M87 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

Federal Court of Australia (Full Court)|2005-08-04|Before: North JJ, Kenny J

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of Kenny J delivered on 28 January 2005. Her Honour dismissed an application for the issue of writs of prohibition and certiorari brought by the appellant in relation to a decision of the Refugee Review Tribunal (the Tribunal) made on 9 April 1996. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant protection visas to the appellant, his wife and their three children. 2 The central question on the appeal is whether the appellant was denied procedural fairness by the Tribunal.

the appellant's claims 3 The appellant claimed before the Tribunal that he feared persecution as a result of his association with the Janatha Vimukthi Peramuna (JVP), his work against the Sri Lankan Freedom Party (SLFP) in the 1994 elections, and his work as a human rights activist. 4 He said that from 1990 he supported the JVP, a radical Marxist, Sinhalese nationalist, and terrorist organisation, by making large financial donations, supplying food and accommodation to JVP members, and holding meetings in his house. 5 He said that he helped create posters for the JVP against the SLFP in the 1994 elections. As a result he was abused and threatened, and his house stoned. 6 On 10 November 1994, he claimed that the army searched his house and took him into custody. He said he was tortured, and questioned about his involvement with the JVP and work against the SLFP. He was also detained on 1 and 10 February 1995 for a day each time. 7 He said that for two years before he came to Australia he assisted human rights organisations by collecting material about human rights cases and sending them to Father Noel Pereira and Jagath Pereira. He claimed that some of the material was intercepted by the authorities, and, after he left for Australia, Jagath Pereira was arrested.

The credibility issue 8 The Tribunal's consideration of the application was divided into four parts. First, the Tribunal made an assessment of the appellant's credibility. Then, it dealt with each of the claims made, namely, the appellant's alleged association with the JVP, his actions against the SLFP, and his human rights activity. 9 On the question of credibility, the Tribunal made the following findings: · It was difficult to accept that the appellant made large donations to the JVP between May 1989 and August 1991 when he was unemployed. If he had made the donations from accumulated wealth, it was difficult to accept that he supported a Marxist party which supported the poor and youth. · It was difficult to believe that the appellant could not give details of the JVP meetings held at his house. It was difficult to accept his explanation that he was busy in the kitchen preparing food given that he said he was a wealthy business man and that the matters under discussion had a potential to affect his safety. · It was not credible that the appellant who claimed to be a peace loving person supported the JVP over a long period when it was engaged in numerous and widespread acts of terrorism, murder of innocent civilians and other criminal violence. · There were serious doubts as to the focus of the appellant's activities in the 1994 elections being against the SLFP, because the JVP was considerably closer to the SLFP than the United National Party which governed prior to 1994. · It was noteworthy that the appellant made a mistake in giving the name of the JVP leader in London with whom he had supposedly been in close contact. · As the Tribunal's finding on the next point concerning cable 34239 assumes significance in the appeal, it is desirable to set it out in full as follows: The applicant claimed to have been arrested on 10 November 1994 and detained until 20 December 1994. Yet his passport shows that its validity was extended by the Sri Lankan authorities on 16 November 1994. I am unable to reconcile these matters, particularly having regard to the following information from the Australian High Commission in Colombo (cable 34239 of 10 June 1992): THE SRI LANKAN DEPARTMENT OF IMMIGRATION AND EMIGRATION ADVISES THAT SRI LANKAN PASSPORTS ARE ISSUED FOLLOWING THE PRESENTATION OF AN APPLICATION ACCOMPANIED BY A NATIONAL BIRTH CERTIFICATE AND NATIONAL IDENTITY CARD. ON LODGEMENT, THE APPLICATION IS SCRUTINISED AND A CHECK IS MADE OF A REGISTER OF NAMES AGAINST WHICH POLICE, COURTS AND OTHER AUTHORITIES HAVE ISSUED INSTRUCTIONS FOR A BAR TO BE PLACED ON PASSPORT ISSUE AND/OR DEPARTURE FROM THE COUNTRY. PERSONAL PRESENTATION OF THE APPLICATION IS REQUIRED EXCEPT WHERE MEDICAL REASONS DO NO PERMIT. ALL SRI LANKAN PASSPORT HOLDERS ARE CHECKED AGAINST THE REGISTER BY PASSPORT CONTROL AT THE PORT OF EMBARKATION. THIS SYSTEM IS CURRENTLY MANUAL, BUT PLANS ARE IN PLACE TO INTRODUCE A COMPUTERISED SYSTEM IN JANUARY 1993. ….. APART FROM THE USE OF GOOD FORGERIES, IT IS UNLIKELY THAT PEOPLE SOUGHT BY THE GOVERNMENT WOULD BE ABLE TO LEAVE. INDICATIONS ARE THAT THOSE WHO LEAVE THE COUNTRY LEGALLY AND WHO DO NOT ENGAGE IN TERRORIST RELATED ACTIVITIES ABROAD NEED NOT BE IN FEAR OF AUTHORITIES ON RETURN. The applicant claimed to have had a friend in the Sri Lankan Immigration Department who arranged these matters for him, but having regard to the date of extension of his passport and the ease of his departure with his wife and children I do not regard this as sufficient explanation in the light of the above cable. · There were significant problems in accepting the appellant's version about his human rights activities. o He could not give details of the cases in which he was interested except one involving Bandula Sajewa, and the Tribunal could not find any mention of this case in any human rights reports on Sri Lanka. o The appellant could not say for which human rights group Father Pereira was working. o The appellant had not kept any evidence of the many cases in which he had allegedly been involved. o The appellant did not know what had happened with the information he passed on to Father Pereira. o The appellant was unable to say why the information sent to Jagath Pereira was intercepted just at the time prior to his departure when information had not been intercepted previously. 10 The Tribunal concluded its assessment of the appellant's credibility as follows: Having regard to all the evidence, I do not consider the applicant's story credible. In the words of Foster J in Guo at 13, I have a 'positive state of disbelief'. I do not seek to reject the applicant's story outright. Rather, however, I believe he has been involved in some minor electoral activity against the SLFP during the 1994 elections (there are no particular credibility problems around this part of his story), and I extend the benefit of the doubt to him in accepting that he experienced certain intimidation because of this. I do not accept, however, that this included lengthy detention as he claimed, since I find this inconsistent with the extension of his passport at the relevant time. I also reject the claim that he had any significant involvement with the JVP or in raising cases of human rights violations. These claims, in my view, have been manufactured as a way of boosting the significance of his very limited activity against the SLFP.

