NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT WILCOX J: 1 This is an application for orders nisi for certiorari, prohibition and mandamus and for an injunction. The proceeding was instituted in the High Court of Australia. On 9 December 2002 Gaudron J remitted it to this Court pursuant to s 44 of the Judiciary Act 1903. Background 2 The applicant is a Sri Lankan citizen of Tamil ethnicity. He arrived in Australia on 6 October 1995. Three days later he lodged an application for a protection visa, claiming to be a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. 3 The applicant's application for a protection visa was refused by a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs. The applicant sought review of that decision by the Refugee Review Tribunal ("the Tribunal"). Written submissions were provided and, on 31 January 2000, the applicant gave oral evidence at a Tribunal hearing. He was represented at the hearing by a solicitor, Mr D McDonell. Eleven months later, on 27 November 2000, the Tribunal published a decision affirming the delegate's decision. 4 An application for judicial review of the Tribunal's decision was dismissed by Conti J on 8 June 2001: see Visvalingam v Minister for Immigration and Multicultural Affairs [2001] FCA 696. On 14 December 2001 his Honour's decision was upheld by a Full Court: see Visvalingam v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1790. An application for special leave to appeal was dismissed by the High Court on 9 August 2002. 5 On 16 September 2002, the applicant commenced the present proceeding. In a supporting affidavit, he said: "When I made an application to the Federal Court of Australia, natural justice/procedural fairness was not one of the grounds under the Migration Act of 1958 (Cth) upon which an applicant could have sought judicial review. I now make this application after the High Court gave its judgment on Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). The delay to make an application to the Court under what was the [sic] known as the original jurisdiction is owing to, firstly, the unavailability of a ground of judicial review under natural justice/procedural fairness, and secondly, to [sic] the ongoing appeal in the High Court." 6 In a later affidavit, the applicant spelled out details of his claim of denial of procedural fairness. He alluded to two matters. The claimed denial of procedural fairness (i) The newspaper advertisements 7 First, the applicant referred to evidence he had given about events in Sri Lanka. He said he placed two newspaper advertisements to locate a brother who had gone missing in 1994. The applicant told the Tribunal that, following the second advertisement, plain-clothes police came to the place where he was staying, demanded that he publish an advertisement stating his brother had been located and, when he refused, took him to the police station where they detained him for two weeks. In his affidavit, the applicant said the Tribunal member asked questions about the advertisement. The applicant said: "During that line of questioning in relation to the advertisement on my missing brother the Tribunal member did not ask whether I had any evidence or the newspaper advertisement itself on the disappearance of my brother. By that time I had already submitted a translation and the advertisement about my missing brother to my advisor." 8 The applicant went on: "In the decision published by the Tribunal on 27 November 2000, the tribunal member in the decision said that there was no evidence of this referring to the newspaper advertisement I mentioned about in the hearing … Had the tribunal member asked for the evidence before making the decision, I would have been able to advert to relevant evidence. Or had the tribunal member indicated to me during the hearing that the tribunal was not going to believe any unsubstantiated claims, I would have made arrangements to see that the tribunal member viewed the newspaper advertisement I was talking about in the statutory declaration dated 28 February 1996 or during the tribunal hearing. In the RRT decision the tribunal member said that she was not prepared to accept his [the prosecutor's] unsubstantiated claims. The Tribunal member did not make that statement in the hearing. Had the member made this statement during the hearing, the prosecutor would have been alerted of the tribunal's stand on this issue. Consequently the tribunal member rejected the subsequential claims of persecution on this basis." 9 It is true the Tribunal rejected the applicant's claims about the disappearance of his brother, the newspaper advertisements and the consequential activities of him. The Tribunal gave reasons for the rejection in para 53 of its reasons for decision. "I do not accept that the applicant was arrested in March 1995 and detained for 2 weeks because he placed an advertisement looking for his brother. First, I have given reasons above for why I reject the applicant's claim that his brother was taken away by civilians in a white van. Second, the applicant has provided no evidence of this, such as his brother's letters or the newspaper, and I am not prepared to accept his unsubstantiated claims. Third, if the police knew that his brother had been taken and killed, because, as the applicant stated at the hearing, they had killed him, then it makes no sense for the same police to have allowed the applicant to be released on the request of an uninvolved Chief Inspector of police, nor to have tried to pressure him to advertise that his brother had returned. The latter seems much too mild an activity for police who were not only corrupt but were murderers. Fourth, I do not accept the applicant's claim that he was released after intervention by another policeman, the Chief Inspector. The applicant's account of this intervention at the hearing was confused and contradictory. The applicant initially stated that the officer in charge of the police station where he was being