NBBZ v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2004-11-24|Before: Emmett J, North JJ

INTRODUCTION 1 This appeal calls for consideration of the process of reasoning followed by the Refugee Review Tribunal ('the Tribunal') in affirming a decision that the appellant not be granted a protection visa. The appellant has contended that, having regard to the process of reasoning followed by the Tribunal, the Tribunal failed to take into account a relevant matter and failed to comply with s 424A of the Migration Act 1958 (Cth) ('the Act'). 2 On 30 June 2004 a judge of the Court (Emmett J) dismissed an application for judicial review of a decision of the Tribunal made on 9 January 2004. By its decision the Tribunal had affirmed a decision of a delegate of the first respondent not to grant the appellant a protection visa. 3 The class of visa known as the protection visa is created by subs 36(1) of the Act. For present purposes the relevant criterion that the appellant was required to satisfy to be granted the visa is the criterion specified in par 36(2)(a) of the Act. That criterion requires that the visa applicant be: 'a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.'

background facts 4 On 14 October 2002 the appellant signed an application for a protection visa. In a statement attached to the application form the appellant stated that he feared returning to his country, Sri Lanka, as members of his family had been killed during the election campaign of December 2001. The statement contained an explanation of the circumstances in which his Singhalese father came to marry his Muslim mother. It also stated that his father, a Kandy businessman, had given a lot of his time to providing assistance to all elements of the Sri Lankan community and to the Muslim Congress. As a consequence his father had been threatened and had suffered discrimination and persecution, especially at election time. 5 The statement outlined increasing harassment of the appellant's family leading to a critical incident on 5 December 2001. On that day, according to the statement, six men came to the appellant's home and attacked the family; the appellant's brother was killed, his father shot in the leg and the appellant himself hit on the head with an iron bar and his collarbone broken. His father, the statement asserts, subsequently disappeared and is now dead. 6 The statement asserts that the appellant thereafter left Sri Lanka and travelled to Thailand on a false passport with the help of a smuggler. The statement contains the following account of the appellant's travel from Thailand to Australia: '31. I and four others, 3 men and one woman, left by lorry truck to Cambodia where we stopped a few times before we arrived in Phnom Penh. We then went by a boat through the Mekong and arrived in Saigon on 20 July 2002. The five of us stayed in a small room in Saigon. On 3rd of august 2002 two men left for Italy. 32. As I had no money, I had to remain with the Tamil person in Saigon. 33. One girl and one male as well as me were put on a ship that was going to Australia. The ship made about 6 stops on the journey from Saigon to Australia. Whenever it stopped I had to hide in a metal that had been used for storing oil. Otherwise I hid in the engine room with the other two people. During the trip to Australia all three of us were treated very badly. The man and the woman got off in Singapore. I continued on to Australia. 34. I arrived in Australia on 26 August 2002. It had taken about 19 days to travel to Australia and I hid in the engine for all of that time. Whenever we stopped at a port I had to hide in the barrel. One time I had to hide for two days.' 7 The first respondent's delegate found that the appellant's fear of persecution in Sri Lanka was not well‑founded as he could safely relocate to Colombo. The appellant sought review by the Tribunal of the decision of the delegate. 8 The Tribunal wrote to the appellant advising that it had considered the material before it relating to his application but was unable to make a decision in his favour on that information alone. It invited him to a hearing. A hearing was held on 19 May 2003. The transcript of the hearing on that day reveals that, when asked how he got here, the appellant answered 'on a ship'. When further questioned he gave the name of the ship as 'NYK Pride'. He said that he boarded the ship in Saigon on 8 August 2002 and left it at Botany Harbour on 26 August 2002. He said that the ship had stopped in several places and he thought that one was Malaysia and then Singapore. He said that he did not know where the shipped stopped in Malaysia because he 'was staying in the engine room'. He said that since attaining the age of eighteen years he had not previously travelled out of his country and did not have a passport of his own. He claimed to have travelled from Sri Lanka on a false passport that he, while in Bangkok, handed over to the friend who had arranged for him to leave Sri Lanka. 9 The hearing of 19 May 2003 was adjourned, as the Tribunal member indicated, to a date to be fixed in June. The Tribunal members exhorted the appellant and his adviser to identify additional evidence that confirmed the appellant's story. 10 The adjourned hearing did not in fact resume until 7 November 2003. In the meantime, on 23 October 2003 the Tribunal sought from the NYK Line details of the movements of NYK Pride in August 2002. On 29 October 2003 the NYK Line confirmed that the NYK Pride had arrived in Port Botany on 26 August 2002. However, the details provided of the ship's movements in August 2002 indicated that it had not docked in Saigon. Stops in Singapore and a Malaysian port were indicated. 11 On 7 November 2003 the Tribunal member questioned the appellant about, amongst other things, the manner of his arrival in Australia. The Tribunal member put to the appellant that it was not true that he had arrived in Australia in the way that he had earlier described. When the appellant asserted that it was true, the Tribunal member said: 'The NYK Pride wasn't in Saigon in August'. 12 The Tribunal member subsequently referred to advice from the shipping line but the communication that the Tribunal had received from the NYK Line was not shown to the appellant on that day. At the conclusion of the hearing on 7 November 2003 the Tribunal member told the appellant that he had strong reservations about, amongst other things, the appellant's evidence about his arrival on a ship as he did not believe that the journey was possible. The Tribunal member said: 'You don't have to respond now, …. You have time to think about it. You can talk to your advisors but they are the questions that you will need to address should you wish to proceed with the application.' 13 By letter dated 12 November 2003 the Tribunal wrote to the appellant in the following terms: 'You claimed to have travelled to Australia on the NYK Pride arriving in Port Botany, Sydney on 26 August 2002. You claimed to have stowed away on the NYK Pride in Saigon about nineteen days prior to 26 August 2002. The information from the NYK Line seems to contradict your claims and raises the possibility that you have misled DIMIA and RRT as to your entry into Australia. If you have misled DIMIA and RRT as to your entry into Australia, the Tribunal may have to consider why you have done so. It may be that you did not enter Australia in this way but legally on your own passport which may raise questions about what such a passport could disclose. The Tribunal has information that would, subject to any comments you make, be the reason or part of the reason, for deciding that you are not entitled to a protection visa. A copy of a fax from Garry Farnsworth of NYK Line (Australia) and attachment are enclosed. If you wish to give your comments, please send your comments by 21 November 2003.' 14 The hearing before the Tribunal resumed on 27 November 2003. On that day the appellant said that he thought that he had been moved in Singapore from one ship to another ship while hiding in a barrel. The transcript records the Tribunal member as saying: 'I've got very grave doubts that you came to Australia as you said you did. …. I think it's probable that you deliberately misled both the department and this tribunal. That in itself wouldn't be fatal to your application … I think it's important is that it seems to me that if you have deliberately misled this tribunal, it's been an attempt to deprive the department and the tribunal of the opportunity to examine your passport.' 15 At the conclusion of the hearing on 27 November 2003 the Tribunal member gave the appellant two weeks within which to make further submissions and reserved his decision. As mentioned above, on 9 January 2004 the Tribunal affirmed the decision not to grant the appellant a protection visa.