the jVP claim 11 Then, the Tribunal dealt with the claim concerning the appellant's allegation arising from his alleged association with the JVP. It said: I consider that the applicant has had, at most, minimal involvement with the JVP. He makes no claim to have been involved in any of the JVP violence. His claimed activities were strictly lawful and peaceable. In the light of abundant and credible information that the JVP is now a legal political party and is no longer the subject of persecution by the Sri Lankan authorities, I find that there is now no chance that the applicant would be persecuted for his past association with the JVP. 12 In support of the conclusion in the final sentence, the Tribunal relied upon cable CL 37136 of 21 November 1994, cable CL 37966 of 28 August 1995 and a report from the UNHCR on 21 September 1995 (the JVP country information). The JVP country information was to the effect found by the Tribunal. 13 The Tribunal also relied upon cable 1873 of 27 February 1995, cable CL 38226 of 14 December 1995 and the United States Department of State Country Reports on Human Rights Practices for 1995. These materials were to the same effect as the JVP country information.

SLFP Claims 14 The Tribunal was prepared to accept that the appellant did some work against the SLFP in the 1994 elections, and this might have caused him some problems at the time and in early 1995. However, the Tribunal found that the information before it did not demonstrate any government actions against opponents of the SLFP, which had won government in the 1994 elections. The Tribunal continued as follows: In this context I point also to the ease with which the applicant was able to have his passport extended and leave the country with his family, and I note that his claim of being detained for a month in 1994 is not credible. Finally I point out that his activity against the SLFP in 1994 was not high-profile or significant, so that it is hardly worthy of major attention even if the present Government were given to persecuting its political opponents.

human rights activist claims 15 The Tribunal did not accept that the appellant was involved in any significant way with human rights in Sri Lanka.

