SZABS v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2003-08-15|Before: Branson J

INTRODUCTION 1 This is an appeal from a judgment of Federal Magistrate Driver whereby his Honour dismissed an application for review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal had by its decision affirmed a decision of a delegate of the respondent not to grant the appellants protection visas. The appellants had the benefit of being represented by counsel both before the learned magistrate and on the hearing of this appeal. 2 The first appellant is a Sri Lankan national of Tamil ethnicity. The second appellant is the mother of the first appellant. Her claim to be entitled to a protection visa is entirely dependent on the claim of her son. References hereafter to 'the appellant' are references to the first appellant.

NOTICE OF APPEAL 3 The amended notice of appeal, which was filed pursuant to leave on 17 July 2003, lists ten grounds of appeal. Some of the listed grounds of appeal repeat the grounds of review contained in the application for review of the decision of the Tribunal. Those grounds do not constitute grounds of appeal against the decision of Driver FM. The remaining grounds of appeal allege, in effect, that Driver FM erred in rejecting the grounds of review that were relied upon before him. 4 The grounds of appeal in this second category read as follows: '5. His Honour erred at [16] in finding "that the claims made by the applicant of actual and imputed bias, as well as the claims of a breach of procedural fairness and a failure to take relevant considerations into [scil. account or any other error of law] based on this particular, fails". Particulars - Grounds 1, 2, 3, 4 & 5 above i) The "particular" referred to (by his Honour) in Ground 5 above is that the Tribunal prejudged the issues and made adverse credibility findings on an unwarranted assumption that Tamil men with wives and young children who lived in Colombo would not have assisted and supported the LTTE. ii) The Tribunal's view of the applicants was clearly coloured by its view (which itself was not challenged) that the LTTE were a terrorist organisation and the Tribunal prejudged the issues adversely against the applicants notwithstanding that any support or assistance offered by the applicants to the LTTE did not extend to support or assistance for terrorist activities. iii) The Tribunal prejudged the issues and made adverse credibility findings based on the Tribunal's misreading of relevant cables from DFAT and on the Tribunal's mistaken pre-judgment that there was evidence before the Tribunal that "Tamils like the Applicant whose National Identity Cards show Colombo as their place of birth and residence have few problems …" 6. The Tribunal made a jurisdictional error in that it did not consider a relevant matter and relevant material. Particulars: i) The Tribunal failed to take into account the applicants' relationship to their young female relative who was released from prison in 2002 and the role of this relationship in the applicants having a well‑founded fear of persecution. 7. The Tribunal made a jurisdictional error in that it did not make a finding of fact on a relevant issue. Particulars: i) The Tribunal did not make a finding of fact on the claim by the applicants that they had a young female relative who was a LTTE supporter and who was released from prison in 2002. The Tribunal did not make findings on the role of this relationship played in the applicants' well‑founded fear of persecution. 8. The Tribunal made a jurisdictional error in that it misunderstood and misapplied the relevant law: Particulars: i) The Tribunal misunderstood and misapplied the law in regard to what is persecution. ii) The Tribunal misunderstood and misapplied the law in regard to persecution for one or more Convention reasons. iii) The Tribunal misunderstood and misapplied the law in regard to well‑founded fear of persecution because of membership of a particular social group, the applicants claiming persecution because of being LTTE supporters and because of their family relationship with an LTTE supporter who was recently released from prison. iv) The Tribunal misunderstood and misapplied the law in regard to well‑founded fear of persecution for reason of imputed political opinion. 9. The Tribunal failed to exercise its jurisdiction. Particulars i) The Tribunal did not apply the proper legal test, the "real chance" test, when determining whether the applicants had a "well‑founded" fear of persecution. 10. The Tribunal exceeded its jurisdiction. Particulars: i) The Tribunal's findings were, in all the circumstances, so unreasonable that the Tribunal exceeded its power.'