reasons for decision of the tribunal 16 The Tribunal was satisfied that the appellant:

(a) is a Sri Lankan national; (b) is Singhalese; (c) is Roman Catholic; (d) speaks, reads and writes English and Singhalese; and (e) speaks Tamil.

The reasons for decision of the Tribunal record no finding in respect of the appellant's identity (ie his name).

17 The Tribunal did not find the appellant's evidence convincing or truthful. It did not accept that his account of his journey to or arrival in Australia was true or honest. The Tribunal expressed its satisfaction that the appellant had set out to mislead the Department and the Tribunal as to the circumstances of his arrival in Australia. The reasons for decision of the Tribunal include the following paragraphs: 'I do not consider that this is a case of an applicant telling an untruth about a matter peripheral to his claim for protection. This issue relates not just to the circumstances of his arrival in Australia, but also goes to his identity, and to his movements during the time in which he claims to have been involved in incidents which led to his fleeing Sri Lanka. … I consider that it is likely that the [appellant] was seeking to avoid disclosing his passport. His passport would reveal his past movements. It has been the experience of this Tribunal that whilst uncommon, it is not unknown for applicants to claim to have arrived in Australia illegally in order to avoid disclosing a passport which, when discovered, reveals past movements inconsistent with their claims.' 18 The Tribunal gave little, if any, weight to a body of material apparently supportive of the appellant's claims because of its conclusion that the appellant had deliberately set out to mislead the Tribunal. 19 The Tribunal's reasons for decision do not refer to a letter dated 15 October 2002 that the appellant received from the Department. By that letter the Department asserted that it was unable to locate any entry record for him based on the details provided in his application for a protection visa.

