Applicant S214/2003 v Refugee Review Tribunal

REASONS FOR JUDGMENT THE COURT: 1 The ultimate question for decision in this matter is whether the Refugee Review Tribunal ('the Tribunal') denied the appellant procedural fairness by dealing with a statutory declaration, made by the appellant's sister and forwarded to the Tribunal on behalf of the appellant approximately ten weeks after the Tribunal's hearing, in the manner in which it did. 2 The appellant was born in Sri Lanka on 23 October 1957. Following the destruction of his family home in Valvedditturai, Sri Lanka, in 1984 the appellant and his family moved to Tamil Nadu in India where they set up residence in a location which they referred to as 'Trichy' in 1987. 3 On 28 July 1988 the appellant secured an Indian passport. That passport was obtained by false pretences. However, it was used by the appellant to travel to Australia in October 1995. The appellant was granted an Australian visitor's visa in New Delhi on 28 September 1995. Relying upon that visa and his 'Indian passport', he entered Australia on 31 October 1995. 4 On 17 November 1995 the appellant applied for a Protection Visa (866). On 14 November 1997 that application was refused by a delegate of the Minister. Thereupon, the appellant lodged an application for review with the Tribunal on 20 November 1997. That application was decided adversely to the appellant on 4 January 1999, the Tribunal affirming the decision of the Minister's delegate not to grant the appellant a protection visa. 5 Whilst there is an extensive history to the appellant's challenges to the Tribunal's decision, it is sufficient, for present purposes, to record that on 23 May 2003 the appellant applied to the High Court of Australia for an order nisi seeking prohibition, mandamus and certiorari in respect of the Tribunal's decision. That application was remitted by the High Court to this Court and determined by a Judge of this Court on 7 April 2006. The primary judge ordered that the application be dismissed and that the applicant pay the respondent Minister's costs. 6 On 27 April 2006 a notice of appeal was filed in this Court. 7 The reasons for decision of the Tribunal Member of 4 January 1999 are extensive. They occupy some 35 pages of typed script. 8 At page 31 of his reasons, the Tribunal Member said: 'The question that I have to address … is whether the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Sri Lanka now or in the foreseeable future.' Ultimately, the Tribunal answered this question in the negative. 9 Part of the appellant's case was that after he and his family had escaped to India in June 1987, Indian intelligence officers and police detained the appellant and his father one morning in 1991, taking them to a police station for questioning about their involvement in the Liberation Tigers of Tamil Eelam ('LTTE'). The appellant said that on the second day he had been taken to a detention centre where he had been tortured, beaten and punched in the face. The appellant said he had been asked to sign a statement that he had been arrested carrying guns and explosives in a suitcase at a bus station, but he refused to sign such a statement. He asserted that his father had signed such a statement and been imprisoned for two years without any charge being laid against him. 10 It is clear that the hearing before the Tribunal on 8 October 1998 was a protracted one and one in which the Tribunal put numerous propositions to the appellant which cast doubt upon the authenticity of the appellant's account of relevant events, including the authenticity of a newspaper report which purported to corroborate the appellant's claims. 11 The appellant did not favourably impress the Tribunal Member who commenced his 'FINDINGS AND REASONS FOR DECISION' with the following on page 23: 'I did not find the Applicant an impressive witness. He played for time when answering my questions, fell into inconsistencies and, when faced with such inconsistencies, denied what he had previously said. …' 12 On 15 June 1998 the appellant appointed Kerry Murphy of McDonells Solicitors as his agent in relation to his dealings with the Department. It would appear that at some stage during 1998 Mr Murphy moved from McDonells Solicitors to Craddock Murray Neumann, Lawyers. 13 On 25 November 1998 the Tribunal wrote to Mr Murphy referring to the hearing before the Tribunal which had been held on 8 October 1998. Under cover of the letter of 25 November 1998 the Tribunal forwarded to Mr Murphy a 'Minute' dated 13 November 1998 from a document examiner in the Department of Immigration and Multicultural Affairs in which the document examiner reported on his examination of a page from an Indian newspaper and four documents said to be two copies of an Arrest Warrant and carbon copies of an Application for Bail. 14 Importantly, the letter stated that the Tribunal Member, having considered the document examiner's report, remained of the view that the photograph in the newspaper, supplied to corroborate the appellant's claims, was not genuine. 