Application for Leave to Rely on Additional Matters 5 At the hearing of the appeal, counsel for the appellant sought to rely on two additional matters not argued before Driver FM and not referred to in the amended notice of appeal. No evidence was placed before the Court to explain the failure to rely on these matters at first instance. Each of the two matters involves a complaint concerning an alleged failure to accord the appellant procedural fairness. The basis for the first complaint arises from the following passage in the reasons for decision of the Tribunal: 'As referred to above, under cover of his submission received by the Tribunal on 2 October 2002 the Applicant's representative produced copies of three documents in purported corroboration of the Applicant's evidence regarding Mr Kulendran. One of these is a residential registration form purportedly signed by the Applicant on 1 June 1999, indicating that he was providing accommodation to one Shanmugalingam Kulendran. … The other two documents are a copy of what purports to be a letter signed by a doctor at a private hospital in Colombo, dated 4 August 1999, and a letter from a lawyer in Colombo, dated 5 August 1999. As noted above, these documents appear to have been typed on the same typewriter. Since the originals have not been made available it has not been possible to submit them for examination by an expert document examiner. The Applicant's representative did not offer any explanation for the Applicant's failure to produce these documents earlier although all these documents predate the Applicant's departure from Sri Lanka in September 1999.' 6 The appellant wishes to contend that he was denied procedural fairness by the Tribunal because he was not given an opportunity to address the Tribunal on the issue of the authenticity of the purported letters from a doctor at a private hospital in Colombo and a lawyer in Colombo respectively. 7 The basis for the second complaint arises from the following passage from the reasons for decision of the Tribunal: 'I note that the certificate from the ICRC [International Committee of the Red Cross] indicates that the Applicant's wife was resident at their home in Colombo on 28 September 2002 whereas the Applicant gave evidence at the hearing before me on 10 September 2002 that his wife and children were living with an aunt in Trincomalee and that their home in Colombo had been rented out. Having regard to my rejection above of the Applicant's evidence regarding his arrest and detention in July and August 1999, I do not accept that the authorities came in search of him after he left Sri Lanka. I do not accept, therefore, that the Applicant's wife and children had to leave Colombo and went to live with an aunt in Trincomalee.' 8 The applicant wishes to contend that he was denied procedural fairness by the Tribunal because he was not given an opportunity to explain to the Tribunal the apparent discrepancy between the certificate from the ICRC and his oral evidence concerning the place of residence of his wife and children. 9 No evidence was placed before the Court as to what, if anything, the appellant would have said to the Tribunal had he been afforded an opportunity to address the Tribunal on the two issues identified above. That is, there has been no attempt to establish that the alleged failures to afford the appellant procedural fairness had any practical consequences (see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 195 ALR 502 per Gleeson CJ at [37]-[38]). The failure of the appellant to raise these issues before Driver FM, or indeed to identify them until after the filing and serving of his written submissions on this appeal, tends to support the inference that he did not in fact suffer any practical injustice by reason of the suggested denials of procedural fairness. 10 An appeal to this Court from a decision of a federal magistrate, like an appeal to the Court from a decision of a single judge, is an appeal by way of rehearing. Nonetheless the task of the Court on an appeal is the correction of error (Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 per Allsop J, with whom Drummond and Mansfield JJ agreed, at [20]-[24]). Although this Court sitting in its appellate jurisdiction may consider an issue raised for the first time, it will only do so where it is expedient in the interests of justice that the issued should be argued and decided (H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348; 63 ALD 43 per Branson and Katz JJ at [6]). 11 In considering whether it is expedient in the interests of justice to allow an issue to be raised for the first time on the hearing of an appeal it is necessary for the Court to bear in mind the following observation of Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton v Holcombe (1986) 162 CLR 1 at 7: 'It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.' 12 In this case the circumstances that: (a) the appellant had the benefit of being represented by counsel at first instance (indeed the same counsel as appeared for him on this appeal); (b) no evidence has been placed before the Court touching on why the issues in question were not argued before Driver FM; and (c) no evidence has been placed before the Court which suggests the likelihood of practical injustice;

lead to the conclusion that it is not expedient in the interests of justice to allow the appellant to raise issues on this appeal which were not argued before Driver FM. Leave to further amend the amended notice of appeal is refused.

