Minister for Immigration and Multicultural and Indigenous Affairs v Applicants S194 of 2002

Federal Court of Australia (Full Court)|2003-11-28|Before: Gaudron J, Allsop JJ

THE COURT: 1 This is an appeal by the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") against orders made by a Judge of this Court on 19 June this year that writs of prohibition, certiorari and mandamus issue as a result of a decision made by the Refugee Review Tribunal ("the Tribunal") on 14 May 1999: Applicant S194 of 2003 v Refugee Review Tribunal [2003] FCA 615. The Tribunal, by its decision, affirmed a refusal by a delegate of the Minister of protection visas for the respondents. The respondents are a Sri Lankan family of five. The husband and father whom, like the learned Judge at first instance, we shall call "the primary applicant", is a Hindu priest of Tamil ethnicity. 2 The respondents commenced the present proceedings in the High Court on 27 May 2002. The proceedings were remitted to this Court by order of Gaudron J on 4 November 2002. The respondents relied on two separate instances of an alleged denial by the Tribunal of procedural fairness. The first was described as "the adverse documents case." That case was to the effect that the Tribunal had taken into account country information contained in six cables and reports by the Department of Foreign Affairs and Trade ("DFAT") without notifying the respondents of the effect of that information or providing them with copies of the documents in which it was contained. The Tribunal's decision was handed down before the introduction of s 424A of the Migration Act 1958 (Cth) ('the Act'). 3 The second denial of procedural fairness was alleged to have been constituted by the Tribunal's misleading the respondents into believing that a document favourable to their case, which had been before the Minister's delegate, would be considered by the Tribunal. Like the learned primary Judge, we shall refer to this second claim as "the favourable documents case." 4 The respondents' claim to have a well-founded fear of persecution for a Convention reason was based on the primary applicant's race as a Tamil and his membership of a social group, Hindu priests. In particular, it was contended that he was at risk because Hindu priests were perceived by the Sri Lankan authorities as sympathisers with, and confidantes of, the Liberation Tigers of Tamil Eelam ("LTTE"). As well, it was submitted that Hindu priests were vulnerable to pressure from the LTTE to assist with its activities. Specifically, the primary applicant's 13 year old son was identified as likely to be targeted by the LTTE as suitable for recruitment to its ranks.

