VPAW v Minister for Immigration - [2004] FMCA 410

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VPAW v MINISTER FOR IMMIGRATION

[2004] FMCA 410

MIGRATION – Judicial review – protection visa – regional information – whether jurisdictional error – whether failure to put concerns in relation to evidence constitutes jurisdictional error.

VPAV v Minister for Immigration [2004] FMCA 409
VPAX & Anor v Minister for Immigration [2004] FMCA 411
MIMIA v Eshetu (1998) 197 CLR 611
Pilbara Land Council v ATSIA (2000) 103 FCR 537

Applicant:

VPAW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 697 of 2003

Delivered on:

25 June 2004

Delivered at:

Melbourne

Hearing Date:

25 May 2004

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr J Gibson

Solicitors for the Applicant:

Wimal & Associates

Counsel for the Respondent:

Mr C Fairfield

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application be dismissed with costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 697 of 2003

VPAW

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The Applicant in this application relies upon an amended application filed on 29 August 2003 made pursuant to s.39B of the Judiciary Act 1903 (Commonwealth) and ss.475A and 477, 478 and 479 of the Migration Act 1958 (Commonwealth) (the Act) for writs of prohibition and certiorari and for a declaration in relation to a decision of the Refugee Review Tribunal (the RRT) handed down on 2 May 2003. The decision of the RRT affirmed a delegate’s decision of the Respondent not to grant the Applicant a protection visa.
This application is related to two other applications where the Applicant’s mother, sister and father have made applications for protection visas. Those applications which are the subject of separate proceedings of this Court are dealt with in the matters VPAV v Minister for Immigration [2004] FMCA 409 (the father’s claim) and VPAX & Anor v Minister for Immigration [2004] FMCA 411 (the mother and sister’s claim).
The Applicant is male national of Sri Lanka who entered Australia on 24 April 2000. He lodged an application for a protection visa on