consideration 13 The submissions actually advanced by the appellant on this appeal did not seek to support all aspects of the grounds of appeal set out above. The principal complaint made by the appellant concerning the decision of Driver FM was his Honour's failure to accept that the reasons for decision of the Tribunal demonstrated actual bias or, alternatively, gave rise to a reasonable apprehension of bias. 14 There was no dispute between the parties as to the applicable tests for actual and apprehended bias. In respect of actual bias the appellant relied on the authorities referred to by the Full Court (Ryan, North and Weinberg JJ) in White v Minister for Immigration and Multicultural Affairs [2000] FCA 232 at [47]-[53]. It is sufficient for present purposes to observe that the test to be derived from those authorities is that of whether the decision maker brought a 'closed mind' to the inquiry so as to be unable to reach a decision impartially. 15 In respect of apprehended bias reliance was placed on the following passage for the judgment of Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 179 ALR 425 at [27]-[28]: 'The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the tribunal, proceedings are held in private. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.' 16 The appellant by his written submissions argued: '6. The Tribunal's Reasons for Decision show quite clearly that the Tribunal prejudged the issue of whether the applicant was a refugee and prejudged the appellant's credibility. The Tribunal prejudgment was on the basis of two pre-conceptions which themselves are inconsistent. 7. Firstly, the Tribunal believed that Tamil men with wives and young children who lived in Colombo would not have assisted and supported the LTTE. There is no evidence for this belief. The Tribunal disbelieved the appellant because he is a Tamil man with a wife and two children who has lived most of his life in Colombo and he claimed to have assisted and supported the LTTE. 8. Secondly, the Tribunal took the view that any support or assistance to the LTTE meant that the appellant lost the protection of the Refugee Convention. (AB 194), because the Tribunal said that the LTTE was a terrorist organisation. (AB 202, 203) and notwithstanding that the appellant said that any support or assistance offered by him to the LTTE did not extend to support or assistance for terrorist activities. (AB 191; 192; AB 44-45). The Tribunal said (AB 204): "Even if I were to accept the Applicant's evidence with regard to his arrest and torture by reason of his having provided accommodation for Kulendran, therefore, I would not accept that this amount [sic] to persecution for the [scil. purposes of the] Convention by reason of his race or political opinion (real or imputed) or any other Convention reason (emphasis added)." 9. In addition, the Tribunal misread DFAT cables to form a belief that "Tamils like the Applicant whose National Identity Cards show Colombo as their place of birth and residence have few problems …" (AB 192). What the cables actually said was that when compared to Tamils from outside Colombo, Tamils whose National Identity Cards show Colombo as their place of birth and residence have few problems. (AB 217, 218, AB 221 - 226).' 17 In the performance of the crucial task of assessing the credibility of claims advanced by an applicant for a protection visa, the Tribunal may take into account many factors. It is not possible to make an exhaustive list of factors which it is appropriate for the Tribunal to take into account. They will include the extent to which the claims made are consistent with matters of public record and relevant contemporaneous documents of established authenticity. They will also include, except where an acceptable explanation for inconsistency is put forward, the consistency of the claims made by the applicant at various times and the internal consistency of those claims. Additionally the Tribunal is entitled to consider whether or not the story told by the applicant is one which the Tribunal finds believable or rather one which it finds improbable or even fantastic. Of course, in making a judgment of this latter kind, it is appropriate for the Tribunal to bear in mind that what is improbable in one place or cultural setting might be unremarkable in another place or in a different cultural setting. Further the standard of conduct that it is reasonable to expect from individuals who fear severe persecution should their story not be believed is not the same standard of conduct that it is reasonable to expect from individuals who entertain no comparable fear. The Tribunal is under a duty to do all that it can to ensure that its decisions are not affected, whether consciously or unconsciously, by difficulties that it might experience in empathising with the life experience of the applicants that come before it. Nonetheless, assessment of credibility is, as McHugh J pointed out in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 at [67], 'the function of the primary decision maker par excellence' (emphasis in original). 18 The Tribunal in its reasons for decision stated: 'As I indicated to the Applicant in the course of the hearing before me, I do not consider it credible that he would have provided the LTTE with assistance in the form of the provision of transport, medicines, food and accommodation in Colombo. The Applicant was born in Colombo and has lived all his life in Colombo apart from a brief period of two months when he and his family were displaced to Jaffna in 1983. He worked in Colombo in clerical and executive capacities from 1982 until his arrival in Australia in 1999. Despite the Applicant's claim that the LTTE was seeking a peaceful solution for the Tamil people, what distinguishes the LTTE from other Tamil parties seeking self-determination is that the LTTE has pursued this aim with violence, specifically by exploding bombs in the crowded urban centres in the South of Sri Lanka, in particular in Colombo. Given that the Applicant himself lived in Colombo and that he has a wife and young children who would also have been endangered by the LTTE's suicide bomb attacks, I do not accept that it is credible that he would have aided and abetted the LTTE in its activities as he claims.' 19 It was not necessary for the Tribunal to support by reference to evidence its belief that it was not credible that the appellant, while living in Colombo with his wife and children, would have assisted the LTTE as he claimed. As is mentioned above, it was appropriate for the Tribunal to make an assessment of the inherent probability of the appellant's claims. A finding that a particular claim is inherently improbable does not without more demonstrate actual bias in the Tribunal. Nor does it without more give rise to a reasonable apprehension that the Tribunal might be biased. 20 The appellant contends that in his case there was more. He relied particularly on the statement in the Tribunal's reasons for decision that: 'Even if I were to accept the Applicant's evidence with regard to his arrest and torture by reason of his having provided accommodation for Kulendran, therefore [sic], I would not accept that this amounted to persecution for the purposes of the Convention by reason of his race or political opinion (real or imputed) or any other Convention reason.' 