Applicants S 194 of 2002 v Refugee Review Tribunal

60 I will refer to these documents collectively as "the adverse materials". 61 In his affidavit affirmed on 28 October 2002, the primary applicant states that he did not receive and was not aware of the substance of the contents of the adverse materials (with the exception of part of CX32897) before the decision of the RRT was handed down. 62 The primary applicant also states in his affidavit of 28 October 2002 that if he had been aware of the adverse materials, he would have done something to answer them. In particular, he says that he would have arranged for his migration agent or solicitor to make further submissions to the RRT with a view to seeking to highlight those parts of the documents which assisted his case and to challenge those parts which were adverse to his case. 63 The primary applicant also says that he would have sought to bring before the RRT additional evidence to the effect that it was unsafe for him to return home and that he would have undertaken research or further research to obtain additional information or documents favourable to Hindu priests. The primary applicant provided examples of documentary evidence that he would otherwise have led before the RRT. 64 The documents which comprise the adverse materials are items of country information about Sri Lanka. They contain information which is not specifically about the primary applicant and is just about a class of persons of which the primary applicant is a member; see s 424(3)(a) of the Act. However, the decision of the RRT was handed down before the enactment of s 424A. 65 Accordingly, it seems to me that in so far as the adverse materials contained propositions unfavourable to the primary applicant's case which the RRT intended to rely upon to make findings against him, it was bound to give the primary applicant a reasonable opportunity to answer those propositions; see Muin v Refugee Review Tribunal (2002) 76 ALJR 966 ('Muin') at [64] per Gaudron J, cf at [266] and [268] per Hayne J; see also Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 ('Lam') at [81] - [83] per McHugh and Gummow JJ and at [150] per Callinan J. 66 However, an analysis of the adverse materials shows that, with one exception, the unfavourable propositions in those documents were either put to the primary applicant by the RRT or were not relied upon by the RRT as part of its reasons for affirming the decision of the delegate. I will deal with each of the documents comprising the adverse materials seriatim. 67 The RRT relied on three propositions unfavourable to the primary applicant's case which it drew from CX32897 but each of the propositions was put to the primary applicant and he was given an opportunity to respond. The RRT recorded this in the reasons for its decision. I referred to what the RRT said at [32] - [37] above. 68 The RRT also relied on a proposition unfavourable to the primary applicant which it drew from CX28740. This was that the primary applicant would not be persecuted merely because he was a Hindu priest. However, the RRT stated that it put this proposition to the primary applicant and it recorded his response. I referred to what the RRT said about this at [39] - [41] above. 69 The RRT referred in its reasons to a proposition taken from CX28768 namely that the LTTE was attacking cities in the south and as a result there was a tighter security situation in Colombo which was felt especially by Tamils. 70 This proposition does not seem to have been put the primary applicant but it was unnecessary for the RRT to do so because the proposition was favourable to the primary applicant's case. I referred to what the RRT said about CX28768 at [43] - [44]. 71 The RRT dealt in its reasons with a proposition taken from CX12970 namely that persons most at risk from detention were young Tamils recently arrived from the north. But it cannot be suggested that the RRT was bound to put this proposition to the primary applicant because it is plain that the substance of the document was referred to by the primary applicant's migration agent in a submission to the RRT dated 4 April 1999. 72 I referred at [45] and [58] to what the RRT said about CX12970. It is clear from the passage which I have set out at [58] that the RRT dealt with the submission put to the primary applicant's migrant agent about this document. In my view it is plain that there was no denial of procedural fairness in relation to CX12970. 73 The RRT referred to two propositions from CX29633. The first was that there had been no reports of disappearances in police custody in Colombo for twelve months. In fact, the document states that there had been no reports of disappearances in Jaffna for over twelve months. A similar statement was contained in CX32897 and this proposition was put to the primary applicant; see [33] - [34] above. 74 The second proposition, which is recorded in the passage which I have set out in [47] above, was that half of the people in detention in Colombo were mistreated and in a small number of cases the mistreatment was serious. This proposition does not seem to have been put to the primary applicant but it was unnecessary to do so because the statement was favourable to the primary applicant's case. 75 Counsel for the primary applicant pointed out that there were two favourable portions of CX29633 to which the primary applicant's attention was not drawn by the RRT. 76 The first favourable remark appeared after the statement in CX29633 that there had been no reports of disappearances in Jaffna since 1997. 