M152 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

The applicant's first ground: failure to put an adverse finding to the applicant for comment 11 It is to be noted that, on his own evidence, the applicant, while claiming to have been instrumental in the apprehension of the two men allegedly plotting to assassinate a member of parliament, played no discernible part in their subsequent trial and conviction. There is nothing inherently unlikely in a police informant's providing hearsay information to police about two persons identifiable by criminal or underworld nicknames or aliases, which, when investigated, results in charges being laid and the later conviction of the suspects. It is perhaps, open to question, how such a preliminary and anonymous, although essential involvement would lead to those criminals having knowledge of the applicant's role. The Tribunal appears to have doubted the applicant's evidence for two reasons; (1) that the applicant took no further interest in proceedings against these men, learning nothing of their proper names, or where they were tried, or of what they were eventually convicted; and (2) the further information eventually offered in relation to these men's convictions did not, on its face, substantiate the applicant's claim - making reference, as it did, to convictions not apparently related to the plot which the applicant's information allegedly foiled, and to aliases other than those supplied by the applicant. The applicant frames his first objection by contending that the Tribunal rejected the whole of his case, in relation to the two men, on the premise that he had failed to give the police more than their nicknames. That is to misrepresent both the Tribunal's reasons and the line of questioning pursued by the Tribunal member during the hearing. In my opinion, it was, in context, clearly put to the applicant that there was a difficulty with his case in the absence of any information at all, other than his oral evidence about the trial of these two men, when, on his case, he had not been called to give evidence at the trial of the men and did not know anything about where or when they were tried, what the charges were, or what sentences they received. The Tribunal is recorded as having said (transcript p 19): 'Really what I am putting to you is, there is an absence of evidence about these people coming before the courts and if you don't know their name (sic), then it is difficult to deal with that. And I suppose I am putting to you that I am surprised you don't know their names -' 12 A similar question from the Tribunal appears to have been commenced at the bottom of p 19, but the transcript is missing a period of seconds between the end of one side of a tape and the beginning of the next. By a persistent line of questioning about whether there would have been any newspaper coverage of the trial, the Tribunal made it clear to the applicant that it considered it implausible that he should be unaware of the identities of the two men or the outcome of the proceedings against them. 13 In my view, merely to fail to put to the applicant, in express terms, the self-evident proposition that it would be hard to accept his claim without any corroborating material did not amount to a denial of procedural fairness. It had been put to the applicant that the claim was "difficult to deal with" in the absence of evidence regarding the court proceedings. There was considerable discussion between the Tribunal and the applicant's representative as to whether court records might be available to substantiate the applicant's claim. This raises the applicant's second objection.

The applicant's second ground: the Tribunal misled the applicant by stating that all it required to find in his favour was the two men's names. 14 This ground is said to derive support from this exchange (emphasis added); THE TRIBUNAL: 'The matter, Mr Santi, of this court hearing in early 1992, the issue that is in my mind is that if these two gentlemen went before the Magistrates Court in Colombo, in Colombo city proper or in a neighbouring suburb, those records should be readily available in the same way as records from the Magistrates Court up the road here. And that the court records are reliable in Sri Lanka, and they may, in fact, not be difficult to obtain. So I just want to explore that a little bit.' MR SANTI: 'Yes.' THE TRIBUNAL: 'Do you have a view on that, Mr Santi?' MR SANTI: 'Yes. My understanding, you know, that in a few other cases we are asked for the case number and when there is a witness they would have some … so that is some … without a case number, that may be very helpful to us. The other thing is the accused names, full names, and the date on which they produced, these are the two ways we are able to track down. And sometimes we have the summons and we have everything there. Sometimes the ... exactly and the full name of the suspects and we write get the court record, the registrar, or we leave it with some other solicitors there to do a search, they will be able to find out. I do not know if you don't have the case number and the full name, we can ask the applicant whether he could try whether he can -' THE TRIBUNAL: 'The full name I think would be sufficient.' MR SANTI: 'Yes. Either of those two, we would be able to trace it because the work - the case load in every case is too much, so every day they hear about half a hundred-odd cases. They