MZWIQ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The appellant is a Tamil Muslim from Sri Lanka, born in 1969. He arrived in Australia on 1 March 1996. He applied for a protection visa on 28 June 1996. That application was refused by a delegate of the Minister on 8 January 1997 and affirmed by the Refugee Review Tribunal on 4 April 1997. The appellant joined the Muin/Lie class action in the High Court on 8 November 1999. Effectively that is the start of his application for judicial review. 2 He appeals from a decision of McInnis FM on 22 March 2005. The appeal raises issues as to the learned Magistrate's refusal of an adjournment and the substantive merits of the decision which, in this Court, were attacked on the basis of an alleged breach of natural justice. The circumstances of the appellant's claims are set out in the decision of the learned Magistrate, MZWIQ v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 503. I shall not repeat them in detail. 3 In essence, the appellant's primary claim was that he feared persecution on return to Sri Lanka by the Sri Lankan authorities on the ground of his imputed support for the Liberation Tigers of Tamil Eelam. There were further grounds alleging a fear of discrimination by Singhalese sporting authorities and the like, but these were not pressed on the appeal. The appellant's account centred around two alleged periods when he was kept in detention and mistreated by the Sri Lankan police and army, those being periods from December 1994 to January 1995, and from May to September 1995. 4 The Tribunal member made firm findings rejecting the appellant's account of those detentions and stating that he had a quite positive state of disbelief that they occurred. In reaching that conclusion the Tribunal referred to a number of matters which before the learned Magistrate and this Court formed the basis of the complaints about breach of natural justice. The first of these was the Tribunal's pointing out that the appellant had relied on letters from employers and others which were produced during the time of his alleged detention. 5 The transcript records the Tribunal referring to these letters and then asking the question: "Just tell me again what date you were released from detention on the second occasion? " Answer: "19 September 1995." Tribunal: "Okay." 6 In my opinion there was no breach of natural justice in the Tribunal failing to make a comment to the appellant that the letters were inconsistent with his account of being in detention. The rule of natural justice allegedly breached is the second of those identified by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 - 592. The first rule is the right to rebut or comment on adverse material from other sources. The second is the obligation on the decision maker: "... to identify to the person affected any issue critical to the decision which is not apparent from its nature, or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material." However, their Honours pointed out that a decision maker is not obliged to: "... expose his or her mental processes or provisional views to comment before making the decision in question." 7 In the present case there was no obligation to draw specifically to the appellant's attention an inconsistency which was obviously open on the written material put by the appellant at the hearing. 8 The second issue arose out of alleged events involving weapons held by the Muslim Home Guard for protection against the LTTE. These weapons had been kept in the house of the appellant's uncle but, according to the appellant, stolen by the LTTE in 1994. The appellant said that the Home Guard had complained about this to a Buddhist priest who was, he said, a powerful figure in the locality. The Tribunal said that the appellant "... was unable to satisfactorily explain why the Home Guard would report the theft to the priest and not to the authorities, particularly as they in fact expected the priest to pass on the information to the police." 9 In fact, this point was specifically put to the appellant, as the following passage demonstrates: Question: "I want to know, if you told the authorities, did you tell the police or the army or the local mayor, did you tell any one in authority that the weapons had been stolen?" Answer: "I told the home guards that such a thing has happened and they have gone and told Thimbulagala who was more stronger than even the police or the army in the area." Question: "In what way was he stronger than the police or the army?" Answer: "He was a Buddhist priest. The whole country would of oblige to what he says." Question: "Why wouldn't you tell the army or the police that weapons have been taken?" Answer: "If I go to the army or to the police they might take for granted that we are being trying to help the Tigers and would of arrested me immediately." 10 Question: "I guess it is very unlikely, there is no record of the Muslims ever supporting the LTTE and, in fact, you, yourself, stated that the Muslims were protecting themselves against the LTTE. So why would the police think that you'd be helping the LTTE?" Answer: "I tell them that the LTTE have taken away the arms but they were definitely taking for granted that I have helped the LTTE." Question: "Why did the home guards tell the priest about the weapons?" Answer: "He was a very influential priest and almost all the people in the area respected him as a local authority." 11 And the questioning continues. So plainly this matter was brought to the appellant's attention. 12 Finally, the Tribunal referred to the "extensive inconsistencies" in the appellant's evidence, and between his evidence and other documents, and concluded: "... having regard to his demeanour, which lacked candour and frankness, the Tribunal has a positive state of disbelief that the applicant was ever detained by the Sri Lankan Security Forces, or that he was suspected of having links to the LTTE." 13 There is no obligation on a Court or by a Tribunal to make observations in the course of a hearing about possible aspects of demeanour. This would be quite impractical. If, for example, the party disputed that he had manifested the demeanour observed by the Court or Tribunal, would there have to be a trial within a trial to determine whether that demeanour had in fact been displayed? 14 A case referred to by counsel for the appellant, Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 dealt with a special and quite different situation, namely, when there was a finding made on the basis of demeanour, not of a witness in the witness box but seated in the body of the Court outside the line of sight of counsel. 15 In my opinion it has not been shown that the learned Magistrate erred in concluding as he did that there had not been any denial of natural justice or procedural fairness, and that there had been a finding reasonably open to the Tribunal in relation to credibility that, as is often stated, is a matter par excellence for a Tribunal to determine. See Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. 16 Finally, the question of the adjournment. The appellant was unrepresented before the learned Magistrate. He told the learned Magistrate that he applied for pro bono assistance and that had been refused. He said he had only received the Court Book on 15 December 2004. From the bar table he advised that he had sought assistance from the Sri Lankan community and had been advised as recently as the previous Sunday that some assistance would be provided. In opposing the adjournment counsel for the Minister pointed out the chronology of events, which revealed that the decision of the Tribunal had been delivered back in 1997. 17 The appellant had not filed any contentions of fact and law. The current application before the Court had been filed on 24 May 2004, which was the subject of orders by a Registrar made on 20 October 2004, which included listing the matter for the day of the hearing before the learned Magistrate, that is 22 March 2005. There was a further order made by the Court on 22 March 2005 altering the timetable. The appellant had not filed any contentions of fact and law but relied upon the application as filed. The Minister had filed contentions of fact and law on 16 March 2005 which had been served upon the appellant. The learned Magistrate said: "In my view, having regard to the chronology of events, despite the best efforts of the applicant he has been unable to obtain appropriate legal assistance during the time available. The chronology of events indicates that there has been in my view a significant time delay between the time of the original decision and the time of the applicant taking proceedings, first to the High Court, then the Federal Court, and in this Court. In my view he has had adequate opportunity to make arrangements, if they could be made, for legal representation and I do not regard it as being in the interests of justice for there to be any further delay in these proceedings. It seems to me that where there is an absence of evidence in an appropriate form that there is some real prospect of representation being arranged in the foreseeable future that it is inappropriate for the Court, in the exercise of its discretion, to permit an adjournment, particularly in cases of this kind where the Court is confronted with a decision of the RRT dated 4 April 1997. A period of almost eight years has elapsed since the decision was made, and at least a period now of almost 10 or 11 months since the application was filed in this Court." 18 The decision to refuse the adjournment was a discretionary one. The appellant has not shown any error in the exercise of that discretion such as would attract the grounds of review of a discretionary decision. See House v The King (1936) 55 CLR 499. 19 Also, while counsel for the Minister did not advance any specific grounds for prejudice, there is prejudice in a general sense in the sense that it is in the public interest that judicial review of immigration decisions be disposed of with reasonable promptness. I therefore dismiss the appeal with costs.