Applicants S 194 of 2002 v Refugee Review Tribunal

REASONS FOR JUDGMENT Introduction 1 This is an application for the issue of constitutional writs under s 75(v) of the Constitution. The applicants also seek an extension of time for the making of this application. 2 The primary applicant is a Tamil Hindu priest from Sri Lanka. The remaining applicants are his wife and three children. I will refer to him as "the primary applicant". 3 Proceedings were commenced in the High Court on 27 May 2002. They were remitted to this Court by her Honour, Justice Gaudron, on 4 November 2002 under s 44 of the Judiciary Act 1903 (Cth). 4 The applicants seek prohibition directed to the second respondent ("the Minister") and certiorariand mandamus directed to the first respondent ("the RRT") effected at quashing and preventing enforcement of a decision of the RRT made on 14 May 1999. 5 In that decision, the RRT affirmed a decision of a delegate of the Minister made on 16 July 1997 refusing the grant of protection visas to the applicants. 6 The applicants claim that the decision of the RRT was affected by jurisdictional error by reason of denial of procedural fairness on two grounds. 7 The first ground is that it is said that the RRT took into account documents and matters adverse to the applicants being country information contained in six cables and reports of the Commonwealth Department of Foreign Affairs without notice first being given to the applicants and without providing them with copies. I will refer to this as "the adverse documents case". 8 The second ground is that the applicants say they were misled by letters to them from the RRT dated 4 August 1997 and 3 February 1999 into believing that a favourable document which had been before the Minister's delegate would be given to the RRT. The applicants say that the document was not sent to the RRT. 9 The favourable document was a country information report dated 19 February 1996 provided to the RRT from the Department of Anthropology and Archaeology, James Cook University of North Queensland. It is document No CX16598. I will refer to this document as "the Part B document". It includes the following salient passage:- "There is certainly a great possibility that Tamil Hindu priests in Colombo might be in danger if not from Sinhala authorities possibly from the general population. Tamil priests have been attacked in the past. There is every possibility that Tamil priests in Colombo could be in some danger from the LTTE." 10 The reference in the document to the LTTE was to the "Liberation Tigers of Tamil Eelam". I will also refer to this as "the LTTE". 11 I will refer to the second ground on which the application is made as "the favourable documents case". Background Facts 12 The primary applicant was born on 11 August 1951 in the city of Jaffna in the Northern Province of Sri Lanka. This is an area where the LTTE is active and has, at various times, held control. 13 The primary applicant and his family first arrived in Australia in 1995. He and his wife and children applied for protection visas on 16 May 1996. The primary applicant claimed to have a well-founded fear of persecution on the ground of race, namely Tamil, imputed political opinion, mainly support for the LTTE and membership of a particular social group, namely Hindu priests. 14 On 16 July 1997, the Minister's delegate refused the application for protection visas. The delegate referred in her decision to the Part B document in the following passage:- "I do not consider that the applicant's position as a priest necessarily places him in a situation of danger from either the LTTE or the authorities. Although I acknowledge that (CX16598) Hindu priests may face some resentment from some Sinhalese …" 15 On 4 August 1997, the applicants applied to the RRT for a review of the delegate's decision. 16 On the same day, 4 August 1997, the RRT wrote to the primary applicant acknowledging receipt of the application. The letter stated:- "The Tribunal has asked the Department to send a copy of its documents about your case to the Tribunal. When we receive the Department's documents, the Tribunal will look at them along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour immediately. This is known as "review on the papers". If the initial "review of the papers" does not result in a decision in your favour, you will be offered an opportunity to attend a hearing to give oral evidence to the Tribunal. Some hearings are conducted by video or telephone conference." 17 On 3 February 1999, the RRT's presiding member came to the view that he was not prepared to make a decision favourable to the primary applicant on the papers. 18 On 3 February 1999, the RRT wrote to the primary applicant in the following terms:- "The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now entitled to come to a hearing of the Tribunal to give oral evidence in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person." 19 On 15 April 1999, the applicant appeared before the RRT to give oral evidence. He was assisted by a Tamil interpreter and by his migration agent, Mr Selliah. 20 On 14 May 1999, the RRT gave its decision affirming the decision of the delegate. I will refer below in some detail to the reasons for the decision of the RRT. 21 The primary applicant sought judicial review of the decision of the RRT. On 4 February 2000, O'Connor J ordered that the application be dismissed. 22 An appeal from her Honour's judgment was dismissed by a Full Court (Heerey, Moore and Goldberg JJ) on 15 December 2000. 23 Special leave to appeal to the High Court was refused on 20 November 2001. 24 On about 21 December 2001, the primary applicant requested a more favourable decision from the Minister under s 417 of the Migration Act 1958 (Cth) ("the Act"). The request was refused on about 12 April 2002. The Claims and Evidence of the Primary Applicant before the RRT 25 The primary applicant was the only applicant who made special claims to refugee status under the Convention. His wife and children claimed as members of the primary applicant's family. 