77 The full text of the relevant paragraph is as follows:- "There have been no reports of disappearances on the Jaffna Peninsula since July 1997. However, there are at least 379 cases of disappearances which took place in Jaffna in 1996 which have never been accounted for, despite the work of a military board of investigation set up by the Government. International organisations present in Jaffna consider the missing people are probably dead." (emphasis added) 78 In my view there was no obligation on the RRT to draw to the primary applicant's attention materials favourable to his claims. Although procedural fairness required that the primary applicant be given a reasonable opportunity to place before the RRT material in support of his claims, it was for him to make good his claim that he was entitled to protection; see Muin at [265] - [266] per Hayne J; SBBA v Minister for Immigration & Multicultural Affairs [2003] FCAFC 90; Minister for Immigration & Multicultural Affairs v Islam [2001] FCA 1681; Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 at [13]. 79 However, it seems to me that procedural fairness would have required the RRT to draw the bold portion of CX29633 to the primary applicant's attention if the effect of that part of the document was to render misleading the statement that there were no reports of disappearances since July 1977. If that were so, there would have been a denial of procedural fairness because the primary applicant could not have had an opportunity to deal with the proposition if it was stated in a misleading fashion. 80 But in my opinion, what was put to the primary applicant was not misleading. The RRT's statement dealt with the current position in Jaffna. The emphasised portion referred to the position in the previous year. I do not see that what occurred in the previous year so qualified the current situation as to render the RRT's statement misleading. 81 Thus, all that the RRT omitted to tell the primary applicant was information which was favourable to him. As I have said, there was no obligation on the RRT to provide this information to the primary applicant. 82 The second favourable remark in CX29633 was as follows: "By contrast, the situation in the East and the North is more bleak, and there are concerns about the mistreatment of detainees on the Jaffna Peninsula. While the rate of arrests in Jaffna is fairly low and military intelligence is reliable, it is estimated that almost all detainees are seriously mistreated or tortured while in military camps." 83 As I have pointed out above, it does not seem to be that, in the absence of anything which may have misled the primary applicant about the existence of the document or its contents, there was any obligation to draw it to the primary applicant's attention. 84 The last of the adverse materials documents was CX12546. I set out at [56] the passage in which the RRT referred to the document. 85 The effect of the document was that two Catholic priests had been arrested while attempting to enter LTTE controlled territory with large amounts of undeclared cash. That is to say, the substance of the document is that they were arrested on suspicion of assisting the LTTE. 86 It is evident from the passage which I have set out at [56] that the RRT used CX12546 to draw an adverse inference against the primary applicant's case, namely that priests, whether they be Catholic or Hindu, who were arrested, were apprehended because they were suspected of assisting the LTTE. 87 This proposition was not put to the primary applicant. It is a different proposition from the one which was put on the basis of CX28740, as to which see [39] - [41] and [68]. In my opinion, it follows that he was denied procedural fairness because he was not given an opportunity to meet an important plank in the RRT's reasons for dismissing his claim. 88 There was evidence before me as to documents which the primary applicant or his advisers could have submitted to the RRT had they known that CX12546 would be applied unfavourably to the primary applicant's claim. The first document was an internet journal article entitled "News from Tamil Eelam - 12.03.1997 - Arm the Spirit". The article contains the following passage after a subheading "Jaffna Priest Hangs Himself in Temple":- "The Hindu priest of a Jaffna temple has committed suicide on the premises after failing to trace his brother who was arrested last week by the Sri Lankan army. His brother - also a priest of the Meesalai Vellaimavady Ganesh Temple - was arrested on frivolous charges as part of the Sinhala-Buddhist army's routine harassment of the Hindu clergy." 89 The second document was an article which appeared in "The Toronto Star" on 27 February 1999. The article was entitled "Tamil war casts long shadow". It included a passage as follows:- "Religion has been a factor in the war, with the Sinhalese Buddhist clergy supporting a Sri Lankan government hard line against Tamil separatism. The mostly Hindu Tamils support the Liberation Tigers of Tamil Eelam, who have been fighting for a separate Tamil homeland since 1972 to secure rights for Tamil language and culture. Many Christians also support the Tamil Tigers." 90 It follows, in my opinion, that the primary applicant was denied an opportunity to answer the finding which the RRT made, in part on the basis of CX12546, that Hindu priests are not persecuted merely by reason of the fact that they are priests. 91 I cannot conclude that the denial of that opportunity made no difference to the outcome of the proceedings before the RRT; see Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 204 CLR 82 ("Aala"). 92 Thus, the adverse documents case succeeds in relation to CX12546 but it fails in relation to all of the other adverse materials.