reasons for judgment of the primary judge 20 It was contended before the learned primary judge that, on a fair reading of the Tribunal's reasons for decision, it approached the critical issue of the appellant's credibility on the basis that there were only two possibilities as to the appellant's entry into Australia. Those two possibilities were said to be:

(a) the appellant arrived as a stowaway, as he claimed; or (b) the appellant entered Australia legally under a passport in the name by which he is known to the Department and the Tribunal.

21 It was further contended that, on this approach, the Tribunal failed to take into account a relevant matter by failing to give consideration to the letter of 15 October 2002. The letter of 15 October 2002 tends to establish that the appellant did not enter Australia through a recognised entry point using a passport in the name by which he is known to the Department and the Tribunal. 22 The primary judge, however, identified at least two other possibilities concerning the appellant's entry into Australia, namely:

(c) the appellant entered Australia under a false passport; or (d) the appellant entered Australia under a genuine passport but has adopted a false name in his dealings with the Department and the Tribunal.

His Honour rejected a contention that the language of the Tribunal's reasons for decision demonstrate that the Tribunal did not have regard to either of the above possibilities.

23 At [50] the primary judge concluded: 'The reasoning of the Tribunal gives rise to some disquiet in so far as there is no express finding by the Tribunal that the applicant may have come to Australia on a genuine passport and adopted a false name or may have come to Australia on a false passport. However, the Tribunal did not expressly reject those possibilities. It is only if it rejected those possibilities that the documents in question would become clearly relevant to the Tribunal's assessment of the applicant's credibility. So long as those possibilities are open, the question of whether there had been no entry into Australia by a person using the applicant's name and a Sri Lankan passport is quite equivocal. I consider, on balance, that this ground is not made out.' 24 The primary judge also rejected a contention that the appellant was denied procedural fairness by the Tribunal because he was not given particulars of the log of the NYK Pride ahead of the hearing of 7 November 2003. His Honour held that the Tribunal was entitled to test an applicant's credibility by cross‑examination and was not obliged to warn of contradictory material held by it. His Honour noted that, before the Tribunal made its decision, it gave the appellant a chance to explain the material that had been obtained from the NYK Line. 25 It is unnecessary to deal here with other arguments addressed to the primary judge as they have no relevance to this appeal. 26 The primary judge dismissed the appellant's application with costs.

amended notice of appeal 27 Pursuant to leave granted during the course of argument on this appeal, the appellant has filed an amended notice of appeal. Two grounds are set out in the amended notice of appeal, namely: 'The learned trial Judge erred by failing to find that the Tribunal had not taken into account a relevant consideration, namely the fact that the Departmental records showed that no person using the Appellant's stated identity entered Australia on his own passport (the record is the letter of 15 October 2002). The learned trial Judge erred by failing to find that the Tribunal breached section 424A of the Migration Act, or alternatively, denied the Appellant procedural fairness, by not putting to the Appellant, prior to the hearing on 7 November 2003, the particulars which were provided on 12 November 2003.'