29 May 2000. A delegate of the respondent refused the application on

23 June 2000 and the RRT affirmed that decision on 24 November 2000. That first RRT decision was the subject of review in the Federal Court which decided on 2 October 2001 to set aside the RRT decision and remit the matter to a differently constituted RRT.
Before the differently constituted RRT the Applicant was invited to attend and did attend a further hearing conducted on 5 February 2002. He further attended a joint hearing held later that day in respect of the related claims referred to earlier of his mother and father.
The RRT delivered its decision as indicated on 2 May 2003 affirming the delegate’s decision. The Applicant then filed an application in the Federal Court of Australia on 27 May 2003 which by order of that Court was transferred to the Federal Magistrates Court.
In the Amended Application filed 29 August 2003 the Applicant has relied upon a similar if not identical grounds to those grounds raised by his father in application VPAV referred to earlier. I refer specifically to ground 1 in the Amended Application. I apply and adopt the reasoning in VPAV to that ground in the present application for the reasons given in my view that ground should not succeed.
There remains to consider therefore the remaining grounds of this application namely ground 2 where the Applicant claims the following:-
“2.The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential precondition to or inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s.65 of the Act to grant or refuse the application and its powers to conduct a review under s.415 of the Act. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction by reason of a breach of the rules of natural justice and/or a denial of procedural fairness.
Particulars
(i)It rejected the authenticity of the lawyer’s letter which went directly to the risk of persecution by the security forces as a Tamil or perceived LTTE member without indicating to the Applicant that there was any question of its authenticity or that it was not genuine thereby not affording him the opportunity to comment on this issue and/or to call evidence that the letter was in fact genuine.”
It was submitted on behalf of the Applicant that there is jurisdictional error arising from the rejection of the lawyer’s letter on the basis of its authenticity. It was argued that the letter raised directly the issue of the risk of persecution by security forces of the Applicant as a Tamil or perceived LTTE member without indicating to the Applicant that there was any question of the authenticity of the letter or that it was not genuine. By doing so it was submitted the Applicant was not afforded the opportunity to comment on the issue and/or to call evidence that the letter was in fact genuine. It was argued that this could not be claimed to have not affected the outcome.
The Respondent submitted that it cannot be contended that there is any express obligation in the Migration Act upon the RRT to raise with the Applicant any concerns about the genuineness of the letter provided. It was submitted that s.424A contains no such obligation (see MIMIA v Eshetu (1998) 197 CLR 611 at [56] per Gleeson CJ and McHugh J). The Respondent further submitted that s.424A is an exhaustive statement of and overrides the common law obligations in this respect.
It was further submitted that even if s.424A is not an exhaustive statement of the requirements upon the RRT in this respect, which is denied, even at common law there is no obligation to put to a visa applicant each and every qualitative concern over material relied upon by a visa applicant. It was submitted that even if the material is treated by the decision maker as critical to the making of the decision, common law imposes no obligation to put qualitative concerns about that material to a visa applicant where the material has been provided by the visa applicant (see Pilbara Land Council v ATSIA (2000) 103 FCR 537 at 557). It was submitted in the present case the Applicant provided the lawyer’s letter. In any event it was submitted the genuineness of the lawyer’s letter could not be said to have been critical in the making of the RRT decision. The RRT in its reasons gave numerous discreet reasons why it did not believe the Applicant’s claim as to what had happened to him in either Jaffna or Varney or Colombo or in the United Kingdom. Further, it was submitted that the RRT did not believe the Applicant had been subjected to two periods of detention and ill treatment in the two week period he spent in Colombo before departing for India and the basis of that finding was the Applicant’s vagueness about the names of the people who has assisted him. It was submitted the RRT did not reject the claim of detention and ill treatment in Colombo because it found the lawyer’s letter not to be genuine. Instead the reason for the rejection of the claim was because the Applicant could not recall the proper name of either the agent or the lawyer.
The Respondent submitted that upon proper reading of the RRT’s decision it would be implausible to suggest that the RRT’s questioning of the Applicant did not alert the Applicant to the significance the RRT attached to the ability or otherwise of the Applicant to provide the lawyer’s proper name.
It is perhaps appropriate to set out the reference by the RRT to the letter as follows:-
“At the hearing the Applicant submitted a copy of a letter from a lawyer in Sri Lanka stating that the Applicant had been taken in for questioning by the Sri Lankan police on 4 August 1999 and kept in custody for two days.
….
… The Applicant said that all Tamils who couldn’t speak Singhalese were arrested and tortured and questioned about their association with the LTTE. On this occasion he had been held for about four days. A solicitor organised his release. The lawyer was a Singhalese person. He was not sure of his name. The Tribunal pointed out that the Applicant had presented a letter from this lawyer. Why didn’t he know his name? The Applicant said that the lawyer was called ‘Pusantha’.”
In its findings the Tribunal states the following:-
“The Tribunal gives no weight to the letter from the lawyer. It notes the information provided by the Department of Foreign Affairs and Trade about the prevalence of document fraud in Sri Lanka including the complicity of the legal profession.
… In view of the Applicants willingness to return to Colombo from India after only a short time and his vagueness about the important details such as the names of people who assisted him to be released from detention the Tribunal does not accept that the Applicant was arrested and detained in Colombo in four separate occasions in 1999.”
It is also significant to note whilst referring generally to the evidence that the Tribunal made the following finding:-
“Taking into account all the problems identified above with the Applicant’s evidence, the Tribunal is not satisfied that he has been truthful about past events. The Tribunal finds that the Applicant has not been harmed in the past by either the Sri Lankan authorities or the LTTE and that he has fabricated his claims to have been persecuted in order to provide a basis for his application for refugee status in Australia.”
The Respondent in the light of the reference to the lawyer’s letter and specifically by reference to general findings of the RRT submitted that there were other reasons for rejecting the Applicant’s claim beyond the finding that the lawyer’s letter was not genuine. That letter in any event was only relied upon in respect of a second claimed detention and there were broader claims about other detentions relied upon by the Applicant and on that basis it was submitted that even if there was an obligation to alert the Applicants to its concern about the lawyer’s letter it would not have made a difference to the outcome and it is difficult what evidence or material the Applicant could have provided to counter any perception by the RRT that the letter was not genuine.
In my view the submissions of the Respondent in relation to this ground are correct. Even if one were to impose, and as a matter of law I do not accept that it should be imposed, an obligation on the RRT to disclose its reservations about the genuineness of the lawyer’s letter I am satisfied on a proper reading of the reasons for the RRT that it examined a wide range of material said to support the Applicant’s assertions about ill treatment in Colombo. It is not for the RRT applying common law principles to put precisely to the Applicant concerns it may have about the genuineness of one part of the evidence when considering the overall material and its assessment of the reliability of the Applicant.
It is significant to note that the RRT made the following finding which in my view was open to it to find on all the material before it which clearly indicates that it had made a finding above and beyond any conclusion which may depend on the genuineness or otherwise of the letter purportedly written by the lawyer. It found the following:-
“In considering the Applicant’s situation, the Tribunal has taken into account that he is a young Tamil male who was born in the north of Sri Lanka, and that even though the Tribunal is not satisfied that the Applicant himself has suffered persecution, it does accept that in the past many young Tamil men from the north have been treated with suspicion by the Sri Lankan authorities and have suffered serious harm because they have been imputed with a political opinion supportive of the LTTE.”
It is clear to me that the Tribunal was cognisant of the general issues that it must consider and the rejection of the lawyer’s letter was only one part of the material properly considered. In any event I am further satisfied to the extent that I am required that the Respondent’s submissions in relation to this issue are correct that s.424A does not oblige the RRT to raise concerns it may have had about the genuineness of the letter with the Applicant at the hearing particularly in circumstances where the Applicant is unable to identify the name of the author.
It follows for the reasons given in this matter and the related matters, the reasoning which I have adopted as indicated earlier, that this application should be dismissed with costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 28 June 2004