here a few cases but the number of cases called out, roughly about a hundred cases a day. So unless we know these details, it will not show any interest to look at - they can't simply - because most of the courts are not computerised so they have to go by the names or by the case numbers. I think it is fair to ask the applicant whether there is any other way to trace the name.' THE TRIBUNAL: 'Really what I am putting to you is, there is an absence of evidence about these people coming before the courts and if you don't know their name, then it is difficult to deal with that. And I suppose I am putting to you that I am surprised you don't know their names ---' THE APPLICANT: 'Actually they were ---' THE TRIBUNAL: '--- in a way that - yes.' THE APPLICANT: 'Sorry. They were known as - these two names, they were two underworld people so I just put that, I informed the police and the police at that time knew whom I was talking about.' … … … … … THE TRIBUNAL: 'Can I put to you that if somebody acts as an informant and that results in those people being jailed, particularly for a number of years or, indeed, for any period, that one could ---'

[At this point a portion of the transcript appears to be missing]

THE TRIBUNAL: '---do you think they may have gone before the Magistrates Court under those two names, that they might be sentenced under those two names?' THE APPLICANT: 'These two names definitely come up in ---' THE TRIBUNAL: 'Pardon?' THE APPLICANT: 'If they had a fair trial, these two names would have really come up at the trial because these are the names ---' THE TRIBUNAL: 'Would have come up?' THE APPLICANT: 'Yes, because these are the names that the entire area named them. When my friend came and told me that it was [the men in question] ... and I knew at once although I haven't met them, I knew at once whom he was referring to. And so when I went and told the police station immediately they knew who I was referring to.' THE TRIBUNAL: 'And during the time when the trial took place, was it a matter that was in the public domain, was it something that was talked about? Was it reported in the papers? Was it on the news? THE APPLICANT: No, your Honour, because that was the time that people were just having - I mean … this time where people are just imprisoned, taken, they disappear. I mean, they just disappear and nobody gets to know about them. The … past president of the …' THE TRIBUNAL: 'Can I put to you, having read many reports of news in Sri Lanka, that if two people were sentenced for a number of years for a possible assassination, that that is something that would be reported in the press.' THE APPLICANT: 'Because in this case, your Honour, the only thing I can know is that there was some leaders of the present government also involved in this plan. So in those circumstances it is definitely very, very ---' THE TRIBUNAL: 'The present government, was it in power then?' THE APPLICANT: 'No, it wasn't in power.' THE TRIBUNAL: 'So what I am putting to you, was in 1992 ---' THE APPLICANT: 'Yes.' THE TRIBUNAL: '--- when this trial took place, given the number of newspapers and the active reporting that takes place in your country, don't you think that there would have been some newspaper reports of this case?' THE APPLICANT: 'Yes, can I … I just went and told him that and ---' THE TRIBUNAL: 'Can I put to you that if you were the informant, that it would seem unusual that you didn't take any notice of whether this case was reported in the papers.' THE APPLICANT: 'Now I can see what you are trying to tell me, madam, but I don't - I can really understand now what you are putting across to me, but at that time I just informed them … for me to have followed. They were known as - they were underworld thugs so to look for them - I mean, they would follow it up, it was a big risk even though my party was involved, I just left it at that. I told the police as well. I could have told the police anything at that time and ensured that I got support because I told them I don't want my name ever to be mentioned. THE TRIBUNAL: I can understand that aspect. What I am putting to you is that the Tribunal has no evidence before it of who these two people actually were and any record of them going before the court in what would have been presumably a public trial in the Colombo Magistrates Court. The Tribunal will have a search of its data bases to see if these names come up. Mr Santi, you could perhaps turn your mind in light of this evidence today as to whether the applicant might have access to the actual names of these two gentlemen so that we could at least establish that there were two people of these names that were sentenced.' MR SANTI: 'I will think about it, madam, and also I can speak to him and see if there is ally other possibilities of exploring and are there any other … that I can … ' THE TRIBUNAL: 'Right.' … … … … … MR SANTI: 'The reason, madam, and I will also see whether I could make a few calls to Colombo and see whether my -call contact the other solicitor -whether there is anyway of doing it in these circumstances.' THE TRIBUNAL: 'Yes, all right.' MR SANTI: 'Monday I will be ---' THE TRIBUNAL: 'Thank you. That will be wonderful. Thank you. So what we are going to establish is - we'll see if we can establish some independent evidence about the conviction of these two gentlemen. All right. And any material related to the circumstances of their conviction. All right.'

