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[2002] FCA 331
respondent. Application dismissed; applicant ordered to pay the respondent's costs (Orders dated 25 March 2002).
The applicant, a Sri Lankan Tamil, sought judicial review of a Refugee Review Tribunal decision that affirmed refusal of a protection visa. The Tribunal made adverse findings about credibility and plausibility, concluding parts of the applicant's account were fabricated. Moore J found s 474 of the Migration Act applied to the Tribunal decision, analysed the grounds (including arguments under Chan and alleged failure to consider relevant matters) and concluded no error of law was shown. The application was dismissed and costs were awarded to the Minister. The Court also flagged potential professional misconduct in how the proceedings were commenced and proposed to refer the matter to regulatory bodies (paras 1-20, 21-28).
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NABD, a Sri Lankan national of Tamil ethnicity, arrived in Australia on 13 June 2001 and applied for a protection visa on 18 June 2001 (para 2). A delegate refused the visa on 7 August 2001 and the applicant sought review by the Refugee Review Tribunal (the Tribunal) on 8 August 2001 (para 2). The Tribunal conducted a hearing, summarised the applicant's account and country‑related evidence, and reached adverse factual conclusions about the applicant's credibility. The Tribunal accepted certain basic points, that the applicant was Tamil, that his elder brother had been killed in 1987, that his younger brother died in Colombo in 1999 and that the applicant had on occasion been coerced into transporting LTTE weapons and casualties, but found numerous inconsistencies, implausibilities and apparent fabrications in the applicant's accounts of detention, torture, escape and prolonged concealment (paras 3‑15; in particular paras 8‑13 and 15). On 24 October 2001 the Tribunal affirmed the delegate's refusal to grant a protection visa (para 1, para 15).
3 cited instruments linked from this judgment.
The applicant applied to the Federal Court for judicial review. Before Moore J, the applicant contended principally that (1) s 474 of the Migration Act 1958 (Cth) did not apply to the Tribunal's decision, (2) the Tribunal had erred in its application of the principles from Chan v Minister for Immigration & Ethnic Affairs, and (3) the Tribunal had taken into account irrelevant considerations and failed to take into account relevant considerations (paras 16‑18). Moore J found that s 474 did apply (para 16), and that the substantive attacks on the Tribunal's decision were without substance, in particular, the Court would not supplant the Tribunal's assessment of credibility and plausibility where those assessments were supported by reasons (paras 17‑20). The application was dismissed and costs awarded to the Minister (Orders and para 20). Separately, the judge expressed serious concerns about how the proceedings had been commenced, involving a firm of solicitors and a migration agent, and proposed to refer the judgment to the Law Society of New South Wales and the Migration Agents Registration Authority (paras 21‑28).
Two core themes drive Moore J's reasoning: the legal effect of s 474 and respect for Tribunal fact‑finding and credibility assessments.
s 474 and the Court's footing (para 16). Moore J addressed the applicant's preliminary submission that s 474 did not apply. He concluded that the Tribunal's decision was a 'privative clause decision' under s 474(2)(b), and that nothing in Part 8 of the Act limited s 474's operation. Accordingly, the Federal Court's supervisory jurisdiction was to be exercised on the footing that s 474 applied. That finding frames the extent of reviewable error the court would entertain.
No error in applying Chan or in treatment of considerations (paras 17‑20). The applicant asserted that the Tribunal had misapplied Chan and that, even on the facts the Tribunal accepted, the applicant necessarily had a well‑founded fear of persecution. Moore J rejected that argument, observing that it is not self‑evident that accepted facts (for example, a brother's death and some coercion by the LTTE) compel a legal conclusion of well‑founded fear, whether those facts amount to a Convention ground is an evaluative judgment for the Tribunal (para 18). The Court analysed the claimed omitted or improperly considered factors and concluded the Tribunal had addressed each matter identified; many of the matters were central to the applicant's own account and bore directly on credibility. Where the Tribunal considered the issues and gave reasons for its findings of fabrication, inconsistency and implausibility, Moore J was not persuaded that a legal error had been shown (paras 18‑20).
