MZWEC v Minister for Immigration and Multicultural Affairs

The Tribunal's Decision 13 The Tribunal encapsulated in this paragraph of its reasons for decision, under the heading "Findings and Reasons", the essence of the appellant's claims and what it perceived to be the critical question for determination; 'The applicant has claimed to fear being persecuted for the reasons of (imputed) political opinion by the JVP, the LTTE, UNP supporters and PA supporters. He has also claimed to fear being persecuted by the PA Government, senior army officers and his Sinhalese neighbours because of his Tamil ethnicity. Having regard to the nature of the applicant's evidence and to the country information set out above, the question of the applicant's credibility is central to the determination of his application for review.' 14 After examining the appellant's claims in light of the observations of Gummow and Hayne JJ in Abebe v Commonwealth (1999) 1976 CLR 510, at 577 [191], and passages from the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, the Tribunal concluded that; '… the applicant was not a credible witness. His evidence was inconsistent with country information, incongruous, vague, far-fetched and unconvincing in significant respects …' 15 The Tribunal did not accept that the appellant's name had been included on an LTTE hit-list. Nor did it believe that the LTTE had sought to harm him because of his work as an army intelligence officer or because it perceived him as a political opponent. As well, the Tribunal found it "far-fetched" that the LTTE would have maintained an adverse interest in the appellant for more than a decade after he had investigated it. 16 The Tribunal also regarded as "inconsistent", "vague" and "incongruous" the appellant's claims to have been targeted by the JVP. It accepted as authoritative reports by way of "country information" from the UK home Office and DFAT to the effect that the JVP had been destroyed as an armed militant force by 1990 and had since entered mainstream Sri Lankan politics. Hence, the Tribunal did not accept that the appellant genuinely feared that he would be persecuted by the JVP if he were to return to Sri Lanka. 17 The Tribunal also concluded that the appellant did not genuinely fear that he would be harmed by supporters or members of the PA Government. It regarded as "vague and unconvincing" his claim to have investigated Mahinda Wijasekera, the former Deputy Minister for Housing and Construction in the PA Government and it rejected that claim essentially because it lacked credibility. 18 In relation to Jagath Pushpakumara, the Deputy Minister for Livestock Development and State Infrastructure after the 1994 general elections, the Tribunal characterised the appellant's evidence as "contradictory" and "scant, vague and inherently unconvincing". Further, the Tribunal thought that the appellant "appeared to be concocting evidence" when attempting to explain why he would be of continuing interest to Pushpakumara. As a consequence, the Tribunal did not accept that the appellant genuinely feared being harmed by Pushpakumara or his associates or supporters. 19 Given its rejection of his evidence related to Wijesekera and Pushpakumara, the Tribunal expressed doubts about the appellant's evidence that he had investigated Cooray, a former UNP Government Minister. The last of any such investigations would have been before the 1994 elections. The Tribunal therefore found it "far-fetched and implausible" that Cooray would have maintained an adverse interest in the appellant for years afterwards. 20 The Tribunal examined reports from DFAT and the Dutch Ministry of Foreign Affairs in relation to the "typical" profile of an LTTE supporter and concluded that the appellant did not fit that profile. 21 When considering the evidence given by the appellant regarding his handling of explosives and his abilities as a marksman, the Tribunal observed; 'I find that these statements are far-fetched and illustrative of the significant extent to which the applicant has been prepared to exaggerate and provide untruthful evidence to gain asylum in Australia. I do not accept them.' 22 Unsurprisingly, in light of the specific findings recounted above, when the Tribunal viewed the appellant's evidence as a whole, it was not satisfied that he was a person to whom Australia had protection obligations.