the decision of the primary judge 16 The essence of her Honour's decision is to be found in the following passage: 37 It is plain from the Tribunal's reasons that it did not believe the applicant's account of his involvement with the JVP, his opposition to the SLFP, or his human rights activities. The Tribunal's decision was, as the first respondent submitted, principally an expression of its disbelief in the applicant's account, considered overall. Most of its findings about the applicant's credibility were unrelated to the country information in the Tribunal's possession. 17 Her Honour then summarised the credibility issues referred to in [9] of these reasons and continued: 38 The Tribunal referred to country information in relation to only one of its findings affecting credibility. That is, the Tribunal made use of country information in rejecting the applicant's claim to have been detained between 10 November 1994 and 20 December 1994. The country information contained in cable 34239 of 10 June 1992 did not directly contradict this claim, but it was used by the Tribunal to support its conclusion, first, that the claim was inconsistent with the extension of his passport in the claimed period of detention and, secondly, that his explanation regarding his passport (and the ease of his departure) should not be accepted. 39 I reject the applicant's claim that there was a breach of procedural fairness because he was not given an opportunity to deal with the contents of cable 34239, which concerned the procedures governing the extension of Sri Lanka passports and departure from that country. The Tribunal failed to accept the applicant's claim regarding his detention principally because: (1) the authorities extended his passport during the claimed period of detention; and (2) the Tribunal declined to accept his explanation regarding this extension and the ease of his departure from Sri Lanka. It may be inferred from the fact that the applicant gave an explanation about the extension of his passport and the ease of his departure that he was aware (either because the Tribunal told him or its concerns were obvious) that the Tribunal regarded these two matters as inconsistent with his detention claim. Accordingly, the real gravamen of the applicant's complaint in this regard is that his explanation was not accepted. He cannot complain that he had not been heard upon the pertinent issues. 40 It may also be borne in mind, as a relevant circumstance, that the cable was not necessarily determinative even of the applicant's detention claim, because the Tribunal treated its contents as corroborative of a view to which it was already inclined about the significance of the extension of the applicant's passport and the ease of his departure. Even if this were wrong, the contents of the cable were plainly not critical to the outcome of the applicant's case as a whole, because the rejection of his detention allegation was only one of a number of findings that were adverse to the applicant and his credibility. 41 I also reject the applicant's claim that there was a breach of procedural fairness because he was not given an opportunity to deal with the contents of cables CL37136 of 21 November 1994 and CL37966 of 28 August 1995 and the UNHCR advice of 21 September 1995, all of which concerned the consequences of involvement with the JVP. With the exception of the passport issue, the Tribunal did not discuss the country information in its possession until after it had made its findings about the applicant's credibility. The Tribunal stated that it had a "positive state of disbelief" in the applicant's account and that it specifically rejected his claim that he had any significant involvement with the JVP and in human rights activities before referring to the country information in cables CL37136 and CL37966 and the UNHCR advice. Once the Tribunal found, as it did, that the applicant did not have any significant involvement with the JVP, the contents of these cables and the advice were in fact immaterial to the decision, because they related to a circumstance that did not affect the applicant (i.e., the consequences of involvement with the JVP). The Tribunal's discussion of this country information was, at most, confirmatory of a conclusion that it had already reached on other grounds. It follows that this country information was in no sense critical to the outcome of the decision. 42 Moreover, the applicant must have been aware that the consequences of JVP involvement would be a matter for the Tribunal to consider because the effect of his alleged JVP involvement was at the core of his claim for refugee status. Put another way, the relevance of information of the kind contained in these cables and the UNHCR advice, all of which were in existence in late 1994 or 1995, would have been obvious to the applicant at the time he made his application. In this circumstance, it cannot be said that the applicant would have been taken by surprise by the contents of cables CL37136 and CL37966 and the UNHCR advice and that he did not have an opportunity to present his own case with regard to JVP involvement. 43 Accordingly, I reject the applicant's submission that there has been a breach of the rules of procedural fairness on the Tribunal's part.

the arguments on appeal 18 The grounds set out in the Notice of Appeal complain that the primary judge erred in failing to find that he was denied procedural fairness in that the appellant was not given an opportunity to deal with the contents of the JVP country information or with the contents of cable 34239. 19 Whilst the Notice of Appeal was limited to these two arguments, the written submissions filed by the appellant also complained that the credibility findings were the private opinion of the tribunal that has been formulated on information not given to the applicant. It does not seem that this ground was raised before the primary judge. 20 Then, at the hearing of the appeal the appellant, who was self represented and was assisted by an interpreter, made some short oral submissions to the Court. He said that he was handicapped at the Tribunal hearing because he was asked questions but not given a chance to answer them. Also, he said that he showed his injuries to the Tribunal but no mention was made of these injuries in the Tribunal's decision. Again, these complaints were not raised before the primary judge.

consideration 21 In relation to the complaints relating to the JVP information we agree with the primary judge for the reasons which she has given that there was no denial of procedural fairness to the appellant. Further, we noted in [13] of these reasons that the Tribunal relied on three further pieces of country information, which were to the same effect as JVP country information. The appellant makes no complaint in relation to these other three pieces of country information. Without a successful attack on this information, the argument concerning the JVP country information cannot succeed. 22 In relation to the complaint regarding the use of cable 34239 we also agree with the primary judge for the reasons which she has given that there was no denial of procedural fairness to the appellant. We are confirmed in this view by the statement made by the appellant orally on the hearing of the appeal in reply, that he had told the Tribunal that his brother had collected his passport for him, and that he was aware of the significance of the fact that his passport had been issued at a time at which he said he was being held in custody. 23 This Court may allow an appellant to raise a new ground of appeal if it is in the interests of justice: H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348 at [6]-[8] per Branson and Katz JJ; VAAC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 168; [2003] FCAFC 74 at [23]-[24] per North, Merkel and Weinberg JJ; see also Coulton v Holcombe (1986) 162 CLR 1 at 7-8 per Gibbs CJ, Wilson, Brennan and Dawson JJ. In relation to the proposed further ground of appeal concerning the Tribunal's credibility findings, it is not in the interests of justice to allow the ground to be raised at this late stage. The ground is bound to fail because, assuming for the sake of argument everything else in favour of the appellant, there is no evidence as to the material which the appellant would have provided to the Tribunal if he had been given the chance which he said was denied to him. Such evidence would be necessary to establish that, if the appellant had been given the opportunity, the result could have been different. 24 And, finally, in relation to the suggestion made orally by the appellant that he was not given an adequate hearing, it is not in the interests of justice to allow this ground to be raised at the appeal stage. The ground is bound to fail because there is no evidence before the Court of the way in which the Tribunal hearing was conducted. It is noteworthy that the appellant was represented at the Tribunal hearing by a firm of solicitors, and yet no complaint was made to the primary judge on a matter which would have been obvious to the appellant's legal representatives. 25 Consequently, the appeal will be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 5 August 2005 The Appellant appeared in person

Solicitor for the Respondent: Australian Government Solicitors

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