Credibility is the Tribunal's province (paras 8‑13, 20). Moore J emphasised the Tribunal's detailed findings: inconsistent accounts, improbable episodes (for example the escape at a funeral with no prior knowledge of the escape plan), and activities inconsistent with someone in enforced hiding. These were not bald conclusions: the Tribunal gave reasons why parts of the applicant's account were implausible and likely fabricated. That makes the case a classic example where appellate intervention is inappropriate absent an identified legal error.
Procedural/ethical observations (paras 21‑28). The judge also turned to an adjunct but important procedural matter: who had actually instructed the solicitors, the role of a migration agent, and whether the firm David Cohen & Co had been properly on the record. Moore J described the circumstances as raising 'potentially serious questions' and expressed intention to send copies of the judgment to the professional regulators (para 28). Those observations are obiter with respect to the substantive decision, but they carry regulatory significance.
Before this decision, the legal framework included the Migration Act as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which introduced provisions like s 474 aimed at restricting judicial review in certain administrative decisions. The principal legal test for reviewability is supplied by administrative law and the High Court's articulation in Chan and related authorities concerning jurisdictional error, errors of law, and limits on fact‑finding interference.
Moore J's decision does two things in that landscape:
It confirms application of s 474 to Tribunal decisions in this factual setting, and that the Federal Court must proceed on the footing that s 474 operates (para 16). Moore J did not have to resolve broader constitutional or interpretive questions about those amendments; his practical conclusion was that s 474 applied and that the substantive grounds failed.
It restates the orthodox approach to credibility findings: a Tribunal's detailed findings about fabrication and implausibility will not be disturbed by the Court simply because another view could have been taken. The decision reinforces restraint on review where the Tribunal has engaged with evidence and provided reasons (paras 8‑13, 20).
The judgment does not alter the Chan principles; it applies them to decline review in the particular circumstances.
Para 16: "In my opinion, it is plain that the decision of the Tribunal in this matter is afforded such protection as is provided by s 474."
Para 18: "It is by no means self-evident that a person in this position must be accepted as having a well founded fear of persecution. That was a matter for the Tribunal to assess, as it did."
Para 20: "The issues raised by the applicant are, in my opinion, without substance... The application should be dismissed with costs."
Para 28: "It appears to me that the circumstances... raise potentially serious questions about the conduct of David Cohen & Co and/or Champa Buddhipalla."
This decision is most directly relevant when:
Practitioners should appreciate that a factual file which demonstrates the Tribunal's engagement with the evidence and reasons for adverse findings will be difficult to overturn on review unless there is a clear legal error.
This judgment itself does not catalogue subsequent treatment by other courts. Within the four corners of this decision, Moore J applied settled principles (privative clause analysis and the limits on appellate interference with credibility findings) rather than establishing a novel rule. For practitioners, the decision is a reminder of two trends in early 2000s migration litigation: statutory attempts to curtail judicial review (s 474) and judicial insistence on showing legal error rather than simply disagreeing with fact findings. To identify how later courts have relied on or distinguished NABD v Minister for Immigration and Multicultural Affairs, targeted database research (AustLII, LawCite, commercial services) should be undertaken, because Moore J did not purport to announce any ground‑breaking reinterpretation of Chan or the Migration Act beyond the application of s 474 to the Tribunal decision in this case (para 16).
The full scope and limits of s 474. Moore J concluded s 474 applied and proceeded on that footing, but expressly declined to examine at length the broader effect of the 2001 amendments (paras 16, 20). Questions about the ultimate constitutionality or detailed operation of s 474 in different factual contexts remain dependent on other authorities.
The boundary between credibility‑based error and reviewable legal error. Moore J accepted the Tribunal's factual conclusions where reasons existed. But there will be close cases where credibility findings mask legal error, for example by mischaracterising material country information or applying an incorrect legal test. The decision does not map the precise line; it reaffirms the need for applicants to identify legal error, not just disagreement.
Interaction with country information. Moore J noted the Tribunal had regard to independent country information in assessing the applicant's claims (paras 14, 19). How detailed or contemporaneous such material needs to be before it can displace or support credibility findings is case‑specific.
