Applicant M1014 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor

REASONS FOR JUDGMENT Background 1 The appellant is a male Tamil-speaking Muslim from Sri Lanka. He came to Australia on a passport and student visa issued to his brother. He applied for a protection visa under s 36 of the Migration Act 1958 (Cth) claiming that he was a refugee to whom Australia owed protection obligations under the Refugees Convention. The application for a protection visa was refused by a delegate of the Minister. The delegate's decision was affirmed by the Refugee Review Tribunal. The appellant later applied to the Minister under s 417 of the Act, seeking a more favourable decision. The Minister declined to exercise his powers under that section. The appellant then became a member of the group represented by the plaintiffs in Muin v Refugee Review Tribunal (2002) 190 ALR 601. When judgment in that case was handed down in favour of the plaintiffs, directions were given to enable the appellant to challenge the tribunal's decision based on the reasoning of the High Court. This he did in an application to the High Court for the issue of constitutional writs. The application was remitted to the Federal Court and in due course was transferred to the Federal Magistrates Court, where it was dismissed on its merits: M1014 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] FMCA 1652. The appellant now appeals that decision. The decision of the Refugee Review Tribunal 2 The basis upon which the appellant sought a protection visa was that Sri Lankan authorities suspect him of being a supporter of the Liberation Tigers of Tamil Elam (LTTE). The appellant says that he fears being persecuted as a dissident if he returns to Sri Lanka. The appellant claimed that he was tortured and imprisoned by Sri Lankan authorities following the discovery, by police, of weapons stored at the house in which he lived. The weapons belonged to the LTTE. The appellant claimed that these weapons were stored, against his wishes, by his brother and a Tamil-Hindu friend. 3 In its reasons, the tribunal found the appellant's claims that he was implicated in LTTE gun-smuggling, that he was threatened by the LTTE or its agents, that he was detained and mistreated by government security forces and that his brothers have been harassed on his account, to be 'contrived'. Amongst other things, the tribunal did not accept that LTTE operatives would entrust a Tamil-speaking Muslim with information about weapons. In support of this finding the tribunal referred to 'the radical political divide between Tamil-speaking Muslims and the LTTE'. 4 The tribunal went on to find that, in any event, the appellant had not given evidence that he had been harassed in Sri Lanka for any Convention reason. The tribunal stated that: 'While [the appellant] speaks Tamil, the evidence cited by the delegate leads to the conclusion that language is the only common cultural activity shared between Muslims and other Tamil-speaking groups… There is no evidence to suggest that the [appellant] faces persecution because he speaks Tamil or because of his religion. On the other hand, the available information indicates that the Tamil-speaking Muslim population is aligned with government forces and policies and the [appellant] has not provided any acceptable evidence on which to base a conclusion he might be perceived to be a dissident, either as a supporter of LTTE or for any other reason'. The tribunal concluded that the appellant did not have a well-founded fear of persecution for Convention reasons. The proceeding in the Federal Magistrates Court 5 The appellant applied for a writ of certiorari to quash the decision of the tribunal on the basis that the decision was affected by jurisdictional error. The appellant's complaint related to the procedures that were adopted by the tribunal in dealing with his application. As in Muin, the appellant contended that certain documents containing country information that were referred to in part B of the delegate's reasons for decision, and which are said to be favourable to the appellant's case, were not provided to the tribunal. The appellant alleged that as a result of correspondence he received from the tribunal to effect that '[the tribunal] would ask the Department for, and would look at, all of the material relating to [the appellant's] case', he was mislead into believing that the tribunal had considered the part B documents and, as a result, he had been denied the opportunity to put this information before the tribunal. Specifically, the appellant said that 'had [he known] that the tribunal had not looked at this material (especially the parts that would have helped [his] case) [he] would have tried to make sure that the tribunal was aware of that material.' The appellant claimed that this failure to accord natural justice constitutes jurisdictional error and constitutional writs should issue. 6 In his reasons, the Federal Magistrate made four findings which were fatal to the appellant's case. First, the Federal Magistrate concluded that 'the credibility findings against the applicant clearly stand alone in relation to [his] application. They are not dependent upon whether or not the tribunal did or did not have in its possession the part B documents'.Second, the Federal Magistrate was satisfied, on the balance of probabilities, that the tribunal did in fact have the part B documents before it. Third, the Federal Magistrate found that the appellant had 'failed to identify with sufficient clarity favourable material within the part B documents which he may have drawn to the tribunal's attention…'. Fourth, the Federal Magistrate found that the appellant had not 'identified with any degree of certainty the manner in which he was mislead into believing that the tribunal had received and considered all of the part B documents'. As a result the Federal Magistrate dismissed the application. The appeal 7 The question before this court is whether these findings were reasonably open to the Federal Magistrate. Moreover, if it was reasonably open to the Federal Magistrate to find, as he did, that the tribunal had the part B documents, the appellant's other grounds of appeal cannot succeed. Failure to refer to part B documents in the tribunal's reasons 8 There are seven documents containing country information set out in part B of the delegate's reasons for decision. These documents are sequentially labelled 'B1' to 'B7'. It is not contested that the tribunal had been provided with, and may have referred to, documents B1 and B2. There are three reasons why the appellant says that it should be inferred that the tribunal did not receive the balance of the part B documents. First, the appellant relies on the fact that the tribunal did not directly refer to any of documents B3 to B7 in its reasons. It is common ground that the tribunal indirectly referred to information contained in documents B3 and B4, by reference to paragraphs of the delegate's reasons which extracted material from those documents. However, the appellant contends that this is no basis for concluding that the tribunal had the documents themselves. 