Ground 1 28 The first issue for consideration in respect of this ground of appeal is the proper construction of the reasons for decision of the Tribunal. 29 Mr Prince, pro bono counsel for the appellant, contended that, in effect, the Tribunal was not satisfied that the appellant is a person to whom Australia owes protection obligations under the Refugees Convention because it was satisfied that he was seeking to avoid disclosure of his passport. That is, because it was satisfied that he had entered Australia at a recognised point of entry on a passport in his own name being the name by which he is known by the Department and the Tribunal. 30 We do not read the reasons for decision of the Tribunal in the way contended for by the appellant. After outlining the appellant's claim to have travelled to Australia on the NYK Pride, and his response to the information that the NYK Pride had not docked at Saigon, the Tribunal recorded a finding that the appellant's evidence was not convincing or truthful. It then recorded its satisfaction that the appellant had sought to mislead the Department and the Tribunal as to the circumstances of his arrival in Australia. 31 The Tribunal noted that its satisfaction that the appellant had sought to mislead the Department and the Tribunal had relevance in relation to his identity and to his movements during the time that he claimed to have been involved in incidents that led to his fleeing Sri Lanka. It observed that the appellant had been given ample opportunity to offer a 'benign reason' for his misleading the Department and the Tribunal but had not done so. By a 'benign reason' we understand the Tribunal to mean a reason consistent with the appellant having a well‑founded fear of persecution for a Convention reason in Sri Lanka. 32 The Tribunal goes on in its reasons for decision to record that it 'consider[s] that it is likely that the [appellant] was seeking to avoid disclosing his passport'. In our view, the Tribunal is here speculating as to the likely reason for the appellant having sought, as it had already concluded that he had, to mislead the Department and the Tribunal. However, we do not understand the outcome of the Tribunal's speculation to be any part of its reasoning process. That reasoning process, as we read the Tribunal's decision, is as follows: (a) the appellant lied about how he travelled to Australia; (b) the lies were intended to mislead the Department and the Tribunal on a topic relevant to the establishment of his identity and his movements on or about December 2001 (ie the time of the incidents said by him to be critical to his decision to flee Sri Lanka); (c) it is likely that the appellant lied to avoid disclosing his passport (in whatever name it had been issued); (d) even if this was not the reason that he lied, his purpose was not benign in the sense of being consistent with his having a well‑founded fear of persecution for a Convention reason in Sri Lanka; (e) in the circumstances, his credibility was so damaged that the Tribunal could give little weight to his claim to fear persecution in Sri Lanka; (f) consequently the Tribunal was not satisfied that he has a well‑founded fear of persecution for a Convention reason in Sri Lanka. 33 The above may simply be an extended way of saying that, to adopt a phrase employed by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30, 198 ALR 59 at [49], the appellant's lies meant that 'the well ha[d] been poisoned beyond redemption' so far as the Tribunal was concerned. 34 On the construction of the reasons for decision of the Tribunal that we regard as the preferable construction, the letter of 15 October 2002 was not a relevant consideration that the Tribunal was obliged to take into account. Even if we are wrong in the view that we take of the preferable construction of the Tribunal's reasons for decision, no error has been identified, in our view, in the reasons given by Emmett J for rejecting this ground of complaint concerning the Tribunal's reasons for decision.

Ground 2 35 In our view this ground is without merit. If the contentions advanced on behalf of the appellant were accepted, it would mean that s 424A of the Act, or alternatively the Tribunal's obligation to treat applicants fairly, compels the Tribunal to depart from procedures long considered acceptable and fair in courts of law. 36 Subsection 424A(1) of the Act 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.' 37 We respectfully express our agreement with what was said in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; 113 FCR 396 by Allsop J, with whom Heerey J agreed, at [94]: 'It is necessary to say something about s 424A. First, the word "would" is used, not "could". I see no warrant to view the section as "crystallising" or "enlivening" any obligation merely because the Tribunal member in considering the matter forms the view that information could, or could possibly, be relevant to the determination of the claims. The Tribunal must give the particulars which have a certain character: particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision. It is not just a question of general adverse relevance. No time for compliance is identified. I have difficulty in seeing how there can be a failure to observe a procedure unless and until a decision is handed down without compliance with s424A. …. If the Tribunal delivers its decision without complying with the requirement of s 424A, it will have failed to observe procedures laid down for it by the Act.' 38 The obligation on the Tribunal under s 424A is to give particulars 'in the way that the Tribunal considers appropriate in the circumstances'. In this case the Tribunal complied with the obligation imposed on it by subs 424A(1) in respect of the information concerning the movements of the NYK Pride by its letter of 12 November 2003. The Tribunal held a further hearing on 27 November 2003 during which the appellant was given a full opportunity to say whatever he wished concerning that information. Subsequently he was allowed a further two weeks to make additional submissions in writing. Assuming, without deciding, that notwithstanding s 424B of the Act the Tribunal had an obligation of procedural fairness additional to the statutory obligation imposed by s 424A, that obligation was, in our view, met. In any event, even if there was a failure to comply with s 424A, this is not a case where that failure to comply resulted in any apparent prejudice to the appellant: NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102; 129 FCR 214 at [27].

conclusion 39 In our view, the appeal should be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Solicitor for the Appellant: Ebsworth & Ebsworth

Solicitor for the First Respondent: Sparke Helmore

Date of Hearing: 8 November 2004

Date of Judgment: 24 November 2004

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