Professional conduct and litigation commencement. Moore J's referral‑style comments (paras 21‑28) raise questions about safeguards practitioners and courts should implement to ensure proper instructions and appearances; systemic answers require regulatory policy, not judicial decree.
Practical appellate strategy post‑s 474. Given the privative clause's presence, appellate strategy must focus on identifying genuine errors of law (reasoning failures, misconstruction of statutory tests, jurisdictional error) rather than re‑arguing factual inferences. NABD illustrates the difficulty of success when the case turns on competing factual pictures.
Conclusion: NABD is a compact illustration of judicial restraint in migration review. It demonstrates the practical effect of a privative clause in constraining review, and it illustrates that detailed Tribunal reasoning about credibility and plausibility will usually be decisive unless legal error can be shown.
Introduction 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 24 October 2001, in which the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the applicant a protection visa. The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 ("the Convention").
Background 2 The applicant, who is a citizen of Sri Lanka, arrived in Australia on 13 June 2001. On 18 June 2001 he lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) ("the Act"). On 7 August 2001 a delegate of the Minister refused to grant a protection visa. On 8 August 2001 the applicant sought the review of that decision by the Tribunal.
The Tribunal's reasons 3 In a section in its reasons for decision headed "Claims and Evidence", the Tribunal summarised the claims made by the applicant in support of his application. The following is a summary of those claims. 4 The applicant is a Sri Lankan national, of Tamil ethnicity, who was born on 29 January 1966 in Kodikaman, about eighteen miles from Jaffna in the Northern province. He lived in Jaffna from 1966 until 1995, when he moved to Vavuniya, where he resided (in different suburbs) up until shortly before his departure for Australia in 2001. The applicant completed his education in 1983. In 1984, while he was residing with his family in an area known to be a target for attacks by the army, the house in which he was living was destroyed. Some years later, on 24 December 1987, the applicant's elder brother was shot dead by LTTE members at the counter of a bar he owned which was near a security forces check point. A note left on his body indicated he was killed because he was suspected of giving information to the security forces. This incident took a toll on his father who developed heart problems and later died, in 1992, of a heart attack. 5 Between 1990 and 1993 the applicant was employed as a labourer with the Railway Department. In 1993 the applicant left his job with the Railway Department and took up employment as a minibus driver. He was employed to drive between Jaffna and Palali. During this period he was forced, by the LTTE, to transport LTTE heavy weapons and casualties. In 1995, in the face of pressure by the LTTE to move to the LTTE controlled area of Vanni, the applicant and his family moved to Vavuniya, which was controlled by the army. There, he obtained finance to purchase a bus which he used to transport people. In early 1997 the LTTE began commandeering his bus about once every three months for the purpose of transporting their weapons and casualties. In 1998 the LTTE forced the applicant's younger brother to join them, and the family had no further contact with him after December 1998. 6 On 1 May 1999 the applicant was arrested by four armed police and taken to the police station in Vavuniya. There, he was interrogated about his family and his brothers and accused of being an LTTE supporter. He was tortured and kept in detention until 17 May 1999. On 16 May 1999 his mother came to see him while he was being detained. She informed him that his younger brother had been shot dead by the army in Colombo. She told the applicant that the body was to be brought home the following day, 17 May 1999, when the funeral would take place. The applicant, through the efforts of a Sinhalese man who negotiated on his behalf, gained permission from his captors to attend the funeral. On his arrival at the funeral under police escort, the applicant was advised by the Sinhalese who had gained his temporary release that a plan had been formulated for him to escape from police custody while at the funeral. He was instructed to go to the toilet, then make his way to the back of the house where a car with a driver awaited him. He got into the car and after driving for a short while, was asked where he wished to be taken. The applicant indicated a nearby suburb where he had a male relative, with whom he stayed until December 1999. 