15 The Tribunal's letter of 25 November 1998 invited further submissions on matters 'arising from the Document Examiner's report or in relation to any other issue …'. 16 It is clear that before receiving the Tribunal's letter of 25 November 1998, Mr Murphy had already submitted supplementary material to the Tribunal for its consideration subsequent to the hearing on 8 October 1998. In a letter to the Tribunal dated 15 December 1998 Mr Murphy wrote: '2. Convention nexus and well-foundedness of fear of persecution In my earlier letter of 29 October 1998, I provided considerable documentary evidence that the applicant is from Valvettiturai (sic) as claimed. In his evidence, he indicated his fears of persecution in Sri Lanka and why he beleives (sic) he cannot return there. …' 17 Notwithstanding the provision of the 'considerable documentary evidence' under cover of Mr Murphy's letter of 29 October 1998, Mr Murphy does not appear to have forwarded to the Tribunal at that time two statutory declarations, the making of which he appears to have witnessed on 14 October 1998. 18 His letter to the Tribunal of 15 December 1998 continued: 'I attach the following documents: (a) Statement of S … M …, brother (sic) to the applicant (b) Statement of M … S …, cousin to the applicant These are submitted as further evidence that the applicant is from VVT and also to corroborate other parts of the evidence of the applicant. …' 19 The enclosed 'statements' appear to be statutory declarations made by the nominated deponents on 14 October 1998. One such statutory declaration was that of the appellant's sister. It contained the following: '1. I was born in Valvettiturai (sic) (VVT) in northern Sri Lanka on 30 November 1959. I am a citizen of Australia and brother (sic) to [applicant S214/2003], the applicant to the Refugee Review Tribunal. I am an Australian citizen. 2. My brother and I are from VVT. I left Sri Lanka in 1988 for Australia, sponsored by my husband Manogharan Sivaguru. I went to India in 1987 because of the ongoing civil war. In 1991, I was in India on holiday for family weddings when [applicant S214/2003] and my father were arrested. 3. I visited my father in the police station in Uraiyure in Trichy on several occasions as well as when he was in the jail in Trichy. I remember the photograph of my father in the newspaper. His photo and that of Thevasigamany, were taken separately but printed beside each other in the newspaper.' 20 The Tribunal Member did not accept that the appellant ever came to the attention of the authorities in Sri Lanka before his family left for India in 1987. He did not accept that either the appellant or any other member of his family had been involved in activities in India which might bring the appellant to the attention of the Sri Lankan authorities if he were to return to Sri Lanka. He did not accept that there was any reason for the appellant as an individual to attract the attention of the Sri Lankan authorities on his return to Sri Lanka. He did not accept that there was a real chance that the appellant would attract the adverse attention of the Sri Lankan authorities merely because he came from Valvedditturai. He did not consider that the appellant would be at particular risk of arrest merely because he came from Valvedditturai. He did not accept that there was a real chance that he would be arrested, detained or questioned by the Sri Lankan authorities in Colombo merely because he was a Tamil who came from Jaffna. He did not find that it would be unreasonable to expect the appellant to relocate to Colombo, where there were at least 350,000 Tamils. 21 Before reaching these conclusions the Tribunal drew attention to numerous inconsistencies in the appellant's evidence with regard to his experiences in India. In his findings and reasons the Tribunal Member said amongst other things: '… I consider that the Applicant fabricated these incidents in response to the rejection of his original application, in order to provide some substance for his claimed fear of being persecuted if he returns to Sri Lanka. I … do not accept that the Applicant was a close friend of Mahendrarajah, alias Mahattaya, the former deputy leader of the LTTE. … … … When I asked why the Applicant had not mentioned the newspaper article in his original statement he said that he had not had it at the time. He contradicted himself as to whether he had had the newspaper article when he had produced the court documents to the Department but I consider that the truth is that he did not have the newspaper article at that time (and did not mention the allegations contained in it) because it too is a fabrication. … … The contradictions between the account originally given by the Applicant and the account which he now gives once again lead me to conclude that he has modified his account after receiving the supposed documentary corroboration of his evidence and that the newspaper article, like the purported court documents, is a fabrication. I do not accept that the Applicant would have failed to mention the supposed connection with the Pathmanabha murder case either in his original statement or in his letter dated 25 October 1996 if it were indeed true that his father had been arrested in connection with that case, as is implied by the newspaper article which he has produced.' 