26 The primary applicant claimed that he had left Sri Lanka to escape persecution at the hands of the government security forces and also at the hands of the LTTE. He said that he would be arrested, tortured and put to death because he was a Tamil and had lived in the area under the control of the LTTE. 27 The primary applicant gave evidence of a number of incidents of alleged persecution. These incidents included numerous arrests and assaults by the security forces between 1984 and 1999 for the purpose of extracting information from the primary applicant about LTTE hideouts. He also gave evidence of a number of arrests in Colombo in 1995. 28 The primary applicant's representatives at the hearing submitted that the delegate was wrong in concluding that the primary applicant was not at risk as a Hindu priest. It was submitted on behalf of the primary applicant that priests have been persecuted by the LTTE and the government because of the position of Hindu priests as peacemakers. 29 It was also submitted that the primary applicant would be readily identifiable in Colombo as a Tamil Hindu priest by his clothing and facial powder. 30 The primary applicant's advisers submitted that he was particularly worried about his thirteen year old son who he said would be forcibly recruited by the LTTE if he returned to Jaffna. 31 The RRT member put to the primary applicant that he said in his statement that he had only been arrested once in Colombo in August or September 1995 but, at the oral hearing, he said at first that he had been arrested twice and, later, that he had been arrested three times. 32 The RRT member also put it to the primary applicant that the Australian Department of Foreign Affairs and Trade had advised that, despite the activities of the LTTE, the army in Jaffna had maintained a commendable level of discipline. This was a reference to DFAT country information report No 440/98 dated 30 November 1998, Document No CX 32897 ("CX32897") which is one of the documents relied upon by the applicants in the adverse documents case. 33 The RRT stated in its reasons, and apparently put to the primary applicant, that there had been no disappearances of civilians from Police or Security Forces in Jaffna since July 1997. This also was a reference to CX32897. 34 The RRT recorded that the primary applicant said in response to this that "even today" there was news in the papers that many persons had gone missing. The RRT noted that there was nothing in the evidence adduced by the primary applicant which would support this submission. 35 The RRT member also put to the primary applicant that DFAT had advised that arrests mainly took place during raids on houses conducted on the basis of military intelligence. This was a further reference to CX32897. The RRT recorded that the primary applicant responded that this was ultimately what they said but, in fact, a lot of incidents did take place. 36 The RRT member took this question further. He put it to the primary applicant that having regard to the information in CX32897 he did not consider that the primary applicant would be in danger if he returned to Jaffna merely because he lived there while it was under the control of the LTTE. The RRT member noted that the vast majority of the population of Jaffna lived in the area during that period. 37 In response, the primary applicant said he could be arrested at any time. He referred to the possibility of arrest of his thirteen year old son. 38 The RRT member then turned in the section of his decision which dealt with the RRT's evidence, to the claim that the primary applicant would be persecuted by reason of being a Hindu priest. He referred to the press clippings submitted by the primary applicant's advisers. 39 However, the RRT member stated in this section of his reasons that the evidence did not establish that Hindu priests had been arrested merely because they were priests. The RRT member stated that the information available to him suggested that the Sri Lankan Government respected freedom of religion. Normal religious ceremonies were said to be taking place in Jaffna at that time. 40 The last mentioned observation was followed by a reference to an item of country information in Asiaweek, 7 November 1997, Document No CX28740 ("CX28740") which is one of the documents relied upon in the adverse documents case. The RRT member's observation is supported by a reading of CX28740. 41 The RRT member stated, and seems to have put to the primary applicant, that the RRT did not accept, on the basis of CX28740 that the primary applicant would be persecuted as a Hindu priest. In response, the primary applicant reiterated his claim that he could be readily identified and this increased his chances of arrest. 42 The RRT member also put it to the primary applicant that there was no evidence which would suggest that the LTTE was forcibly recruiting young boys on the Jaffna Peninsula which was, at that time, under the control of the Sri Lankan Government. The primary applicant replied that it might appear that way on the surface but the LTTE was insistent that one member of each family should join. 43 The RRT dealt in a separate section of its reasons with the situation in Colombo by referring to a number of items of country information. It set out an extract from DFAT Cable CL821 dated 13 February 1998, Document No CX28768 ("CX28768") which is one of the documents relied upon in the adverse documents case. 44 The quote from CX28768 included a statement that there was a tighter security situation in Colombo following LTTE attacks. The tighter security situation was said to be felt especially by members of the Tamil community. 