held spoke to the Chief Inspector and told him that the applicant was in danger of being 'liquidated', yet he later stated that the Chief Inspector spoke to the officer in charge and had the applicant released. I asked the applicant which version was accurate and he did not respond, merely repeated other parts of this claim. The applicant claimed that the Chief Inspector, and not the officer in charge, had had him released, but he also said that the Chief Inspector had to get the officer in charge to release him because the Chief Inspector was a Tamil and it was difficult for Tamil officers to use their position to get someone released. He also said that the officer in charge, before releasing him, took his fingerprints, which seems illogical if, as the applicant claimed, the officer in charge released him not because he was no longer wanted but because his friend, the Chief Inspector, had asked him to do so. In such circumstances it is unlikely that the officer in charge would want to keep any record of the applicant's arrest or of his release." 10 The proposition, in relation to this matter, put by Mr J Patel, counsel for the applicant, is to the effect that the Tribunal's obligation to accord him procedural fairness required the Tribunal member to ask the applicant to provide corroborating evidence and/or to warn him of any scepticism she might be feeling in relation to his oral evidence concerning his brother's disappearance. 11 I do not think the obligation of procedural fairness goes that far. In an endeavour to assist applicants, and to assist themselves in coming to the preferable decision, Tribunal members often indicate matters about which they would welcome additional evidence. However, although this is good practice, in my opinion, members have no legal obligation to take that course. If the law were to make that practice obligatory, difficulties would often arise. A previously unsceptical Tribunal member may become sceptical, or downright disbelieving, during the course of later consideration of the applicant's evidence. If the member was under the obligation suggested by the applicant, in such a case there would need to be another hearing. No doubt for this reason, the rule is that it is for the applicant to present to the Tribunal all the evidence that he or she thinks to be supportive of his or her case. It is no part of the Tribunal's function to formulate the applicant's case. (ii) Country information 12 The second complaint of the applicant concerns the Tribunal's use of "country" information. In para 17 of his affidavit of 6 December 2002, the applicant stated that, at no time from the date when he lodged his application for review until the date he received notification of the Tribunal's decision, did he receive a copy of, or was shown, "the following documents or materials referred to in the Tribunal's reasons for decision". He then listed 17 items, three items being previous Tribunal decisions and the remainder being "country" material. 13 The material before the Court includes an exchange of correspondence between Mr D McDonell and the Tribunal shortly after the oral hearing. The oral hearing took place on 31 January 2000. On the following day, Mr McDonell faxed a memo to the Deputy Registrar of the Tribunal saying: "We feel it necessary to address more formally the information put by the Tribunal to Mr Visvalingam at the hearing of 31 January 2000, regarding current conditions in Sri Lanka. In order to do this, we request that the Tribunal cite the sources of the country information referred to in that hearing, specifically: the scaling down of checkpoints; the effectiveness of the Human Rights Commission and Anti-Harrassment [sic] Committee; the effectiveness of Supreme Court prosecutions of abusive police and military personnel; the effectiveness of 'avenues of redress' in general; the distinction by the authorities between Tamil ethnicity and LTTE support." 14 An officer of the Tribunal replied on the following day enclosing "a summary of the material referred to during the hearing on 31 January 2000". The reply confirmed that any additional submissions or materials should reach the Tribunal not later than the following Monday, 7 February 2000. 15 On 7 February 2000 Mr McDonell submitted to the Tribunal a four page submission in which he referred to the country information mentioned at the hearing and quoted a 1999 report by Amnesty International. 16 I have perused a document that purports to be a transcript of the tapes of the oral hearing before the Tribunal. It contains no reference to any of the documents identified by the Tribunal officer on 2 February 2000. Perhaps they were mentioned in discussion that was not taped. Whatever the position, the reasons for decision of the Tribunal contained no reference to any of the material identified in the summary sent to Mr McDonell on 2 February 2000. Accordingly, it is impossible to know whether any of these documents played any part in formation of the Tribunal's ultimate decision. 17 Mr Patel submitted that the Tribunal member must have taken the material into account. He said that, in order to determine the issues of credibility that confronted the Tribunal member, it was necessary for her to have an understanding of the situation in Sri Lanka at relevant times; this information could only be obtained from country information. 18 It may be assumed that all members of the Tribunal have general knowledge, at least, about recent events in Sri Lanka. However, Mr Patel may be correct in suggesting that the member who heard this case resorted to some or all of the documents identified by the Tribunal officer. Even so, there was no lack of procedural fairness. The documents were identified to Mr McDonell at a time when he had the opportunity of making submissions about them. If he had wished, he could have disputed their accuracy or relevance. Disposition 19 The application should be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.