15 What follows from this exchange is entirely clear. The Tribunal at no time suggested its concerns would be allayed by the simple provision of two names, nor did it undertake to carry out any particularly broad-ranging investigations of its own. The Tribunal merely put to the applicant's representative that, given the presumed existence of court records of any conviction, if the two men's proper names could somehow be ascertained, it should be possible to procure the relevant records from the court in Colombo. It did not contemplate receiving evidence in the form of the letter that arrived. Rather, it contemplated receiving copies of publicly available court records. As I apprehend it, the Tribunal undertook to check the two men's nicknames as provided at the hearing against Tribunal databases (the Tribunal refers to "these names", presumably those actually before it, in apparent contradistinction to "the actual names of these two gentlemen"). As the Tribunal's database is not referred to in the reasons given, the natural inference, having regard to the statutory obligation to record findings on "any material questions of fact" imposed by s 430, is that nothing material was found in the database: Minister for Immigration & Multicultural Affairs v Yusuf(2001) 206 CLR 323 per Gleeson CJ at 330 [5], and per Gaudron J at 338 [35]. Had the Tribunal found anything relevant, it would have been obliged to record that finding. The Tribunal put it to the applicant, and the applicant took the point, that it was difficult to credit that he did not follow whether the case had been reported in the newspapers. It made it clear to the applicant's representative that what it was seeking was "some independent evidence about the conviction of these two gentlemen", in circumstances where the Tribunal was told it could expect that "these two [nick]names would have really come up at the trial". The second-hand description of two men's criminal records with which the Tribunal was eventually provided by a letter in no way: · connected the applicant to the convictions; · connected the men convicted with the plot described by the applicant; or · connected the men convicted with the nicknames provided by the applicant. 16 It was submitted for the applicant that, given this information as to criminal records and as to criminal nicknames the Tribunal ought to have enquired through its own resources, and even of authorities in Colombo, whether the two men described were also known by the nicknames given at the hearing. I am unpersuaded by this argument. The applicant's evidence was that these men were known by the nicknames given by the applicant to "the entire area". If they were the same men as those described in the information subsequently furnished to the Tribunal, those nicknames could be expected to appear in the court or police records of known aliases. That they do not raises the inference that these are not the same men. That inference was reasonably open to the Tribunal, and the Tribunal was under no obligation to investigate whether there was material in Colombo capable of supplying the deficiencies in the applicant's case. 17 There also appears to be a suggestion that the Tribunal should have cross-referenced the two men's names in its own resources to see whether the names eventually provided corresponded with the nicknames given at hearing. If it is correct to infer that the Tribunal did check its databases for the nicknames and found nothing, then the nicknames were obviously not contained within the Tribunal's records. It would be a sterile exercise to repeat the search armed with the real names provided subsequently: those real names could not correspond with anything relevant in the Tribunal's records if the nicknames were not otherwise known to the Tribunal. 18 The applicant's first and second objections have, in truth, the same foundation. The applicant's case in effect is that the Tribunal represented that his story would be accepted if the names were provided, then chose to reject the evidence led on that point as it had not been adduced at the hearing, and then disbelieved any part of the applicant's case going to this claim because, at the hearing, he had been able to provide only nicknames. In this way, it is submitted, the applicant was misled and, indeed, treated unreasonably or capriciously. This submission, I consider, is based on an erroneous interpretation of the proceedings before the Tribunal and its reasons for decision. 19 What was clearly put to the applicant, and understood by him, at the hearing, was the broader issue that the Tribunal had difficulty accepting that he had taken no subsequent interest in proceedings against these men. That difficulty, it was put to his representative, could possibly be overcome if there were any independent evidence - preferably court records - going to the conviction and sentence of two men known by the nicknames supplied by the applicant. No such information was forthcoming. In the first post-hearing submission of 21 August 2000, the applicant's representatives informed the Tribunal that: "Various efforts taken to find the names of the persons [who] kidnapped our client's son or the particulars regarding their case proved unsuccessful". Then, in a further submission of 6 September 2000, the criminal record information was provided. The Tribunal said in its reasons (emphasis added); 'However, there is no evidence to link this information to the applicant. Further, given the applicant stated he did not know the names of these men the Tribunal cannot accept that these results are reliable in any way. … Despite speculation by the applicant, the Tribunal does not accept that two men would be convicted on false murder and related charges because a politician wanted the police to punish the persons who wanted to assassinate him but did not want the assassination attempt published. Although the Tribunal need not make a finding on the conviction records, it is notable that the details supplied provide different remand dates and the names/alias do not correspond to the monikers given in the applicant's oral evidence to the Tribunal. Accordingly, the Tribunal does not accept that these convictions were as a result of information provided by the applicant or that the convictions against the said persons were 'a frame for other offences, namely the assassination attempt' which the late Mr Athulathmudali wanted to avoid having published. Given all of the above, it does not accept that the applicant provided information to the police in relation to an intended assassination of an MP.' The applicant complains of the Tribunal finding that "given the applicant stated he did not know the names of these men the Tribunal cannot accept that these results are reliable in any way". The sentence is infelicitous and there would be much to complain of in it if the Tribunal had simply invited the applicant to supply two names. It did not. It invited the applicant to submit independent information going to the conviction of two men known by the nicknames he had given for the crimes he had described. 