7 During the period the applicant stayed with his relative he became aware that the police were trying to locate him. He then moved to another area and made contact with a businessman friend of his who gave him the name of an agent in Colombo. The applicant then moved again to another suburb where he remained until May 2001. On 9 May 2001 his businessman friend contacted him and informed him that his travel documents were ready and he would be departing Colombo on 12 June 2001. The applicant then travelled to Colombo, arriving there on 12 June 2001 where he met the agent who provided him with a Canadian passport, visa and airline ticket. He left Sri Lanka the same day, arriving in Australia on 13 June 2001. 8 The Tribunal set out its findings in a section in its decision titled "Findings and Reasons". It detailed inconsistencies in the various accounts provided by the applicant. It referred to a submission by the applicant's adviser that the services of an interpreter had not been used until shortly before the applicant appeared before the Tribunal, and a submission that all previous information contained in the applicant's applications, submissions and statements should not be accepted as being accurate because of this. However the Tribunal considered the applicant not to have been "consistent in his evidence." It stated: "I am unable to accept that he was altogether truthful in giving evidence to the Tribunal. The various accounts given by the applicant were contradictory and inconsistent. It was clear at the hearing that the applicant exaggerated some parts and fabricated other parts of his evidence, and some of his evidence was inconsistent with the independent information. I am unable to accept that the applicant was a credible witness." 9 While accepting the identity of the applicant, and the claim that the LTTE had killed the applicant's older brother, the Tribunal did not consider the death of the applicant's father to have been a consequence of the act committed by the LTTE. It said: "While I accept that the applicant's father may have died in 1992, I am unable to accept that it is plausible that the death of the brother influenced the father to such an extent that he became a heart patient and died from a heart attack in 1992. I am of the view that this claim was made to enhance the applicant's claim to be a refugee." 10 In relation to the applicant's employment as a bus driver, and the coercion of him by the LTTE to transport their weapons and casualties, the Tribunal considered it "plausible that such activities would have happened in that time when the Jaffna area was under the control of the LTTE." It accepted the applicant and his family had then moved to an area controlled by the army, in an attempt to escape the LTTE, but in relation to the applicant's claim that his younger brother was made to join the LTTE in 1998 it said: "It is my view that it is implausible that a Tamil man, who was 26 years old at the time, would be recruited by the LTTE in the Vavuniya area, an area under government control, when he had not been recruited in, and had moved from, the LTTE controlled area of Jaffna. … It is plausible that such a thing could happen in areas under the control of the LTTE, especially for teenagers and young men, but not for a mature working man in a government controlled area to the south of the LTTE controlled areas in the north and east of Sri Lanka. In any case, it was the evidence of the applicant at the hearing that when he claimed to have been in detention in May 1999, his family had not heard from his younger brother for a few days. It is my view that the applicant fabricated his evidence in this regard to provide himself with an association with the LTTE to enhance his profile of a refugee." The Tribunal did, however, accept that the applicant's younger brother died in Colombo, but not that it had necessarily anything to do with involvement with the LTTE. 11 Similarly, in relation to the applicant's claim that his bus was commandeered by the LTTE in the same area, the Tribunal stated: "(I) am unable to accept that the applicant's bus was taken from him about once each three months commencing in early 1997, by and for the use of the LTTE in the Vavuniya area. It is my view that it is implausible that such a thing could happen in the Vavuniya area, an area under the control of the government and army, and with the commensurate check points, patrols and random identity checks that such control would involve." 12 In relation to the account provided by the applicant of his period of detention in May 1999, during which he was accused of supporting the LTTE and interrogated about his brothers, the Tribunal found: "I accept that the applicant may have been questioned by the police in May 1999 about his younger brother's death. However, I am unable to accept that the applicant was detained and tortured by the police as he had claimed, that he was released by the police after the applicant's younger brother was shot in Colombo and his body was returned to Vavuniya for burial, or that his family procured, organised and conducted his escape from police custody at the brother's funeral in the circumstances claimed by the applicant. I am of the view that the several accounts given by the applicant in relation to this claim were fanciful, implausible and lacked credibility, and were fabrications to give him the profile of a refugee." The Tribunal then addressed the