22 In the foregoing context the Tribunal Member dealt with the statutory declaration of the sister said to have been made on 14 October 1998 and forwarded to the Tribunal under cover of Mr Murphy's letter of 15 December 1998 as follows: 'After the hearing before me the Applicant's representative produced a statutory declaration from the Applicant's sister stating that she had been in India on holiday in 1991 when her father and the Applicant had been arrested and that she had visited her father in the police station in "Trichy" on several occasions as well as in the gaol in "Trichy". She said that she remembered the photograph of her father in the newspaper and that the photographs had been taken separately but printed beside each other in the newspaper. Once again I note that the Applicant did not seek that the Tribunal take evidence from his sister at the hearing before me and I have therefore not had the opportunity to observe her giving her evidence. I do not consider that the purported corroboration of the Applicant's evidence to a limited extent by his sister outweighs the view I have formed of the credibility of the Applicant on the basis of his demeanour at the hearing before me and the adverse impression I have formed as a result of the contradictions in the Applicant's own evidence in relation to his arrest and the arrest of his father. I consider that the Applicant's sister has provided her statutory declaration in an attempt to assist her brother's application for a protection visa. Having regard to the view I have formed of the credibility of the Applicant and the contradictions in his evidence regarding his arrest and that of his father, I do not accept that he and his father were arrested and I therefore do not accept the evidence of his sister that she visited her father in the police station or the gaol in "Trichy". As I have said I consider that the newspaper article which the Applicant has produced in supposed corroboration of his claims and to which the Applicant's sister also refers is a fabrication. The Applicant's representative submits that the inference to be drawn from the report of the Document Examiner is that the newspaper article is genuine. I do not agree. It is genuine in the same sense that the Applicant's Indian passport is genuine: that is, it is to all appearances genuine but the content of it is a fiction. Just as the Applicant is not a national of India, born in Tiruchirappalli, as his apparently genuine Indian passport suggests, so I do not accept that there is any truth in the substance of the newspaper article which the Applicant has produced, having regard to the Applicant's signal failure to mention any connection between the arrest of his father and the Pathmanabha murder case (or indeed the existence of the newspaper article) until such time as he received the supposed newspaper article. I am therefore compelled to conclude that the Applicant's sister is a party to the attempt to deceive the Tribunal since she states in her statutory declaration that she remembers the photograph of her father in the newspaper. … … I consider that the newspaper article in its entirety is a fabrication. … In summary, I conclude that the Applicant's entire account of his and his father's arrest in India, his subsequent detention and mistreatment and his father's imprisonment, is an invention. …' 23 The alleged denial of procedural fairness upon which the appellant relies is the Tribunal's failure to warn the appellant that the evidence of the appellant's sister in respect of the events said to have occurred in India in 1991 could not be accepted and that she was involved in an attempt to deceive the Tribunal. 24 The primary judge dealt with the matter in his reasons for judgment of 7 April 2006 at [33]-[34] as follows: '33 At the end of day, the applicant complained that the Tribunal did not warn him that it would find that the corroborating evidence of his sister had been fabricated. The simple answer to that contention is that it was not obliged to do so. The applicant had the critical issue, viz., the authenticity of the newspaper article, drawn to his attention. He proffered further evidence on this point, including the sister's statutory declaration, which was rejected. There was no requirement for the Tribunal, acting in an inquisitorial capacity, to go back to the applicant warning him that this was one of the reasons why it would ultimately reject the newspaper article. 