20 The Tribunal's reasons are not to be assessed strictly, or with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. The sentence complained of is not entirely clear in its context. Although the Tribunal said that it did not need to make findings on the reported contents of unproduced conviction records allegedly seen by the writer of the letter forwarded to the Tribunal after the hearing, the clear thrust of its reasons was that the account provided in the letter was implausible and the details provided of criminal records could not be correlated with the applicant's oral evidence. The information provided can only be related to his claim by the purely speculative hypothesis that the men had been "framed" for other crimes, which the Tribunal rejected. That alone would be a sufficient basis on which to disregard the information. Thus, in my view, the Tribunal clearly rejected the information in the letter on grounds that were both broader and more compelling than the simple assertion that: "given the applicant stated he did not know the names of these men … these results are [not] reliable in any way". In its context I consider that this statement should be read as meaning; "Nothing contained in this information links it with the rest of the applicant's case as presented at hearing" (see [14] above). As the Tribunal observed, the remand dates and known aliases do not relevantly correspond with the applicant's claims as first presented. If reference had been made in the letter to the nicknames supplied at the hearing, it would have been a different matter. The Tribunal was, in that sense at least, right to say it "need not make a finding" on the records as they were, on their face, irrelevant. 21 It should have been evident to the applicant and his representative that providing two bare names, without more, would not be sufficient and was not, in fact, what the Tribunal had asked for. This ground is simply without merit.

The applicant's third ground: a duty to enquire 22 The Tribunal could only have come under a duty to make further enquiries if it had represented it would do so, or if this were a case like that described by Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 170. The Tribunal plainly did not suggest that it would undertake enquiries of the courts in Colombo. I consider that Sundberg J was entirely correct when he characterised as follows at [18]-[20] and [33] of his decision what had happened before the Tribunal; '18 … … … While ss 424(1) and 427(1)(d) empower the Tribunal to make enquiries and obtain information, neither implies there is a duty to do so. Nor does a failure to consider whether to make inquiries or obtain information constitute a reviewable error. See Ahmed v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 343 at pars 35‑39, Hernandez v Minister for Immigration and Multicultural Affairs [2001] FCA 725, Kulwant Singh v Minister for Immigration and Multicultural Affairs [1996] FCA 1013, Kabir v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 295, Masood v Minister for Immigration and Multicultural Affairs [2001] FCA 405 and Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at par 86. So far as it relies on s 427(1)(d), the applicants' submission invites the Court to substitute its own opinion as to what it thinks necessary for that which the Tribunal thinks necessary. 19 Even if, in an appropriate case, a duty to inquire can arise as a result of conduct engaged in by the Tribunal, no duty arose as a result of the Tribunal's letter dated 23 August 2000, which was after the hearing, in which the applicants were invited to: "Comment on the absence of independent evidence to support claim that two men were allegedly sentenced as a result of the applicant's role as an informant in 1992." It is quite impossible to derive from this invitation to comment on the absence of independent evidence, that the Tribunal was indicating that if the applicants provided such evidence, that was all it would require by way of corroboration, or that if court details were provided, it would obtain further information about the details. 20 The applicants relied on Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125. In that case the Tribunal said it would have an identity card relied on by the applicant examined to test its authenticity. However it failed to do so. Drummond J said the Tribunal could not have justified its decision by the reasons it gave if the card was shown to be genuine. In those "unusual circumstances" his Honour thought the applicant should have the opportunity to try to show that the Tribunal's failure to have the card checked for authenticity when it said it would do so amounted to an error within s 476(1)(a). The present case is not of that character. All the Tribunal said it would do was check its own data base. There is no suggestion that it did not do that. … … … … 33 The claim that the Tribunal "failed to exercise its jurisdiction" relies first on the alleged errors of law considered in pars 25 to 30 above. None of those errors has been made out. Two further matters are relied on. The first is the claim that the Tribunal failed to exercise, or consider whether to exercise, its power to make inquiries as to the court histories of the two men. I have rejected that claim in pars 18 to 20. The applicants