The Federal Magistrate's decision 23 On 17 March 2004, the appellants applied to the Federal Magistrates Court for an order of review of the Tribunal's decision. The matter was listed for hearing before the Federal Magistrates Court on 10 August 2005 but was adjourned until 21 September 2005 as the appellant claimed that a lawyer whom he had retained failed to appear on that day. At the adjourned hearing the appellant appeared unrepresented and made oral submissions to support those embodied in his written contentions of fact and law. 24 The grounds of appeal to the Federal Magistrates Court were almost identical to those in the notice of appeal to this Court which are set out at [31] below. 25 The appellant's case for judicial review focused mainly on what he contended was the failure of the Tribunal to consider his claims that he had made a report implicating 17 or 18 senior army officers in various killings and therefore came to be targeted by the Police and the Army as an LTTE supporter. He further argued that the Tribunal had denied him an opportunity to comment fully on matters affecting his claim including country information concerning the JVP and profiles of Tamils of interest to the authorities. 26 The appellant further submitted that the Tribunal had considered country information contained in reports not provided to him and had failed to take account of his evidence of visits by the Army and Police to his house in 1999 and to his grandmother's house in 2000 and that unknown people had come to his house in February 1997. 27 Mr Hay of Counsel for the Minister before the Federal Magistrates Court argued that country information was not required to be put to the appellant as it was not information specifically about him (s 424A of the Migration Act 1958 (Cth) ("the Act") and Minister for Immigration and Multicultural Affairs v NAMW [2004] FCAFC 264). Mr Hay also submitted that the applicant had been aware that the Tribunal had information to the effect that the JVP was defunct as an underground organisation by 1990 and was no longer a physical threat. Written submissions by the appellant had also addressed the issue. It was also submitted on behalf of the Minister that the appellant was aware of adverse country information and the Tribunal was under no obligation to put that information to the appellant. 28 In his reasons for judgment, the learned Federal Magistrate applied this statement of principle which is to be found in VAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 255, at [16]; 'It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.' 29 McInnis FM had earlier undertaken an extensive review of the transcript of the hearing before the Tribunal, particularly those passages which contained discussion of country information on which the Tribunal ultimately relied in rejecting the appellant's claims. In his Honour's view, having regard to those passages, the Tribunal had clearly addressed in an appropriate manner the claims made by the appellant. Specifically, McInnis FM was satisfied, on a proper reading of the Tribunal's reasons, that it had addressed the issues related to the 17 or 18 army officers. His Honour also concluded that the Tribunal had otherwise relied upon country information of which, he was satisfied, the Tribunal was not obliged to provide further details to the appellant. In any event, his Honour was satisfied that the appellant: '… was cognisant of the general thrust of the country information which did not specifically refer to him but clearly dealt with issues relevant to the application including reference to the LTTE and Tamils.' 30 McInnis FM expressed himself unable to discern any jurisdictional error in the reasons of the Tribunal and considered that the appellant, by his application to the Court, was impermissibly seeking merits review of the Tribunal's decision.

The Appeal 31 The grounds on which the appellant seeks to set aside the orders of the Federal Magistrates Court remain unchanged and substantially replicate the contentions advanced at first instance. Those grounds are; '1. The decision of the RRT was made without jurisdiction or was affected by error of jurisdiction.

2. The decision of the RRT was affected by jurisdictional error and is not a decision to which section 474 of the Migration Act as amended applies.

3. The decision of the RRT is affected by jurisdictional error in the delegate failed to accord procedural fairness to the appellant.

The RRT failed to seek comment from the applicant in relation to the information it used in its decision about the JVP.

The RRT failed to seek the applicant's comments on the information it had on the JVP and the relevance of this information to the credibility of the applicant's claims.

The RRT misled the applicant by indicating that the country information it had about the JVP did not mean that it would not accept the evidence of the applicant.

The RRT failed to give the applicant the opportunity to comment on the country information about the profile of those Tamils of interest to the authorities and that this profile was of importance in considering the first named applicant's claimed to have faced problems in the army after Tamil ethnicity was discovered.

4. The decision of the RRT and the Federal magistrates Court is affected by jurisdictional error in that the tribunal failed to take account of relevant material and took into account irrelevant material and the Federal Magistrates Court erred by agreeing with the decision.

The RRT failed to consider the claims of the applicant that he had made a report implicating seventeen or eighteen senior army officers in various killings and that for this reason he was implicated as an LTTE supporter and targeted by the army and the police.

The RRT failed to consider the claim of the applicant that his house was visited by the army and police in 1999 and March 2000 and that they visited his mother's house in June 2000.

The RRT failed to consider the applicant's claim that unknown people came to his house in February 1997.'