account of the applicant's escape from custody and subsequent time spent in hiding. It said: "I am unable to accept that the applicant's evidence of his escape was credible. He claimed that policemen were bribed to effectively look the other way while the applicant escaped out the back door of his house while his younger brother's funeral was taking place. … The applicant claimed that prior to attending the funeral he knew nothing of the planned escape. When he exited the rear door of his house and entered the car taking him away, it was his evidence that the driver had no knowledge of where he was to take the applicant. Yet it was also the applicant's evidence that police were bribed, not only to procure his release from the police station, but also for the police to ignore the applicant at the funeral, and that a car and driver were in position at the rear of his house for his escape. With such organisation to influence and bribe the police and provide a means of escape, it would be inconceivable that the applicant had no knowledge of such arrangements, or that something so critical and essential to the escape plan as a destination should have been ignored. It was the applicant's evidence that while in the car he decided the destination for his escape, as the driver had no instructions where to take him, and where and with whom he would hide. As for the applicant's evidence about where and for how long he was in hiding, I am again unable to accept that the applicant's evidence was credible. … Effectively, it was the applicant's claim that he lived in hiding for over two years in close vicinity to his home. It was also his evidence that he was married in January 2000 and attended the christening of his son shortly after that, both events during his purported period of hiding. It is my view that this would have been improbable, if not impossible, in light of the fact that it was the applicant's evidence that the police and authorities were looking for him, and the nature of the identity checks, check points and army patrols in that part of the country. Further, these are not the actions of someone who claimed to be an escaped fugitive, in mortal fear of his life and was seeking to evade the detention and interest of the authorities and police." 13 The Tribunal concluded, after making these findings, that the evidence had been fabricated by the applicant to give him the profile of a refugee in light of his younger brother's death in Colombo in May 1999. 14 Turning next to the applicant's claim of persecution if forced to return to Sri Lanka, owing to his Tamil ethnicity and his illegal departure from Sri Lanka, the Tribunal discussed the possible outcomes he would face on his return. It said: "I am unable to accept that the applicant's return to Sri Lanka would necessarily alert the authorities to his illegal departure, given that he is able to obtain a laissez-passer on which to re-enter Sri Lanka. However, this raises the issue in relation to the applicant's illegal departure from Sri Lanka, which is that the applicant has breached Sri Lankan law in making an illegal departure. Notwithstanding the independent information that indicates that there would appear to be no cases of failed asylum seekers having been prosecuted and sentenced under the new immigration provisions for illegal departure, should the applicant be questioned in relation to his illegal departure, any prosecution, in my view, pursuant to a law of general application does not constitute persecution for a Convention reason. There is no evidence before me that the Sri Lankan authorities impute to Tamil persons who depart illegally from Sri Lanka or who unsuccessfully apply for asylum overseas a political opinion in support of the LTTE. In respect of returned Tamils without identity documents the independent information indicates that there is a risk of detention under the emergency regulations or the prevention of terrorism regulations at check points in Colombo. However, it also indicates that there are new procedures to allow returnees to stay at boarding houses or with relatives in Colombo until they receive their identity cards. They are then allowed to return to the area where they come from without difficulty. However the applicant is not necessarily in this situation. It was his evidence that his identity card and pass are with his family in Vavuniya, and on his return to Sri Lanka, he has access to these documents to prove his identity and residence. In this regard, I am unable to accept the applicant's claim that his national identity document and travel pass were lost in the post to Australia. The applicant's evidence with regard to this claim was vague, inconsistent and implausible. … I am of the view that this claim was made at the hearing because it was the reasoning of the delegate that the applicant's identity documents would facilitate his return to Sri Lanka and his home area." 15 The Tribunal concluded by finding, on all the evidence, that the applicant was not a person to whom Australia had protection obligations under the Convention, and affirmed the decision not to grant a protection visa.
