WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2005-05-13|Before: French J, Siopis JJ

THE COURT 1 This is an appeal from a judgment of a judge of the Court, French J, dismissing an application by the appellant for judicial review of a decision of the Refugee Review Tribunal ("the RRT"). On 26 February 2004 the RRT affirmed a decision of a delegate of the respondent not to grant a protection visa to the appellant.

Background 2 The appellant is a citizen of Sri Lanka. He entered Australia in September 2001. On 20 September 2002 he lodged an application for a protection visa. That application was refused by a delegate of the respondent on 13 November 2002. 3 The RRT affirmed the delegate's decision on 28 January 2003 but on 1 December 2003, the Federal Magistrates Court (by consent) issued a writ of certiorari, quashing the RRT decision of 28 January 2003. A differently constituted RRT then heard the application for review of the delegate's decision and decided it adversely to the appellant. The application for judicial review of the later RRT decision came before French J on 19 November 2004. His Honour dismissed that application. 4 In the RRT hearing which led to the proceeding below, the appellant claimed that he feared persecution upon return to Sri Lanka on account of his political opinion. The essence of the appellant's claims was that for many years he had actively supported and worked for the United National Party ("the UNP") and had attracted adverse attention from thugs associated with the People's Alliance ("the PA"), who threatened him, even after he departed Sri Lanka for Australia and notwithstanding that the UNP came to power to 2002. 5 The appellant relied on certain documents in support of his claim for a protection visa. The documents comprised letters from members of the appellant's family and from his political associates in Sri Lanka.

The RRT decision 6 The RRT considered that the appellant had overstated his involvement in Sri Lankan politics. It said that the appellant was confused about the political system in Sri Lanka, being unaware that the country did not have single member electorates. The RRT found that the appellant was not heavily involved in elections in 1994, 1997 and 1999, as he had claimed. It also did not accept that the appellant had to go into hiding for three months after the November 1994 presidential election or that he was detained in police custody for a day during the December 1999 presidential election campaign. The RRT additionally found that the appellant was not involved in provincial general elections in December 2000, as no such elections occurred. The RRT further disbelieved a range of other allegations made by the appellant including that he was chasedaway from polling booths by armed thugs from the PA on an election day or that he complained to the police, who failed to take action. 7 The RRT rejected the appellant's claim that he was a major organiser with the UNP who was regarded by the PA as a "big threat". The RRT accepted that the appellant had joined the UNP and, if returned to Sri Lanka and resumed his political involvement at a low level, he would not attract adverse treatment from PA supporters on account of his political opinion.

The reasoning of the primary judge 8 French J dealt with the two grounds of review raised before him. The first concerned the manner in which the RRT had dealt with the letters relied upon by the appellant. The primary judge observed at [22] that: "… the Tribunal has proceeded upon the basis, even assuming the letters to be genuine in terms of their authorship, that the statements which it rejected were rejected on the basis of its assessment of the applicant's activities by reference to the other evidence which it had heard."

9 His Honour held that no jurisdictional error had been disclosed by the RRT's approach to the letters. His Honour rejected the contention that the RRT erred by forming its views about whether the appellant was deeply involved in regional politics in Sri Lanka on behalf of the UNP before addressing in detail the contents of the letters. He also rejected an alliedsubmission that the RRT had failed to have regard to one letter because it was merely mentioned in passing in the RRT's reasons. French J stated at [24]: "It is not essential that the Tribunal refer to every item of evidence before it, in particular where its findings involve, as in this case, a rejection of the level of involvement claimed by the applicant in relation to the UNP. I do not consider that there was, in relation to the absence of any detailed consideration of that letter, a failure to take into account a relevant consideration."

10 The second ground of review raised before French J attacked the RRT's findings that the appellant was not deeply involved in Sri Lankan politics. His Honour said that that issue concerned a question of fact, which was open to the RRT to decide in the way it did.