The favourable documents case 93 It seems to me to be plain that the Part B document was very favourable to the primary applicant's claim. I have set out the salient passage at [9] above. 94 The Minister did not contend that the Part B document was not considered by the Secretary of the Department to be relevant to the review of the delegate's decision by the RRT. There was no question but that the Secretary was required to give the Part B document to the Registrar of the RRT in accordance with s 418(3) of the Act. 95 The first question which then arises is whether I should draw an inference that the Part B document was not "given" to the RRT. 96 In Muin it was an agreed fact that the Department's file was sent to the Registrar and that the file did not include hard copies of the Part B documents. A majority of the Justices of the court were prepared to draw an inference from the agreed facts that the RRT did not have and did not have regard to the Part B documents in those proceedings; see e.g. at [60] per Gaudron J. 97 Here, although it appears from the RRT's reasons that the RRT had the Department's file, it was not an agreed fact that a hard copy of the Part B document was not given to the Registrar. However, for the reasons set out below, I am prepared to draw the same inference as was drawn by the majority in Muin that the RRT neither had nor had regard to the Part B document. 98 In my opinion this inference should be drawn because the document was material to the primary applicant's claim but it was not mentioned in the RRT's reasons. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69], McHugh, Gummow and Hayne JJ said that a court is entitled to infer that a matter not mentioned in a s 430 statement was not considered to be material. Yet here, the Part B document was in my opinion so obviously material that the failure to refer to it gives rise to an inference that the RRT did not mention it because the Part B document was not put before the RRT. 99 Moreover, the way the Part B document was described by the delegate in the passage which I have quoted at [14] leads me to the view that there was nothing in the delegate's decision to suggest to the RRT that the Part B document was favourable to the primary applicant's claim and ought to be considered by the RRT. 100 Rather, the delegate's acknowledgement, for which the Part B document was cited as an authority, that Hindu priests may face some resentment, misstated the gravamen of the Part B document which said in plain terms that there was a great possibility that Hindu priests may be in danger. 101 Counsel for the applicants submitted that a further reason why I should draw an inference that the document was not given to the RRT was that the Minister called no evidence as to whether the Part B document was put before the RRT or was taken into account by it. 102 There are difficulties in relying upon Jones v Dunkel (1959) 101 CLR 298 in this context because the members of the RRT enjoy the same immunity in the performance of their functions as are enjoyed by members of the judiciary; see Muin at [25] per Gleeson CJ and at [197] per Kirby J. 103 It would be destructive of this immunity to draw an inference that the RRT did not have or take the Part B document into account because no evidence was called from the RRT to that effect. 104 But it seems to me that I can take into account that there was no evidence called from the Secretary of the Department or the Registrar of the RRT that the Part B document was delivered to the RRT. Accordingly this is a further reason why I am prepared to draw the necessary inference. 105 Counsel for the Minister submitted, inter alia, that I should not draw this inference because the Part B document was included on CISNET, which is the network of information databases available to all refugee protection visa decision makers in the Department and the RRT. 106 However, it seems to me that I should reject this submission because a similar submission was rejected by the majority of the High Court in Muin. 107 The principal question which I have to determine is whether the primary applicant was misled into thinking that it was unnecessary to draw the Part B document to the RRT's attention and whether he was thereby denied procedural fairness. 108 The primary applicant gave evidence that he had been misled and of the steps he would have taken had he been aware of the fact that the Part B document had not been physically transferred to the RRT. 109 He affirmed in his affidavits that, when he read the letters from the RRT dated 4 August 1997 and 3 February 1999, he believed that the RRT had received and had considered the Part B document. The primary applicant also affirmed that had he been aware prior to the making of the RRT's decision that the Part B document had not been physically sent to the RRT, he would have taken a number of steps to counter this situation. 110 The steps which the primary applicant says he would have taken to overcome the absence of the Part B document were set out in his affidavit of 1 November 2002. They were that he would have:- · sought production of the part B document · arranged to have a migration agent or solicitor act for him to make submissions as to how the part B document assisted his case. · sought to bring before the RRT additional evidence to the effect that it was unsafe for him to return to Sri Lanka. · undertaken research and submitted information or documents which were favourable to Hindu priests such as a decision of the RRT in another application which was specified in the affidavit. 