Issues raised in the application and their resolution 16 Counsel for the applicant made several submissions in support of the application. The first was a threshold argument that s 474 had no application to the decision under review. That and related provisions were introduced into the Act by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). As will be apparent shortly, it is unnecessary to consider generally the effect of these amendments. Nonetheless it is necessary to deal with the specific submission that s 474 has no application. It was not made by reference to any particular provision introduced by the amendments. In my opinion, it is plain that the decision of the Tribunal in this matter is afforded such protection as is provided by s 474. The decision of the Tribunal is, by operation of s 474(2)(b), a privative clause decision as defined. Neither that section nor any other section in Part 8 operates, expressly or impliedly, to limit the operation of s 474 on a decision of the Tribunal. Accordingly the jurisdiction of the Federal Court of Australia (that the Minister concedes exists) deriving from s 39B of the Judiciary Act 1904 (Cth) is to be exercised on the footing that s 474 operates on the Tribunal's decision. 17 The challenge to the decision of the Tribunal was advanced on the applicant's behalf on two grounds. The first was that the Tribunal had erred in law in its application of the principles emerging from Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. The second was that the Tribunal had taken into account irrelevant considerations and failed take into account relevant considerations. Before considering whether it is necessary to explore the effect of s 474 and related provisions, it is convenient to consider whether either of these grounds are of substance. 18 As to the first ground, counsel for the applicant submitted that even having regard only to that much of the applicant's account of his experiences in Sri Lanka that the Tribunal had accepted, the Tribunal was bound to conclude, as a matter of law, that the applicant had demonstrated a well founded fear of persecution. This submission is untenable. The gist of what the Tribunal accepted was that, during the period the applicant's family lived in Jaffna, the applicant's older brother had been killed by the LTTE and the applicant, as a bus driver, had on occasion been coerced into transporting weapons and casualties for the LTTE. The Tribunal also accepted that the applicant's younger brother died in Colombo as a result of a gun shot wound and that the applicant had been questioned in relation to the death. It is by no means self-evident that a person in this position must be accepted as having a well founded fear of persecution. That was a matter for the Tribunal to assess, as it did. As to the second ground, the following matters were identified as relevant considerations which were not taken into account by the Tribunal: · First, the fact that the applicant's younger brother died as a result of gunshot wounds as evidenced in his death certificate; · Secondly, the fact that the applicant's older brother also died of a gunshot wound in 1987; · Thirdly, the fact that the applicant had been questioned by police about his younger brother's death; · Fourthly, the account given by the appellant of his escape from custody at his younger brother's burial; · Fifthly, the geographical features of Vavuniya city and in particular, the fact that there were surrounding forest areas which provided an easy means of escape and concealment for the applicant if he feared seizure by the police; · Sixthly, the fact that the applicant, quite apart from any connection his brother had with the LTTE, himself had a profile which might lead the authorities to suspect him of LTTE activities; · Finally, the illegal departure of the applicant from Sri Lanka which might lead, not only to his arrest, but his interrogation and torture while in detention because the applicant's background would arouse suspicion. And the following matters were identified as irrelevant considerations which were taken into account: · First, the fact that the applicant's younger brother was not forcibly recruited by the LTTE; · Secondly, the fact that the applicant's younger brother was not shot by the army or that there was no evidence to support the claim that he was shot by the army; · Thirdly, the fact that the Vavuniya area was under the control of the government and army; · Fourthly, that men living and working in the Vavuniya area could not be recruited into the LTTE; · Finally, that Tamils who had illegally departed from Sri Lanka would not suffer persecution if returned by virtue of their illegal departure; 19 In relation to these various matters, counsel for the Minister submitted: · As to the first relevant matter, the Tribunal did accept that the applicant's brother died in Colombo as a result of a gunshot wound. It was a matter considered by the Tribunal, however, the Tribunal did not accept that the death necessarily had anything to do with involvement with the LTTE. · As to the second relevant matter, the Tribunal did accept and take into consideration the applicant's evidence in relation to the death of his elder brother. However, the weight given to that evidence, in the context of the applicant's claim for protection, was lessened by the fact that his brother was killed over a decade ago in 