45 The RRT member noted that those at particular risk of being detained in roundups or cordon and search operations were young Tamils recently arrived from the North. Reference was made inter alia to DFAT Cable dated 19 December 1995, Document CX12970 ("CX12970") which supports the RRT's remark. 46 CX12970 is another of the documents relied upon by the applicants in the adverse documents case. 47 The RRT concluded its section on the position in Colombo with the following remarks:- "In its most recent assessment of the human rights situation in Sri Lanka the Australian Department of Foreign Affairs and Trade stated that there had been no reports of disappearances in police custody in Colombo over the past twelve months. However it was estimated that approximately half of the people in detention in Colombo were mistreated and that in a small number of cases the mistreatment was serious (DFAT cable CL855, dated 22 April 1998, CX29633)." 48 I will refer to the DFAT Cable mentioned by the RRT as "CX29633". An examination of CX29633 reveals that the above-mentioned statement made by the RRT may contain a misleading account of the content of the document. I will refer to this below. 49 The applicants rely on CX29633 as a further document in their adverse documents case. The RRT's findings and reasons for its decision 50 The RRT did not find the primary applicant an impressive witness based on his demeanour. The RRT stated that, in addition, there were significant inconsistencies in his evidence. 51 Having regard to the RRT's impression formed at the hearing, the RRT did not accept the primary applicant as a witness of truth. 52 The RRT had regard to the fact that the primary applicant returned to Sri Lanka twice after coming to Australia and also to his delay in lodging his application for a protection visa in coming to the view that the primary applicant did not genuinely fear that he would be persecuted for Convention reasons if he returned to Sri Lanka. 53 Moreover, having regard to the RRT's opinion of the primary applicant's credibility, it did not accept his evidence of arrests, assault and torture in the period from 1984 to 1989. 54 Also, the RRT did not accept the applicant's evidence of his arrests in Colombo in August or September 1995. It regarded as implausible the primary applicant's evidence that he had forgotten about the third arrest. The RRT came to this view notwithstanding what, on its face, appeared to be corroboration in a facsimile. The RRT considered the facsimile to be a fabrication. 55 The RRT relied upon CX32897 to support a finding which it made that arrests are not random or arbitrary. It found that there was nothing in the evidence to suggest the primary applicant would be arrested if he returned to Jaffna. It regarded the primary applicant's assertions to the contrary as self-serving and not supported by the country information. 56 The RRT rejected the submission that the primary applicant would be at risk of arrest because he is a Hindu priest. The RRT's finding is important and I will set it out as follows:- "The Applicant's representatives suggested that the Applicant would be at specific risk of arrest because he is a Hindu priest but there is nothing in the information available to me to suggest that the Sri Lankan police or army are arresting Hindu priests because they are Hindu priests. The Applicant's representatives have referred to reports of cases in which Hindu priests have been arrested and I accept that this has occurred. However, as I noted in the course of the hearing before me, this does not mean that the Hindu priests in question were arrested by reason of their membership of the particular social group…Catholic priests have likewise been arrested on occasion on suspicion of assisting the LTTE (see DFAT cable CL38147, dated 8 November 1995, CX12546). However I do not accept that the fact that one can point to instances where priests, or any other similar occupational group for that matter, have been arrested on suspicion of assisting the LTTE means that the members of that group are being arrested by reason of their membership of that group rather than by reason of the suspicion (which may or may not turn out to be well-founded) that they have been assisting the LTTE. I likewise do not consider that the evidence before me supports the submission that Hindu priests as a group are at particular risk of being suspected of assisting the LTTE merely by reason of the fact that they are priests." 57 The RRT also rejected the primary applicant's claim that he had a genuine fear that his thirteen year old son would be forcibly recruited by the LTTE. The RRT made this finding primarily on credibility grounds. 58 The RRT accepted that in order to return to Jaffna, the primary applicant and his family would have to land at Colombo International Airport. The RRT noted country information in documents such as CX12970 that the persons principally at risk of arrest were young Tamils recently arrived from the North and East. The RRT rejected the claim that this gave rise to a well-founded fear in the following passage:- "As the Applicants' representatives submitted, this does not mean that all other Tamils from the Jaffna Peninsula are at no risk of persecution but it is relevant to the assessment whether there is a real chance, or only a remote chance, that they will be persecuted. Since the applicant is in his forties and since neither he nor his 13 year old son will have recently arrived from the North if they return to Colombo now, I do not accept that they come within the category of those who are at particular risk of being arrested in Colombo." The Adverse Documents Case 59 The documents on which the applicants relied to support the adverse materials case are as follows:- CX 32897 CX28740 CX28768 CX12970 CX29633 CX12546