111 The primary applicant was cross-examined effectively on three aspects of his affidavit evidence. The first was as to whether he in fact held the belief that the RRT had the Part B document. The second was that paragraph 29 of his affidavit of 28 October 2002 was strikingly similar to the agreed facts in Muin. The third was as to what he said he would have done to meet the absence of the Part B document. 112 When the primary applicant was cross-examined as to his alleged belief that the RRT had the Part B document, I had doubts as to whether I could accept his evidence. However, having read and re-read the transcript, I have come to the view that the primary applicant did in fact have a belief that the RRT had received documents which were favourable to his case and which were held by the Department. 113 I do not think he had a "clear belief" in the precise terms to which he deposed in his affidavits but, in my opinion, he did have a belief in general terms that the RRT had favourable documents including the Part B document. 114 The primary applicant had a migration agent acting for him when he received the letter of 4 August 1997. He had a different migration agent, Mr Selliah, when he received the letter of 3 February 1999. He contacted his first agent when he received the earlier letter and he contacted Mr Selliah when he received the later letter. 115 The primary applicant said in cross-examination that when those letters were explained to him, he thought he would have to take action to stay in Australia but, initially, he made no mention of his beliefs that the Part B document had been sent to the RRT. However, when he was pressed, he did not resile from his evidence that he held a belief that the RRT would have "gone through all my papers". In my opinion, he was telling the truth when he gave that evidence as to his belief under cross-examination. 116 It seems to me that it is plain that the primary applicant was relying on his migration agent at the time and that the migration agent would, in each case, have explained the letter to him. I do not think that when he told me that he knew he would have to take further action, this necessarily excluded a belief on his part that the Part B document was in the hands of the RRT. 117 The similarity between the evidence which the primary applicant gave in paragraph 29 of his affidavit of 28 October 2002 and the agreed facts in Muin was troubling. Mr Selliah's evidence under cross-examination as to the circumstances in which the affidavit was prepared was not convincing. The primary applicant speaks little or no English. He appeared to have little understanding of the proceedings. In my view, it is plain that the primary applicant left it to Mr Selliah and/or his solicitors and barristers to prepare the affidavit. I accept the primary applicant's evidence that his advisers knew his position and he trusted them to prepare the affidavit for him in a language that he can neither read nor understand. 118 Accordingly, I have come to the view that the similarity between the affidavit evidence and the evidence in Muin should not result in an adverse credit finding against the primary applicant. 119 Finally, I accept that the primary applicant would have taken steps to the effect of most of the steps set out in paragraph 10 of his affidavit of 1 November 2002. 120 The Part B document was so obviously favourable to the primary applicant's claim that, in my opinion, had he been aware that it was not physically before the RRT, he would have, through his migration agents, taken steps along the lines of those set out in paragraphs 10(a), (b) and (c) of his affidavit. 121 Thus, in my opinion, the primary applicant lost an opportunity to put before the RRT a document which might have influenced the decision maker to decide the application differently. Certainly, I cannot be satisfied that the Part B document would have made no difference to the outcome of the proceeding. 122 The primary applicant lost the opportunity to put a case based on the Part B document because he was misled by the letters of 4 August 1997 and 3 February 1999 into thinking that favourable documents which were before the delegate would also be before the RRT and he relied to his detriment on this. 123 This is not a case in which it can be said that the primary applicant suffered no "practical injustice" by reason of the opportunity which he lost to put submissions before the RRT upon the basis of the favourable material in the Part B document; cf Lam at [37] per Gleeson CJ. ORDERS 124 It follows in my opinion that the primary applicant is entitled to succeed on one aspect of the adverse documents case, namely CX12546. He is also entitled to succeed on the favourable documents case. I therefore propose to issue constitutional writs in accordance with the draft order nisi filed by the applicants. I also propose to make an order extending time for the making of this application to the date on which it was filed. I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate: Dated: 19 June 2003 Counsel for the Applicant: M A Robinson & D Carroll

Solicitor for the Respondent: Australian Government Solicitor