The adverse documents case 5 In the reasons at first instance, six documents were identified as being relied upon to support this case. His Honour reviewed each of them in turn but found that only in respect of one of them, CX12546, had there been a denial of procedural fairness. CX12546 was a cable from DFAT dated 8 November 1995 which had been extracted from "CIS On-line Information Services - Sri Lanka" and was in these terms; 'THE ARRESTS OF TWO CATHOLIC PRIESTS HAVE BEEN REPORTED IN THE LOCAL NEWSPAPERS HERE IN COLOMBO. ACCORDING TO THESE REPORTS, THE TWO PRIESTS WERE ARRESTED AT THE ARMY CHECKPOINT AT VAVUNIYA, WHERE THEY WERE ATTEMPTING TO CROSS INTO LTTE-CONTROLLED TERRITORY. IT IS CLAIMED THEY HAD FAILED TO DECLARE TO THE ARMY A LARGE AMOUNT OF CASH (RUPEES 1.3 MILLION - AROUND AUD 33,000) AS WELL AS A QUANTITY OF COPPER WIRE, MOTOR CYCLES SPARES AND PEN TORCH BATTERIES IN THEIR POSSESSION. A REPORT IN TODAY'S (8 NOVEMBER) "ISLAND NEWSPAPER SAID THAT THE PRIESTS HAD BEEN BROUGHT TO THE POLICE CRIME DETECTION BUREAU (CDB) HEADQUARTERS IN COLOMBO ON MONDAY (6 NOVEMBER) AND WERE STILL BEING QUESTIONED. THE REPORT ADDED THAT ONE OF THE PRIESTS HAD SAID THE CASH THEY WERE CARRYING WAS TO BE USED FOR "REFUGEES" IN JAFFNA. A CHURCH OFFICIAL AND CHAIRMAN OF A CATHOLIC NGO SAID THEY HAD GIVEN THE PRIESTS MONEY TO BUY WHATEVER FOOD THEY COULD GET LOCALLY IN JAFFNA, RATHER THAN TRY TO ORGANISE ACTUAL DELIVERIES OF FOOD FROM COLOMBO, AS THEY HAD THOUGHT THIS MIGHT BE MORE PRACTICAL AND EASIER. HE NOTED THAT WHATEVER ELSE WAS ON THE EMBARGO LIST FOR TRANSPORT TO THE NORTH, MONEY WAS NOT A BANNED ITEM.' 6 Of that document, the Tribunal, in its reasons, observed; '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, Hindu priests, rather than because of acts they may have committed. Dr Mano Mohan referred in his letter to the fact that several Hindu priests had been arrested in Colombo in 1994 and 1995 'on suspicion of collaboration with the freedom struggle' but had been released on bail without charges being filed. 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.' 7 The learned primary Judge, identified the effect of the cable CX12546 as follows, at [85] of his reasons; '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.' 8 His Honour went on to say that it was "obvious from the passage" reproduced at [6] above, that the Tribunal "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." 9 His Honour then went on to observe; '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.' 10 After accepting evidence of the existence of documents on which the primary applicant or his advisers could have relied before the Tribunal, had they known that CX12546 would be applied unfavourably in assessing the primary applicant's claim to have a well-founded fear of persecution, the learned primary Judge reached this conclusion on the adverse documents case; '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 11 This case was based on a single document, CX16598, which had been furnished to the Tribunal on 19 February 1996 by an unidentified Professor of Anthropology at the James Cook University of North Queensland. It was in these terms (emphasis added): '1. A CASE COULD BE MADE FOR SOME SIGNIFICANT DIFFERENCE BETWEEN HINDU RITUALS PERFORMED IN JAFFNA AND IN COLOMBO. JAFFNA IS THE CENTRE OF LONG TERM TAMIL SETTLEMENT IN SRI LANKA. IN MANY WAYS THERE ARE DISTINCT TRADITIONS THAT DEVELOPED AMONG SRI LANKA TAMILS IN THIS AREA FOR CENTURIES. FEATURES OF RITUAL PRACTICE IN THIS AREA AND TOWARDS THE EASTERN REGION OF THE ISLAND ARE SUBSTANTIALLY DISTINCT FROM SOUTH INDIAN TRADITIONS AS WELL. TRADITIONS IN THE COLOMBO AREA HAVE BEEN STRONGLY INFLUENCED BY THE TRADITIONS OF RECENT IMMIGRANTS TO THE TEA ESTATES AND BY BUDDHIST PRACTICE. 2. A TAMIL BRAHMIN HINDU THEORETICALLY SHOULD FIND EMPLOYMENT IN COLOMBO. BUT IT SHOULD BE STRESSED THAT THE SYSTEM OF TEMPLE OWNERSHIP AND THE HEREDITARY NATURE OF THE PRIESTHOOD WOULD MAKE IT DIFFICULT. 3. 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.' 12 The document had been referred to by the delegate in her decision of 16 July 1997 in these terms: '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 Sihalese, DFAT advise that (CX1788 24/2/94) priests have, in the past, moved backwards and forwards between temples in the north and the south. (although with the current situation this is rarer these days.) The applicant has lived in Colombo previously, and was able to stay at the Temple, when in Colombo.' 13 The document CX16598 was not referred to in the Tribunal's reasons. 14 It was inferred by the primary Judge that, although the Tribunal had the Department's file, the Tribunal "neither had nor had regard to" the document. His Honour's reasons for drawing that inference were explained as follows; '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 [v Refugee Review Tribunal (2002) 190 ALR 601] 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.' 15 The primary applicant had sworn an affidavit on 1 November 2002 in which he asserted, in par 10, that he would have taken various steps had he known that the Department did not send document CX16598 to the Tribunal. These steps included (a) calling for the document under the Freedom of Information Act 1982 (Cth), (b) having an agent or solicitor make written submissions and attend the Tribunal hearing to explain how the document assisted his case, and (c) bringing forward additional evidence by way of documents, statements, further witnesses or country information which went to the true position in Sri Lanka to the effect that it was unsafe for him to return home and supporting his claims that his stated fears of persecution in Sri Lanka were reasonable at the time. 16 After reviewing this evidence from the primary applicant and also evidence from his migration agent, each of whom was extensively cross-examined by counsel for the Minister, his Honour declined to find that the primary applicant's evidence was not credible because of marked similarities between his affidavits and the evidence relied on in Muin v Refugee Review Tribunal (2002) 190 ALR 601. His Honour then concluded: '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.'

Conclusion on adverse documents case 17 In our opinion the evidence of the arrest of the Catholic priests could not reasonably be characterised as an important plank in the RRT's reasons. It was no more than an example given to illustrate the (perhaps self-evident) proposition that arrest of persons who happen to be members of a particular social group on suspicion of criminal activity does not necessarily mean that all members of that group face persecution simply by reason of their membership. 18 In any event, the primary applicant's claims relevantly asserted fear of persecution on the ground of membership of a social group constituted by Hindu priests, not priests generally. An incident affecting Catholic priests would not seem to be relevant in disproof, or proof, of his claim. 19 In these circumstances we agree with the Minister's submissions that there was no denial of procedural fairness in the Tribunal's failing to direct the primary applicant to this document or its essential terms.