32 At the hearing of the appeal, the appellant contended that the reasons of a Full Court of this Court in M164/2002 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 16 ("M164") had a bearing on the Tribunal's resolution of his application. 33 Counsel for the Minister, on the other hand, identified the following issues as being raised by the appeal; (a) whether the Tribunal had failed to consider specific claims made by the appellant; and (b) whether the Tribunal had failed to accord the appellant procedural fairness by: (i) not putting country information to the appellant for comment; and (ii) denying him the opportunity to comment on country information that had been raised by the Tribunal. 34 At par 6 of his Contentions of Fact and Law, the appellant contended that: '… the Tribunal at no stage during the course of the hearing asked me to comment on the information it used in relation to the information it used in its decision about the JVP.' 35 Further, at par 7 of the same contentions, this submission was made; 'The Tribunal also failed to give me the opportunity to comment on the country information about the profile of those Tamils of interest to the authorities and that this profile was of importance in considering my claim…' 36 The transcript of proceedings before the Tribunal, which I have examined for myself, reveals that the Tribunal received a considerable body of evidence in relation to the appellant's claims. At p 23 of the transcript for 15 June 2000, the Tribunal member pointed out that the JVP had been annihilated in "late 89, early 99" and had no resurgence as an underground organisation since. The Tribunal member continued; 'I have not seen information that correlates, that accords with what you're telling me.' 37 The Tribunal member then discussed its similar difficulty in accepting the appellant's evidence to the effect that he had not been able to gain protection from the Army; that he may still be a target despite no longer holding military rank; that other army officers would regard him as an LTTE supporter and that he was still seen as a threat to people against whom he had caused charges to be brought. At p 25 of the same transcript the Tribunal member is then recorded as having asked: '[w]ould you like to comment on that?' 38 In addition, the transcript records that the appellant discussed the difficulties which he claimed had been caused by his imputed Tamil ethnicity. 39 In the light of these passages, I have been unable to sustain ground 3 of the appellant's grounds of appeal to the effect that the Tribunal had failed to give the appellant an opportunity to comment on matters of concern to it and had thereby denied him procedural fairness. In any event, I regard the information concerning the transition of the JVP from an underground organisation to a mainstream political force and the typical profile of Tamils at risk of persecution as information that was not specifically about the appellant or, in respect of Tamils, that was just about a class of persons of which the appellant was taken to be a member. Accordingly, the information was of the kind described in sub-s(3) of s 424A of the Act, which provides; '(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies-by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention-by a method prescribed for the purposes of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.' 40 The Minister's invocation of that section raises two issues. The first is whether the country information wasinformation that the Tribunal considered would have been the reason, or a part of the reason, for affirming the decision that was under review so as to oblige the Tribunal to invite the appellant to comment on it, as required in s 424A(1). Secondly, if so, whether the information came within the exception carved out by s 424A(3) because it was not specifically about the appellant or another person and was just about a class of persons of which the appellant or other person was a member. 41 In Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, Merkel and Hely JJ observed, at [114]; 'Section 424A(1) only requires disclosure of information that would be a reason or part of the reason for the decision of the RRT to affirm the decision of the delegate. As was observed by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 206 ALR 471 ("VAF") at 478 [29] the question of compliance with s 424A(1)(a) "is to be judged retrospectively in light of the tribunal's actual decision".' 42 Several extracts from the Tribunal's Decision and Reasons for Decision indicate what it regarded as the reason or part of the reason for affirming the decision of the delegate of the Minister. In the first place, it was observed, at p 12 of those reasons; 'Having regard to the nature of the applicant's evidence and to the country information set out above, the question of the applicant's credibility is central to the determination of his application for review.' 43 After noting, at p 13, that the appellant's evidence was inconsistent with country information, the Tribunal went on to explain, in some detail, why it rejected the appellant's claim that his name had been on an LTTE hit-list. In the same passage it expressed the view that it was "far-fetched" that the LTTE would have maintained an adverse interest in the appellant for more than a decade after he had investigated that organisation. 44 At pp 14 and 15 the Tribunal explained as follows its assessment of the claimed threat of violence against the appellant by the JVP; '… I accept as authoritative the reports by the UK Home Office and DFAT (CX10078) to the effect that the JVP had been destroyed as an armed militant force by 1990, and that the JVP has since entered mainstream Sri Lankan politics. … As the JVP was destroyed as an armed militant force by 1990, I do not accept the applicant's evidence to the effect that the JVP engaged in threatening or violent conduct after that time.' 45 Similar reliance on country information is to be found in this reference at p 17 of the Tribunal's reasons; 'I also refer to the reports of DFAT (CX12970 and CX21595) and the Dutch Ministry of Foreign Affairs concerning the "typical profile" of a suspected LTTE supporter. The applicant clearly does not fit this profile.' 46 Those passages make clear that the Tribunal resorted to several official sources for general information about conditions in Sri Lanka as supplying at least part of the reason for affirming the decision of the delegate of the Minister to refuse the appellant a protection visa. 47 I am satisfied on the evidence supplied by the transcript of the hearings before the Tribunal that the appellant was given ample opportunity to comment on that country information and explain why it did not preclude a finding that he had a well-founded fear of persecution for a Convention reason. 