21 The appellant argued that the above statement is to be understood as a finding that, because the appellant assisted a terrorist organisation, he lost the protection of the Convention relating to the Status of Refugees ('the Convention'). I do not understand the above passage in that way. It seems to me that the Tribunal meant by the above passage to convey no more than that any persecution suffered by the appellant by reasons of his having provided accommodation to Mr Kulendran was not persecution 'for reasons of race, religion, nationality, membership of a particular social group or political opinion' within the meaning of the Convention. This understanding of the passage finds support in an earlier passage in the Tribunal's reasons for decision where the Tribunal said: 'Furthermore, even if I were to accept that the Applicant had provided assistance to the LTTE in Colombo as he claims, I would not accept that his claimed arrest and questioning following the arrest of Kulendran bore the requisite connection with one of the five Convention reasons.' 22 Nor do I understand the Tribunal to have proceeded on the basis that because the appellant had assisted a terrorist organisation his claim for a protection visa could not possibly succeed. Indeed, the Tribunal expressly found that the appellant had 'fabricated his claims that he was a supporter of the LTTE and that he provided the LTTE with assistance in Colombo'. That is, the Tribunal proceeded on the basis that the applicant had not assisted a terrorist organisation. The appellant's claim that the Tribunal was biased against him, or at least proceeded in a way which gave rise to a reasonable apprehension of bias, is not assisted by the statement set out in [20] above. 23 The appellant also placed reliance on the following passage from the Tribunal's reasons for decision: 'I put to the Applicant that the Australian Department of Foreign Affairs and Trade (DFAT) said that Tamils whose National Identity Cards showed Colombo as their place of birth and residence had few problems in the context of the security measures put in place in Colombo (see DFAT cable CL463, dated 24 January 1997, CX21595). The Applicant said that, because the Tigers had infiltrated Colombo, the authorities suspected people in Colombo of giving support to them. I put to the Applicant that the information available to me suggested that the security forces could distinguish between people like him, who had been born and had lived all their lives in Colombo, and people who had recently arrived from the North or the East of the country (DFAT cables CL38234, dated 15 December 1995, CX12970, and CL463, dated 24 January 1997, CX21595; DFAT Country Information Report No. 67/99, dated 5 March 1999, CX35499, A2). The Applicant said that they treated all Tamils alike.' 24 The first thing to be said about the above passage is that it records an exchange between the appellant and the Tribunal; it does not record a finding made by the Tribunal. However, in a later passage in its reasons for decision the Tribunal stated: 'The Applicant also claims that he was arrested in 1993 after a bomb blast at the Taj Samudra Hotel. He says that he was arrested along with many other Tamils and detained overnight. Although the Applicant said in the statutory declaration accompanying his original application that he was not tortured on this occasion he said at the hearing that he had been tortured. As I put to the Applicant in the course of the hearing before me, I do not consider his claim to have been arrested on this occasion to be credible. The Applicant claimed that the authorities treated all Tamils alike but, as I put to him, the information available to me suggests that the security forces can distinguish between people like the Applicant, who was born and has lived all his life in Colombo, and people who have recently arrived from the North or the East of the country. Tamils like the Applicant whose National Identity Cards show Colombo as their place of birth and resident have few problems in the context of the security measures put in place in Colombo (DFAT cables CL38234, dated 15 December 1995, CX12970, and CL463, dated 24 January 1997, CX21595; DFAT Country Information Report No. 67/99, dated 5 March 1999, CX35499, A2). I do not accept that the Applicant was arrested in 1993 as he claims.' 25 The cable dated 24 January 1997 to which the Tribunal referred includes the following passage: 'The typical profile of persons who would fall under scrutiny by the security forces continues to be young Tamils from the north or east, but particularly those from the Jaffna Peninsula or LTTE‑controlled mainland area known as the Vanii region. … By contrast, Tamils with identity cards showing Colombo as their place of birth and residence have few problems.' 26 The conclusion of the Tribunal that the security forces can distinguish between Tamils recently arrived in Colombo from the north or east of the country and Tamils whose identity card shows Colombo as their place of birth and residence was plainly supported by the cable dated 24 January 1997. I do not understand the Tribunal to have proceeded on the basis that, as a Tamil with an identity card which showed Colombo as his place of birth and residence, the applicant's claim to have been arrested in 1993 was implausible. Rather I understand that it was the appellant's claim to have been tortured following this alleged arrest, which claim was advanced for the first time at the hearing before the Tribunal, that caused the Tribunal to conclude that the claim that he was arrested in 1993 lacked credibility. Having regard to the appellant's earlier assertion that he was not tortured on the occasion of his arrest in 1993 and the fact that he had an identity card which showed his place of birth and residence as Colombo, the Tribunal's rejection of the claims of arrest and torture in 1993 is not indicative of bias in the Tribunal. 27 No error has been demonstrated in the rejection by Driver FM of the claims made by the appellant that the Tribunal had displayed actual or apprehended bias. 28 The appellant also complained of the finding of Driver FM that he had not been denied natural justice or procedural fairness by the Tribunal. He contended first that the Tribunal had not based its decision on evidence and secondly that the Tribunal relied on erroneous findings. He accepted that these complaints were relevant on this appeal only if they supported a conclusion that the Tribunal's decision was affected by jurisdictional error or if they advanced his claim that the Tribunal displayed actual or apprehended bias. 29 The appellant's contention that he had been denied natural justice by the Tribunal was sought to be supported by reference to the same aspects of the Tribunal's reasons for decision as founded the appellant's complaint that the Tribunal was biased against him. In reality this contention amounted to a complaint about the process of reasoning which led the Tribunal to find his claims of having assisted the LTTE, of having been arrested in 1993 and 1999, and of having been the subject of a search by the Sri Lankan authorities after his departure from Australia, incredible. As is demonstrated above, the Tribunal's findings concerning the appellant's credibility were findings that it was reasonably open to the Tribunal to make on the evidence and other material before it. The matters upon which the appellant placed reliance do not demonstrate that the Tribunal went about its decision-making task arbitrarily, irrationally or unreasonably so as constitute jurisdictional error. The contention was rightly rejected by Driver FM. 30 The appellant further contended that the Tribunal has misunderstood and misapplied the relevant law. He argued that: 'The Tribunal proceeded on the basis that the Refugee Convention did not apply to the applicant if the torture the appellant claimed was for "a legitimate object". In so doing, the Tribunal misunderstood and misapplied the law in regard to well‑founded fear of persecution for a Convention reason.'