9 Further, the appellant contends that the part B documents are favourable to his case. Had the tribunal considered these documents, the appellant submits, the tribunal may not have relied on certain generalisations made by the delegate relating to the political divide between Tamil-speaking Muslims and the Liberation Tigers of Tamil Elam, the activities shared between Muslims and other Tamil-speaking groups and the alignment between government forces and the Tamil-speaking Muslim population. In particular, counsel identified the following passage from document B4 which the appellant contends should have brought to the tribunal's attention 'the detailed historical cultural complexities of life on the ground': 'The case of Islamic Tamils spotlights the weaknesses of Tamil nationalism with clarity. They are a grouping with a unique economic, socio-political structure, and cultural characteristics. Large sections of them live in the east, with pockets of them well entrenched all over Sri Lanka, but isolated from each other. The cohesive factor binding them is Islam, not Tamil. Not only do they have historical contradictions specific to themselves with the Sinhalese, but they have suffered during anti-Tamil "race riots" as well. Though the slogans and programmes of all movements paid lip service to the rights of Muslims, there has never been a concrete programme to realise their goals, or the articulation of their needs and objectives during the process of struggle.' While information contained in the part B documents, including this passage, may highlight the position of the Islamic Tamil population in Sri Lankan society, I am not satisfied, even on its most generous reading, that this information is sufficiently pertinent, either in support of or to contradict the tribunal's findings, that a failure by the tribunal to refer to it would warrant the inference the appellant seeks. 10 Be that as it may, not all documents that a tribunal reads must be referred to in its reasons. While a failure to refer to a document that is important to a particular claim may lead to the inference being drawn that the tribunal did not have or consider that document, it has not been shown that the documents in this case are sufficiently important to warrant such an inference. Admissibility of agreed facts from another proceeding 11 The second basis upon which the appellant says the court should infer that the part B documents were not provided to the tribunal is the assertion that, at the time of the appellant's application to the tribunal, there was a 'practice of the Secretary… not to forward country information documents referred to in part B of the delegate's reason for refusal'. As evidence of this practice the appellant sought to rely on the agreed statement of facts in Muin in which it was agreed that the Department did not include copies of the part B documents in the file concerning the plaintiffs that was dispatched to the tribunal. The respondents do not make the same concession in this proceeding. 12 There are at least two reasons why the appellant cannot use the agreed statement of facts in this way. First, and most obviously, the fact that the department may not have provided the tribunal with part B documents in other cases is irrelevant here. Each case must be decided on its own facts. Second, the appellants submission fails to take into account the nature and object of agreed facts which, like pleadings, aim to narrow the issues to be tried in a particular action: see by way of analogy Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 85-86. The admissions are not transportable to other proceedings. Inference from the tribunal's failure to give evidence 13 Finally, and this is the third point, the appellant contends that it was open to the first respondent to prove that the tribunal had received the part B documents and the first respondent chose not to lead evidence on this point. Jones v Dunkel (1959) 101 CLR 298 permits the drawing of the inference that the documents were not provided. 14 This submission fails to take into account s 435(1) of the Migration Act 1958 (Cth). That section provides that 'a member [of the Refugee Review Tribunal] has, in the performance of his or her duties as a member, the same protection and immunity as a member of the Administrative Appeals Tribunal'. This is the same protection and immunity as a Justice of the High Court: Administrative Appeals Tribunal Act 1975 (Cth), s 60. This immunity, which includes immunity from suit and compulsion to give evidence, will prevent any adverse inference being drawn from a failure by a member of the tribunal to give evidence: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, paras 25, 118, 196-199. The rule extends to a failure to give evidence in relation to any aspect of the decision-making process including whether or not the tribunal had read, obtained, considered or taken into account particular documents: Herijanto v Refugee Review Tribunal (2000) 170 ALR 379. Inference from the department's failure to give evidence 15 It may be that the appellant seeks to distinguish between inferences that may be drawn from the tribunal's failure to give evidence that it had received the part B documents and inferences that may be drawn from the department's failure to give evidence that it had provided the tribunal with these documents. While s 435(1) does not in terms apply to anyone other than members of the tribunal, Gaudron J said in Herijanto v Refugee Review Tribunal (No 2) (2000) 170 ALR 575 at [10] that the protection and privilege conferred by s 435(1) of the Act must extend 'not merely to disclosure by the individual member concerned, but [also to] the revelation, by whatever means, of any aspect of his or her decision-making process'. It follows that the Department's failure to give evidence cannot attract a Jones v Dunkel inference. Conclusion 16 It was open to the Federal Magistrate to conclude, as he did, that the part B country information documents were before the tribunal. It follows that the appellant's other grounds of appeal also fail. The appeal will be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.