48 In any event, the information to which the Tribunal had regard was, of its nature, clearly not specifically about the appellant or another person. Rather, it was just about classes of persons being the members of the LTTE, the members of JVP and ethnic Tamils as a group. Accordingly, s 424A(3)(a) of the Act operated to exclude any obligation on the Tribunal to give the appellant particulars of that information. 49 Paragraph 4 of the appellant's grounds of appeal is answered by these extracts from p 5 of the Tribunal's reasons for decision; 'The applicant said he feared particular politicians, and army officers who he investigated as being responsible for executions of people on behalf of these politicians… [emphasis added] …He also gave evidence that the police and the army went to his house in March 2000, and his wife's house in December 1999. In addition, his mother told him last week that the police and the army had recently approached her and that they suspected that the applicant was linked with the LTTE on the basis of his intelligence reports.' 50 In relation to the "unknown people" referred to, in the third paragraph of particulars to par 4 of the grounds of appeal, as having come to the appellant's house in February 1997, the transcript of the Tribunal hearing conducted on 18 May 2000 records, at p 57, that the appellant, in response to a question, "How did you know it was the JVP?" replied; 'Because, ma'am, my house was in Battaramulla, as I said before. As I said to you before. The - whoever who military personnel go out of that nearest detachment is supposed to be that sort of a searches in that area. So I was told by my wife that some people came last night and they searched the house and they made remarks saying that, "Your husband is LTTE. LTTE in the army and he will be killed", and they have pretended like army personnel. Then I checked up with the detachment at Battaramulla army camp, (indistinct) air force army camp and Kabulumulla another, nearest army camp, whether they have sent any patrols out or whether they have sent any army personnel out for searching, and they said, "No". They said, "No". Then the only people who was suspected by me that would have gone is JVP people.' 51 That evidence was recounted in these terms by the Tribunal at p 8 of its reasons; 'The applicant said that the JVP had searched his house in Colombo in 1997, before April, while he was living in the army camp. He knew that it was the JVP because his wife had told him that the people who searched the house had told her that the applicant was an LTTE operative within the army. They were pretending to be army officers. The applicant checked if the army had searched his home, but they had not. It could therefore have only been the JVP who searched his home.' 52 The learned Federal Magistrate in his reasons set out in some detail the findings made by the Tribunal and was satisfied that the Tribunal had considered all of the numerous matters raised by the appellant. In my opinion, his Honour correctly concluded that the Tribunal had not failed to consider the matters raised by the appellant and had merely declined to make the findings of fact which the appellant's version of events invited. Accordingly, I agree with the learned Federal Magistrate that no jurisdictional error can be discerned in the Tribunal's treatment of the application. 53 Essentially, the Tribunal's decision turned on its inability to accept as credible, the appellant's evidence related to a number of crucial facts which he propounded as the basis of his fear of persecution. The Tribunal explained that assessment of the appellant's credibility by describing his evidence as "inconsistent with country information", "incongruous", "vague", "far-fetched" and "unconvincing in significant respects". Accordingly, the Tribunal's finding on this aspect was indistinguishable from that analysed by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405. In that case his Honour observed, at 417; 'However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.' 54 For this Court, or the Federal Magistrates Court, on judicial review, to give effect to a different view of the appellant's credibility the formation of which, as McHugh J pointed out, is "a function of the primary decision-maker par excellence," would be an impermissible usurpation of the Tribunal's task of merits review. 55 On the hearing of the appeal, the appellant referred to a recent judgment of a Full Court of this Court in M164/2002 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 16. In that case, Lee J, with whom Tamberlin J agreed, identified a jurisdictional error by the Tribunal consisting of its characterisation of certain documents, including a newspaper article and letters from a school principal, a Baptist clergyman and some tenants of premises owned by the appellant, as "contrived", "not genuine" and "self-serving". Apart from the fact that the documents had been belatedly submitted and an indication on the letterhead which led the Tribunal mistakenly to doubt the authenticity of the letter from the school principal, the Tribunal advanced no reason for stigmatising the documents in that way. 56 Accordingly, Lee J concluded, at [89]-[92]; '89 In its treatment of the process of review the Tribunal failed to accord the appellant the fair procedure required by the Act. There was no material before the Tribunal on which it could make the finding that the documents presented by the appellant had been fabricated for the purpose of the claims. The statement by the Tribunal that the documents were not genuine was a bare assertion. The Tribunal did not identify in any respect how the documents could be so characterised. This was not a case where the Tribunal, on proper grounds, had already determined that the substantive claims of the appellant were dishonestly made and, therefore, any documentary material that purported to corroborate those claims necessarily bore the same stamp. If an applicant's claims are palpably fanciful, or important elements thereof are shown to be false, those circumstances will permit the Tribunal to disregard other material presented by the applicant in support of those claims. (See: Abebe v Commonwealth(1999) 197 CLR 510 per Gleeson CJ, McHugh J at [84]-[85]).

