa with the Sri Lanka authorities. At page 151 of the Court Book the Tribunal dealt with this issue and said:
The applicant then claimed that from 1997 onward she was travelling back and forth from the Vanni to Vavunyia in some sort of commercial role. The Tribunal does not accept that this is the case. The applicant was unable to describe in any significant detail the arduous process of making this journey, at the delegate's interview. In the hearing she gave a very detailed answer which, in general terms, appeared to be accurate enough. But the paucity of the earlier account was still inexplicable leading the Tribunal to conclude that the applicant had informed herself in the intervening period.
[2] See Court Book, page 71.
In addition the Tribunal was concerned about conflicting stories by the applicant about check points and sentry points. At Court Book, page 150 the Tribunal noted that if the applicant was travelling on back roads and bypassing security checks as she suggested at one point, this was the explanation for not knowing the legitimate route but would undermine her claims with regard to her relationship with the army and the LTTE (that is she knew and passed on military information about check points).
The Tribunal then went on to note that in any event, even if the applicant had made the journey either by back roads or the main road, the Tribunal did not accept that she provide information to the army about the LTTE or vice versa because she would not have had had access to any information of any significance (that is, important information that the respective forces would not already possess) and therefore it was implausible that she would have been asked to provide information or even have been questioned about military matters on her way in to Vavunyia or back into the Vanni. The Tribunal concluded that the claim was inherently implausible. The Tribunal could not get a clear indication from the applicant as to why she was detained by the LTTE in 1990 for six months.
Further, the Tribunal relied upon the reasonableness of the applicant relocating to another area in Sri Lanka with her family and the ceasefire and peace process in place.
I accept the submissions of the respondent that there were ample reasons for the Tribunal's findings as to credibility which it is difficult to relate to doubts about her Sri Lankan identity as asserted by the applicant. These matters are also in my view relevant to the exercise of discretion.
In Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) FCAFC 140 [at paragraph 106], Merkel J said:
The Minister contended the Court should exercise its discretion to refuse relief as the breach of s 359A(1) was merely technical and did not affect the outcome. Generally, relief for a failure to comply with a requirement of procedural fairness is withheld only where the Court concludes that compliance with the requirement "could have made no difference". (See Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145). As was noted in Bax v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 55 at [18] such an outcome will be a rarity and it is no easy task to convince a Court to adopt it. While the above observations were made in relation to a refusal of relief where there has been a failure to comply with the common law requirements in respect of procedural fairness I see no reason to not apply them to the failure to comply with s 359A(1) in the present case.
However the facts in this case are not on all fours with the facts in Awan. The Tribunal dealt with the applicant's claims on the basis that she was a Sri Lankan national even though it did not consider the evidence established that. The applicant has not been able to point to any other findings on credibility which can be directly related to the Tribunal's doubts about her citizenship other than a statement that it is the case. Given that the Tribunal did consider the applicant's case as if she were a citizen of Sri Lanka, I am not satisfied it can reasonably be said that failure to notify her of the Tribunal's concerns regarding the documents which went to this issue, could have made any difference to the Tribunal's findings which were made on other grounds. And the applicant was not in fact disadvantaged by not having the Tribunal's concerns about the passport and birth certificates brought to her attention. For these reasons, in my view the discretion to grant relief on this ground should be refused.

Failure to deal with applicants son’s profile

The second ground relied upon by the applicant was that the Tribunal failed to deal with the profile of the applicant son. It is submitted that he is around 20 years of age and that the Tribunal failed to deal with the future risk to the applicant son and in so doing failed to deal with a relevant consideration, being whether the applicant son has a well founded fear of persecution.
In particular it is submitted that the Tribunal failed to explain how the applicant son did not fit the profile of those of interest to the authorities as set out in the country information and failed to deal for example with whether the applicant son was at risk of having to explain his presence in Colombo and whether there was a chance that he would be subject to human rights abuses either in the Vanni or in Colombo.
As a result it is submitted that the Tribunal failed to deal with one of the claims of the applicants or one of the integers of the applicant's case. Whilst the applicant accepts that the son did not present as the main applicant, claims were made about the applicant mother's other son and it ought to have been, it is submitted, apparent to the Tribunal that the applicant son had to be dealt with as an applicant putting forward his own claims. It is submitted that it is apparent he was not so considered. The applicant contends that the Tribunal made scant comment on the son's claims at page 151 of the Court Book where the Tribunal said:
The Tribunal is also satisfied that it would be reasonable for the applicant to relocate to the south given that both she and her son can speak English. The profile of the applicant son, even with his scar, also does not constitute a real risk. Now that he is of age and with his mother he would be able to obtain a national identify card of his own. The chances of either of the applicants being seriously harmed in the foreseeable future is even further minimised by the fact of the peace process and the relaxation of security around Colombo.