sought to amend their grounds to add a further jurisdictional complaint that "by failing to make inquiries in respect of the additional information expressly sought by, and provided to the Tribunal, it failed to take into account a relevant consideration being its conduct of the review process". It was said that "if the Tribunal indicated that it might make inquiries in respect of an issue, then that was a consideration that was relevant to assessing whether or not to make these inquiries". The only "inquiry" the Tribunal said it would make was to check its data base. The applicants did not claim it had not done so and there is no evidence to that effect. The Tribunal did not say it would or might make inquiries of the Colombo Magistrates Court about the information provided. This ground is not made out on the facts. It is not necessary to consider whether it is an available ground of review.' I respectfully adopt what Sundberg J said in the passages just quoted. 23 Further, there is no tenable argument that there was information "readily available which was centrally relevant to the decision to be made" in the Prasad sense. There was nothing before the Tribunal to suggest that the accounts of criminal records provided were in any way related to the applicant's case. Indeed, the summary of the records contained in the letter included a number of details (and omissions) that contradicted the case advanced by the applicant. On its face, the information supplied had nothing to do with the applicant's claims and, far from pointing to material that was readily available, left it open to the Tribunal to infer that it did not point to anything relevant or certainly not "centrally relevant". Insofar as this argument was put, in part on the basis that the enquiry would have been a narrow one and easy to make, considerations of that kind cannot impose a duty in the absence of any representation by the Tribunal that it would make enquiries of the authorities in Colombo or unless the information strongly indicated some credible connection with the applicant's case. It is also relevant that the applicant was represented (see, for example, Luu v Minister for Immigration and Multicultural Affairs 197 ALR 433 at 441-2 [28]) and that his representatives had agreed to see what could be discovered from the authorities in Colombo.

The applicant's fourth ground: failure to take evidence from the son, and failure to make discrete findings in respect of the son. 24 Logically, the son's claim was entirely dependent on his father's. Although the son might independently have had a fear of persecution by the two men, it would be a fear of persecution for a Convention reason only if his father's claim of having foiled a politically motivated assassination were accepted. This is the short answer to the contention that, in breach of the Act, the Tribunal did not conduct an independent review of the son's application as an entirely distinct exercise. It is simply not to the point that the Tribunal did not ask extensive questions of the son in relation to his own, separate claim. In this sense, Sundberg J, at [23] of his reasons, rightly characterised the claim that the Tribunal had failed to invite the son to give evidence in his own, as opposed to his father's, case as "simply wrong". 25 It was also entirely clear from the answers which the applicant's son gave to the Tribunal that he did not know the names of the two men in question. Given that it was their names that were of central concern to the Tribunal, it is untenable to assert that the son was in a position to give highly corroborative evidence of identity. 26 A further argument was that the Tribunal lacked jurisdiction to make a decision in the applicant son's case because the delegate had not recorded his decision in respect of the son in a separate decision record. The obligation to create a decision record only arises for the purposes of s 66(1) which stipulates: "When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way". The prescribed content of that notice is set out in s 66(2). However, s 66(4) provides that; "Failure to give notification of a decision does not affect the validity of the decision". The "decision record" is not a condition of the exercise of jurisdiction by the Tribunal; the question of whether the Tribunal has jurisdiction depends in part on whether a decision has been in fact made, not whether a particular document has been created: s 411. The decision record is merely created to satisfy the requirements of s 66(1), which contains nothing, as I read it, to prevent the creation, as in this case, of a joint decision record where more than one application is founded on the same alleged facts. Further, even if some formal defect had existed in the decision record, it seems apparent from s 66(4), that Parliament intended that a failure to give effectual notice to an applicant of a decision would not be an error going to jurisdiction (see the discussion in VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205 at [26]). Thus, even if the Act provided (as it plainly does not) that the fact that the son was not notified separately meant he was not notified at all, that would still not affect the validity of the delegate's decision in respect of the son.

Conclusion 27 It will be apparent from the foregoing reasons that the applicants must first obtain an extension of time before this Court can entertain their substantive application. However, as I have sought to demonstrate, the grounds advanced by the applicants are all without merit and have no prospect of success. Accordingly, the application for an extension of time in which to commence these proceedings is refused. It is therefore unnecessary to consider the Minister's arguments of res judicata or estoppel. If I were wrong as to the applicable time limits, and no issue of res judicata or estoppel arises, I would still dismiss the application for the reasons explained in reviewing the merits of the applicant's claims. It follows that there must be an order refusing an extension of time in which to bring these proceedings and the applicant must pay the respondent's costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.