90 However, serious findings of forgery, fraud or perjury cannot be based on a superficial examination of relevant events and materials, particularly where the conclusion reflects no more than a suspicion held by the Tribunal, and where that suspicion remains untested by reasonable use of powers available to the Tribunal to have further enquiries made in exercise of the Tribunal's inquisitorial function.

91 If the Tribunal fails to carry out a review proceeding that accords with practical requirements of fairness, it conducts a proceeding, and makes a determination, that is not authorised by the Act. That is to say the Tribunal does not have "jurisdiction" or authority to purport to make such a decision and the decision will be subject to judicial review by issue of constitutional writs. (See: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002(2003) 198 ALR 59 per Gleeson CJ at [5]-[9]; McHugh, Gummow JJ at [34]-[37]; Kirby J at [116], [127]-[128], [138]).

92 The Tribunal's treatment of the documentary material relied upon by the appellant to support her claims tainted the review process with fundamental unfairness. For the reasons outlined above the decision of the Tribunal was not a determination made in accordance with the Act. (See: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 197 ALR 389 per Gummow, Callinan JJ at [32]; VEAL at [10]).'

57 In the present case, by contrast, the Tribunal's decision did not turn on a characterisation, without any or any adequate reasons, of documents as fraudulent, contrived or self-serving. It depended rather, on its assessment, in the light of country information and ordinary human experience and after directly observing the appellant's demeanour, of the probability that his claims were true. The Tribunal, when it considered the claims in that way, was not satisfied, as required by s 65, which directs attention to s 36 of the Act, that the appellant was a person to whom Australia had protection obligations under the Refugees Convention.

Conclusion 58 The appellant, on the hearing of the appeal, substantially reproduced the arguments which had been advanced on his behalf to the learned Federal Magistrate. For the reasons which I have endeavoured to explain, I regard as entirely consistent with the applicable principles and the relevant authorities his Honour's conclusion that the decision of the Tribunal was not affected by jurisdictional error. The appeal must therefore be dismissed with costs. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate: Dated: 8 December 2006 The appellant appeared in person

Counsel for the First Respondent: Mr S D Hay

Solicitor for the First Respondent: Clayton Utz

Date of Hearing: 20 April 2006

Supplementary written submissions filed: 26 April 2006

Date of Judgment: 8 December 2006