This contention was based on the misunderstanding of the Tribunal's reasons for decision that is referred to in [20] above. The Tribunal did not conclude that torture for 'a legitimate object' was not 'persecution' within the meaning of the Convention. Rather, the Tribunal concluded that torture which was not inflicted for one or more of the reasons to which Article 1A of the Convention refers does not of itself demonstrate a likelihood of future persecution for one or more of those reasons. More significantly for present purposes, the contention overlooks that the Tribunal found as a fact that the appellant had not been tortured as he claimed. The Federal Magistrate rightly rejected this contention.

31 Finally, the appellant contended that Driver FM erred in rejecting his complaint that the Tribunal had made a jurisdictional error in not applying the 'real chance' test and in reaching a patently unreasonable decision. These complaints are without foundation. It was open to the Tribunal to conclude, as it did, that the appellant has never been of interest to the Sri Lankan authorities. It was also open to the Tribunal to find, as it did, that the appellant, as a Tamil who holds an identity card which shows his place of birth and residence in Colombo, would have few problems in the foreseeable future in the context of security measures in Colombo. It is clear that the Tribunal was not satisfied that the appellant faced a real chance of being persecuted should he return to Sri Lanka. 32 In respect of the appellant's claimed association with his cousin, whom he characterised as a LTTE cadre, it is clear from its reasons for decision that the Tribunal doubted the veracity of this claim. In addition the Tribunal noted that the appellant did not claim to fear persecution by reason of his association with his cousin who had been released by the Sri Lankan authorities as part of the peace process. There is no reason to conclude that the Tribunal failed to apply the 'real chance' test or reached a patently unreasonable decision when it concluded that it 'would not in any event consider it credible for the Applicant to claim that he feared being persecuted by reason of his association with [his cousin]'. 33 The Federal Magistrate has not been shown to have erred in rejecting the appellant's complaint that the Tribunal had failed to apply the 'real chance' test and had reached a patently unreasonable decision. 34 The appeal will be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate: Dated: 15 August 2003 Counsel for the Applicant: Mr R Nair

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (7)

Cited By (2)