34 … It was for the applicant to place such material as was necessary to persuade the Tribunal of his claims before the Tribunal. The Tribunal was under no obligation to verify or investigate the applicant's claims, including by calling his sister as a witness. The Tribunal has no duty to investigate, nor any duty to consider utilising such permissive statutory powers as it had which might enable it to investigate (e.g. s 427(1)(d)): WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25]. Even if the applicant had made a request under s 426 that the sister be called (which he did not) the Tribunal would not have been obliged to do more than have regard to the applicant's wishes. The Tribunal did not commit jurisdictional error by failing to call the applicant's sister as a witness, or by making the findings it did, having not called the sister as a witness.' 25 We are unable to discern any error in the primary judge's reasoning. 26 Proceedings before the Tribunal are inquisitorial rather than adversarial. A Tribunal member conducting an enquiry is obliged to be fair. However, the Tribunal is not in the position of a contradictor of a case being advanced by an applicant. In a case such as that brought by the appellant under his application for review to the Tribunal, it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a refugee, within the meaning of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ('the Refugees Convention') had been made out. The Tribunal was not obliged to prompt and stimulate an elaboration which the appellant may have chosen not to embark upon. The rule of fairness expressed in Browne v Dunn (1894) 6 R 67 has no application to proceedings in the Tribunal (per Gummow and Heydon JJ in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte applicant S154/2002 ('Re Ruddock')(2003) 201 ALR 437 at [57]-[58]). 27 In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 591 - 2 Northrop, Miles and French JJ said: 'Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.' 28 The Tribunal Member was not obliged to set out every detail of the reasoning process which he eventually employed for the appellant's consideration (per Gummow and Heydon in Re Ruddock at [54]). 29 In WACO v Minister for Immigration and Multicultural and Indigenous Affairs ('WACO') (2003) 131 FCR 511 Lee, Hill and Carr JJ said in relation to the question of whether the Tribunal is bound to raise with an applicant its doubts about the genuineness of documents, such as the newspaper article in the present case, at [42]: '… An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant's comment (Abebe v Commonwealth (1999) 197 CLR 510 per Callinan J at 608). However, the tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend. It is clear that the question whether the letters were genuine was a matter which went directly to the most critical issue in the case, namely the appellant's relationship with Ayatollah Shirazi. It was upon this relationship that the claim that the appellant had a well-founded fear of persecution for a convention reason rested.' 30 The appellant submits that the present case falls fairly and squarely within the last mentioned statement of principle asserting that the Tribunal had 'a duty to raise clearly with the appellant the critical issues on which his … application might depend'. The genuineness of the appellant's sister's Statutory Declaration was never in issue. The relevant 'critical issue' for the appellant was whether the events, recounted by him as having taken place in India in 1991, in fact occurred. On this issue the appellant's account was of particular importance, as was the alleged newspaper article said to have been a report on the occurrence. The matters deposed to within the sister's statutory declaration were germane but not critical. She gave no evidence about having purchased a newspaper containing the alleged article, nor did she give any description of 'the newspaper' or the time and place at which she saw it, if, indeed, she did. As the Tribunal Member observed, the appellant did not seek to have his sister give evidence. 31 In WACO the Tribunal rejected letters as not being genuine which had been forwarded to the Tribunal following an invitation from the Tribunal to provide additional information about a religious association which it had told the appellant it would be unlikely to accept on the evidence then before it. The letters were central to the appellant's claim (see [12] and [38]-[39]). At [53]-[54] the Court said: '53 In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant insofar as the finding is that the letters have been concocted by the appellant to advance his case. But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations. Forgery, indeed, is a criminal offence. 