Conclusion on favourable documents case 20 His Honour's upholding of the favourable documents case is based on his finding that the document CX16598 was not before the Tribunal. 21 We do not think this finding was open. The bare fact that the document was not mentioned in the Tribunal's reasons is equally consistent with the Tribunal considering, rightly or wrongly, that it was irrelevant or unimportant or with the Tribunal simply overlooking it. Neither circumstance would amount to jurisdictional error. Nor was this submitted on behalf of the primary applicant. His case was that there was Muin procedural unfairness in that he was wrongly led to believe that the Tribunal had in its possession a relevant document. 22 The passage cited by his Honour from Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (at [69]) was concerned with findings of fact, not particular pieces of evidence. The High Court was considering s 430(1)(c) and (d) of the Act which obliged the Tribunal to prepare a written statement that; '(a) sets out the findings on any material questions of fact; and (b) refers to the evidence or any other material on which the findings of fact were based.' The High Court held that the Tribunal was only obliged to set out its findings on those questions of fact which it considered material to its decision. Still less therefore was the Tribunal in the present case required to refer to every piece of evidentiary material before it. 23 In the circumstances of the present case there were rational reasons why the Tribunal might have considered the document of no assistance. 24 The report was dated 19 February 1996, that is to say over three years before the Tribunal's decision. It concerned only conditions in Colombo. One of the basic problems for the primary applicant's case was that, having arrived in Australia on a tourist visa in April 1995 he voluntarily returned to Colombo in June of that year. He returned to Australia in October 1995 and then returned a second time to Colombo in March 1996. 25 The appellant claimed at the Tribunal hearing he had been arrested twice in Colombo when he was there in August and September 1995. However he had not mentioned the first occasion in his original statement. At the Tribunal hearing a witness for the appellant produced a fax from a lawyer referring to a third occasion, also in September 1995, when the appellant was said to have been arrested and detained for three days. The appellant claimed he had forgotten to mention this incident. He blamed his original representative for omitting this incident and the first incident in August, saying that there had been a breakdown in communication. The Tribunal thought that this was "surprising" since the original representative was a Tamil speaker. The Tribunal said: '… … I do not accept this explanation and it does not in any event explain why the Applicant failed to mention the third arrest at the hearing before me until he was prompted to do so by the production of the facsimile message by his witness. Having regard to the impression I formed at the hearing before me and the inconsistencies in the Applicant's evidence, I do not accept him as a witness of truth.' 26 The document CX16598 is no more then a generalised assertion of danger to Tamil priests in Colombo, unsupported by any detail. In circumstances where the Tribunal had considered and rejected specific allegations by the primary applicant himself of mistreatment in Colombo in the period covered by the document, it is understandable that the Tribunal found it unnecessary to make reference to it. Having rejected the primary applicant's specific claims, for reasons peculiar to him, the only thing the Tribunal could say about the document was that the primary applicant's experience at that time did not accord with it. 27 Moreover, the Tribunal found on the evidence that there was no real chance that the applicant would be arrested, tortured or otherwise persecuted if he were to return to his family temple on the Jaffna peninsula. The validity of this finding was not challenged. This was not a relocation case; the primary applicant's roots were in Jaffna and he had not lived in Colombo for any substantial periods. Thus the possibility of harm to him in Colombo was not at the forefront of the case. 28 It only remains to say something about the delegate's reference to the document, quoted at [12] above, which was mentioned by his Honour at [99]; see [14] above. His Honour appears to be saying that misdescription of the document by the delegate misled the Tribunal into ignoring it and thus not seeking to consult it. Had the Tribunal not been thus misled it would have discovered the document was missing. 29 However, the way the delegate dealt with the document was not unreasonable in the context of the claims the primary applicant made, namely that he was a Sri Lankan Tamil from Jaffna, that he left the country to escape persecution at the hands of the security forces and the LTTE and that if returned 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. In essence this was not a claim of feared persecution in the form of communal violence which the authorities are unable or unwilling to prevent. So the delegate made findings about risk at the hands of the authorities or the LTTE but did not pay great attention to material about communal violence because this was not the primary applicant's case. There is no reasonable basis for excluding the possibility that the Tribunal might have dealt with the document in the same way.

Order 30 There will be orders that: (a) the appeal be allowed; (b) orders 1, 2, 3 and 5 made by the primary Judge on 19 June 2003 be set aside and in lieu thereof, order that the application for the issue of constitutional writs be dismissed; and (c) the first respondent pay the appellant's costs of the appeal and of the trial.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Dated: 28 November 2003 Counsel for the Appellant: Mr J Basten QC with Mr J Smith

Solicitor for the Appellant: Australian Government Solicitor

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