1987 and in Jaffna, where the applicant's family no longer live. · As to the third relevant matter, counsel for the Minister did not directly address this point, but it is apparent from para [108] of the Tribunal's reasons that that it was accepted that the applicant had been questioned by police after his younger brother's death. However, it was not accepted that the applicant was detained and tortured by police as claimed. · As to the fourth relevant matter, the Tribunal considered the applicant's account of his escape from custody but simply did not regard the applicant's evidence on that point as credible and did not accept his account. · As to the fifth relevant matter, the Tribunal considered the applicant's evidence about being able to escape recognition by the police in Vavuniya at paras [113] to [114] of its reasons for decision. However, the Tribunal doubted the applicant's evidence about being in hiding for two years because he had remained in close proximity to his home and had undertaken various activities in public during that period. Essentially, it was an issue of credibility and the Tribunal was entitled to find that the applicant's evidence on the matter was not credible for the reasons given. · As to the sixth relevant matter, the Tribunal did consider whether the applicant had a profile which would lead the authorities to suspect him of LTTE involvement but, after considering his particular circumstances, concluded at para [120] of its reasons for decision that he did not. · As to the final relevant matter, the Tribunal did consider the treatment of Tamils who are returned after an illegal departure in paras [115] to [121] of its decision and at para [87] set out some of the evidence it had before it by way of country information. The Tribunal simply did not accept that the applicant was at risk of persecution as a result of his illegal departure. · As to the first four allegedly irrelevant considerations, they were all matters considered by the Tribunal because they related directly to matters raised by the applicant himself and were therefore dealt with in the context of weighing up and deciding upon the claims and allegations of the applicant. In particular, they were all matters which bore upon the applicant's credibility and the plausibility of his claims concerning his younger brother's activities and the cause of his death. Counsel for the Minister submitted that, given how central those claims were to the applicant's case, matters related thereto were necessarily relevant considerations in the Tribunal' decision making. · As to the final allegedly irrelevant consideration, that was also a matter raised by the applicant himself, as was apparent from the fact that the failure to consider the effect of the applicant's illegal departure was listed as a relevant consideration which the Tribunal had not taken into consideration. 20 In my opinion, the submissions of counsel for the Minister are correct. What is really being attacked are the findings of the Tribunal concerning matters raised by the applicant in the account he gave of his earlier experiences in Sri Lanka and why it was that he did not have a well founded fear of persecution were he required to return. The issues raised by the applicant are, in my opinion, without substance. Accordingly it is unnecessary to take a further step of considering the operation of s 474 on the decision of the Tribunal in this matter. The application should be dismissed with costs.
Other matters 21 Before concluding this judgment I should refer to one other matter. The application for review in these proceedings was filed on behalf of the applicant by a firm of solicitors, David Cohen & Co, and was signed on behalf of David Cohen. This signified David Cohen & Co was retained by and was acting for the applicant. However, the reference or contact name appearing at the foot of the document was Champa Buddhipalla. It appears, from other documents before the Court, that Champa Buddhipalla is a migration agent who at some point was engaged by the applicant perhaps in partnership with another migration agent, Chandrani Buddhipalla. 22 This matter first came before me on 22 November 2001. On that occasion there was no appearance for the applicant, although the matter was mentioned by the Minister's solicitor on behalf of David Cohen & Co. The Minister's solicitor told the Court that David Cohen & Co were trying to ascertain what were their instructions from their client and were unsure whether they would continue to act in the matter. Through the Minister's solicitor, David Cohen & Co requested that the matter be stood over for two weeks. The Minister's solicitor submitted that two weeks was too long a period given that the applicant was in detention and that if David Cohen & Co subsequently decided not to act, two weeks would have passed without the matter being any closer to final determination. I made an order that an affidavit be filed and served by 30 November 2001 setting out the grounds on which the application was maintained and stood over the matter until 5 December 2001. The Minister's solicitor undertook to advise David Cohen & Co of my orders. 