54 Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.' 32 In WACOthe Court concluded at [70], that the appellant had: '… succeeded in showing that the purported decision of the Tribunal was affected by jurisdictional error, in that the Tribunal had not afforded natural justice to the appellant by failing to give the appellant the opportunity to answer the suggestion that the letters tendered by him after the hearing were not genuine'. Accordingly, the Court ordered that a writ of certiorari issue quashing the decision of the Tribunal. The application for review was then remitted to the Tribunal for further determination according to law. 33 In WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87, Carr and Tamberlin JJ, said at [62]: 'In WACOthe Tribunal rejected letters, which had been submitted after the hearing before it, as not being genuine. Those letters had been forwarded to it following the Tribunal's invitation to provide additional information about a religious association which it had told the appellant it would be unlikely to accept on the evidence then before it. The letters were central to the appellant's claim - see par [38]. In this matter the Letter was already in evidence before the Tribunal. The Tribunal made it clear to the appellant that it had difficulty accepting the factual claims made in the Letter. Where procedural fairness is in issue the precise factual circumstances are, of course, of critical importance. In our view, the factual distinction to which we have referred makes this case relevantly different to the circumstances in WACO. The appellant in this matter was not, in our opinion, denied procedural fairness.' As in WAHP, the factual circumstances and the approach taken by the Tribunal, are sufficient to distinguish the present case from the findings made by the Court in WACO. 34 The findings of the Tribunal in respect of the motivation of the appellant's sister for making her statutory declaration were not directed at the resolution of the 'critical issue' in question. It is true that the statutory declaration purported to offer some level of corroboration of the appellant's claims, but the Tribunal Member did not consider that this outweighed the views he had already formed in the course of the hearing about the credibility of the claims. 35 It should be recalled that in the Tribunal Member's reasons for decision, as quoted above at [22], he said: 'Having regard to the view I have formed of the credibility of the Applicant and the contradictions in his evidence regarding his arrest and that of his father, I do not accept that he and his father were arrested …' 36 He then continued: '… and I therefore do not accept the evidence of his sister that she visited her father in the police station or the gaol in "Trichy".' 37 The Tribunal Member also said: 'I do not consider that the purported corroboration of the Applicant's evidence to a limited extent by his sister outweighs the view I have formed of the credibility of the Applicant on the basis of his demeanour at the hearing before me and the adverse impression I have formed as a result of the contradictions in the Applicant's own evidence in relation to his arrest and the arrest of his father.' 38 It can be seen that the matter which was pivotal to the Tribunal Member's reasoning was that he simply did not believe the appellant's account of what was said to have occurred concerning the detention of himself and his father in India in 1991. 39 Whilst it may have been inappropriate for the Tribunal Member to go so far as to find that the appellant's sister was a party to a fraud on the Tribunal, it is appropriate to observe that the Tribunal Member's reasoning was predicated upon an observation that she claimed to have remembered seeing a photograph of her father in the newspaper article which the Tribunal Member found to have been fabricated. 40 In our opinion it was not inherently unfair for the Tribunal Member to conclude that the observations of the appellant's sister were unacceptable without affording the appellant an opportunity of dealing with such a conclusion. The acceptance or otherwise of the facts and matters contained in the appellant's sister's statutory declaration was a necessary step in the reasons for decision of the Tribunal Member. However, it was open to the Tribunal to reject that evidence without further warning the appellant that the evidence may not be accepted. The reasons for this are clearly stated in [33] - [34] of the learned primary judge's reasons which we have reproduced above at [24]. 41 Accordingly, there was no jurisdictional error on the part of the Tribunal. In the circumstances, the appeal should be dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Allsop, Jacobson and Graham.