It is contended that the Tribunal did not come to grips with the son's claim as put forward and that the Tribunal should have looked at the fact that he would be at risk because of his age.
However the only independent claim on behalf of the son that can be discerned from the claims of the applicant appear at Court Book, page 41 where in a written submission the applicant said:
The LTTE warned that if I created any further problem they will forcibly recruit my other son, Ramish, and ask him to cooperate with them.
It is clear that the son did not make an independent application[3]. Forms were all completed by the applicant mother. Although he could have done so the son did not make a claim in his own right and:
·did not say anything to the delegate;
·did not make a written statement;
·did not attend the Tribunal hearing;
and the Tribunal were not obliged to treat him as having a separate claim.
[3] See Court Book, 11 and 25.
In any event the Tribunal did say that he would not be at risk and considered his[4] profile. There is nothing that the Tribunal did not consider about the applicant son's claim which would amount to jurisdictional error.
[4] See Court Book, page 151.

Failure to deal with psychological evidence

The third ground relied upon by the applicant was a contention that the Tribunal failed to deal with the psychological evidence. The applicant contends the Tribunal failed to deal with each of the applicant's claims by failing to take into account the psychological evidence of the applicant. It was the opinion of a psychologist that when the applicant becomes emotionally aroused she appears confused and loses her train of thought. His opinion is that this sometimes gives the appearance of evasiveness.
It is submitted that the Tribunal failed to take into account this opinion preferring instead its view that any confusion was because the applicant's claimed experiences were not true. As a result of the failure to take into account the psychological evidence, it is submitted that the Tribunal has fallen into error by failing to consider each of the claims of the applicants and as a result failed to consider whether they have a well founded fear of persecution which amounts to jurisdictional error because the Tribunal failed to take into account relevant considerations.
The relevant part of the psychological report appears at page 106 of the Court Book and says:
She is competent in the overall sense that her memory is not generally impaired and she responds confidently to questions about her experiences. Two caveats are in order however, firstly when she becomes very emotionally aroused she appears confused and loses her train of thought and, secondly perhaps in order to protect herself from the distress associated with difficult experiences, she sometimes appears at first to provide elliptical or tangentially relevant responses to questions directed to such experiences; this can give the initial appearance of evasiveness about or a lack of detailed knowledge regarding events which she is subsequently able to more comprehensively describe.
However the Tribunal did not find that the applicant's demeanour was one of evasiveness or her answers were elliptical but rather that there were differences in her versions of events given to the Tribunal and the Tribunal thought her evidence was implausible. Further, even allowing for the fact that the Tribunal is not bound by the rules of evidence in the same way as a Court, and therefore might receive evidence going to the question of whether a person should be believed, it is unlikely that the Tribunal would be much affected by that evidence. More importantly, if the evidence is ignored, or given insufficient weight, the Tribunal will not fall into error. It is not for a Court to dictate to the Tribunal how much weight it must give to a particular piece of evidence. Thiruhkumarv Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 268 at paragraph 37, per Cooper and Finkelstein JJ [at paragraph 37 and at paragraph 6], per Drummond J:
It is apparent that the Tribunal did not place any weight on the opinions expressed by the two experts about the appellants truthfulness. According to the rules of evidence, those particular opinions are not properly the subject of expert opinion since they are not opinions that can only be reached by persons of special expertise. But the Tribunal is not bound by the rules of evidence and could have given weight, if it chose, to the experts' assessments of the applicant's veracity. It chose not to place any weight on that material and no complaint can be made about that.
This is not a case where the Tribunal substituted its own opinion for that of an expert, and the Tribunal was obliged to make its own findings about credibility. This case is not on all fours with Zachinov v John Gibson and Anor (1986) 696 FCA 1 or Sudsehi v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 and FGLB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 176 relied on by the applicant
I am not satisfied that the applicant has demonstrated any jurisdictional error on the part of the Tribunal which would entitle her to the relief sought and the application must be dismissed.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 12 May 2004