23 On 5 December 2001, there was no appearance by David Cohen & Co. The Minister's solicitor advised me that he had written to David Cohen & Co and spoken to Mr Cohen through his secretary to inform him that as he was the solicitor acting on the record, he was obliged to appear in Court for the applicant. Having received no response from the firm, the Minister's solicitor arranged for the applicant to be transported from Villawood Detention Centre to appear in person. The applicant did appear in person and addressed the Court through an interpreter. In response to questions from me, the applicant said that his lawyer was Chandrani Buddhipala, that he had told her to take action but that he had not given her any money at that point. When I asked him whether he believed his lawyer was still acting for him he replied "Yes, I trust her." He explained to the Court that he was experiencing difficulty arranging money for legal representation and as such had not expected that anyone would appear before the Court on his behalf on that day or on the previous occasion. 24 The Minister's solicitor informed me that when he had contacted the telephone number appearing at the bottom of the application filed by David Cohen & Co he found that it was actually the number of the migration consultancy operated by Champa and Chandrani Buddhipala. Mr Buddhipala explained to the Minister's solicitor that he was in some way doing the paper work for David Cohen & Co. The Minister's solicitor informed me that as far as he could tell Mr Buddhipala was neither a member of that firm, nor an employee. The Minister's solicitor said that he had dealt with Mr Cohen as the solicitor from that point onwards and that he had advised Mr Cohen personally of the orders I made on 22 November. I adjourned the matter until 9.30am the following morning (6 December 2001) and made an order that a representative of the firm David Cohen & Co appear before me at that directions hearing. I also ordered that the orders be served on David Cohen & Co by facsimile by 12pm that day. 25 Apparently after Mr Cohen received a copy of the orders later that day he telephoned my associate. He informed her, as he had told the Minister's solicitor, that he was not acting for the applicant. My associate informed him that he remained on the record as the applicant's solicitor. He replied that, as he had never reached the stage of filing a notice of appearance, he did not understand why he had to take formal steps to remove himself from the record. My associate told him that the firm David Cohen & Co appeared on the original application as the solicitor acting for the applicant. At Mr Cohen's request my associate faxed a copy of the original application to Mr Cohen's office. 26 On 6 December 2001, a solicitor, Ms Weate, appeared on behalf of David Cohen & Co and explained that, although the firm was initially instructed to act for the applicant, they no longer were and sought to withdraw. Ms Weate said that Mr Cohen did not believe he was the solicitor on the record. I expressed my concerns to Ms Weate about the manner in which the application had proceeded, in particular the failure of David Cohen & Co to appear on the previous two occasions despite the fact they were the solicitors on the record. I also expressed concerns about how David Cohen & Co had received instructions to file the application and what role Champa Buddhipalla had played in the process. Ms Weate was not an employee or partner of David Cohen & Co and she was unable to explain what had in fact taken place. She was also unable to explain the relationship between Champa Buddhipalla and the firm. I advised her that there were procedures for ceasing to act in the Federal Court Rules and that those procedures should be complied with. On the same day, Mr Patel, a barrister briefed directly by the applicant, appeared on his behalf and subsequently appeared at the hearing of the matter. 27 On 20 December 2001, a notice of ceasing to act was filed by David Cohen & Co with an affidavit in support. The affidavit explained that the applicant had withdrawn his instructions due to financial hardship and annexed a letter from the applicant to David Cohen & Co to that effect. 28 It appears to me that the circumstances in which these proceedings were commenced raise potentially serious questions about the conduct of David Cohen & Co and/or Champa Buddhipalla. It is possible, for example, that Champa Buddhipalla was, in substance, acting as a solicitor on the instructions of the applicant to commence those proceedings but using the name of David Cohen & Co (with or without its consent) to facilitate the commencement of these proceedings in a way that gave the appearance of regularity. If this, in fact, is what has occurred then it may raise questions about that firm's conduct if it was done with the firm's consent. It would also raise questions about the conduct of Champa Buddhipalla. If it was done without the consent of David Cohen & Co (and that firm had not been instructed by the applicant at the time the application was filed) it would raise questions about the conduct of Champa Buddhipalla. The matter, in my opinion, requires further investigation by the relevant authorities and I propose to send a copy of this judgment to both the Law Society of New South Wales and the Migration Agents Registration Authority. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.
Counsel for the Respondent: J Basten QC & S Lloyd
NABD
Minister for Immigration and Multicultural Affairs
(1989) 169 CLR 379
Application dismissed; applicant ordered to pay the respondent's costs (Orders dated 25 March 2002).