The appellant's submissions on appeal and our conclusion 11 In his substituted grounds of appeal the appellant raised three grounds. The first alleged that the primary judge erred by not finding that the RRT had failed to accord the appellant procedural fairness. That failure was said to arise from the RRT not properly informing the appellant of concerns it had with the authenticity of letters and other documents provided to the RRT by the appellant which concerned his political activities in Sri Lanka. 12 Counsel for the appellant submitted that the RRT was required to put to the appellant any concerns it had about forged documents. Counsel referred to the judgment of the Full Court in WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87. In WAHP, Lee J at [36], in dissent said that: "…it was obvious in the circumstances that the Tribunal should have given [the] appellant [an] opportunity [to] comment upon, and deal with, the Tribunal's assertion that the letter had been 'fabricated'."

13 The majority, Carr and Tamberlin JJ, held at [56] that the "critical issues" contained in the letter had been put to the appellant and he had been given an opportunity to respond. 14 In our view the appellant's submissions misconceive the approach of the RRT. The RRT's view of the lack of significance of the contents of the letters was affected by its considered finding that the appellant had overstated his involvement in Sri Lankan politics. It did not find the letters to be forgeries but failed to accept various claims made in them. For example, the RRT did not accept: · the claim that the appellant was an energetic, brilliant organiser for the UNP; · the claim that the appellant had to flee Sri Lanka to save his life; · the claim that armed thugs came to his home seeking political revenge and took his family's "ballot papers or electoral voting cards"; · the claim that "unknown people" had come to his sister's house; · the claim that police surrounded his sister's house for two days, refused to accept that the appellant was not home and asked her to report to the police station on a daily basis; or · the claim that the appellant received death threats whilst staying with his sister or that gangs of villains came to her house asking for him.

15 There was no suggestion before the RRT that the letters were forged. Rather, the RRT did not accept many of the claims made in the letters as they conflicted with evidence from the appellant and the RRT's assessment of the appellant's claim to be prominent in Sri Lankan politics. Consequently the issue raised in WAHP at [36] (per Lee J) and at [56] (per Carr and Tamberlin JJ) is not relevant in the present circumstances. Further, it was not put to French J, at first instance, in the current matter that the documents were considered by the RRT to be "fabricated", but rather that some claims made in the documents were not taken into account by the RRT. The revised argument, in any event, has no merit. 16 All the RRT did was to reject several claims made in the letters relied upon by the appellant because those claims did not sit comfortably with other evidence before the RRT from the appellant himself. The RRT did refer to two of the letters as being purportedly from their authors, but that, in no way, indicated the RRT considered the contents of those letters to be fabricated or that the documents themselves were forgeries. The RRT was entitled to approach the matter in the way it did, having regard to its firm view, formed in light of the appellant's evidence and information available to it, that the appellant had not been deeply involved in politics in his region in Sri Lanka on behalf of the UNP. In our view, as French J concluded at first instance, in those circumstances the RRT's approach accorded with that discussed by the High Court in Re: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] and [49]. 17 The second ground of appeal alleged that the RRT could have made some inquiries to verify the documents or at least that which was apparently from a member of the Sri Lankan parliament. However, this submission (which again was not put to French J) proceeds on the assumption that the RRT required the letters to be verified. There was no issue about the letters being "real". The crucial question was whether aspects of their contents should be accepted. That was a question of fact for the RRT to determine. The particular document relied on by counsel for the appellant to support this ground (being a letter from a Sri Lankan politician) did not provide any particularly startling information about the appellant which would make it useful for it to obtain further information about the issues raised in the document. 18 It was also up to the RRT as to whether it made further inquiries of that member of Parliament as to the accuracy of the contents of his letter. The letter did not give any clearly first hand and specific evidence of any particular experiences of the appellant which might have prompted some further inquiry as to their accuracy. After describing the 1990s as a 'hard era' for all UNP parity members, it broadly asserted: "It is an inescapable incident he had to face at last, so he had to flee to save his life." If that member of Parliament had more precise information to give, the RRT might have expected that material to be more clearly set out. In the circumstances of this matter, the RRT's decision not to pursue further inquiries of that person did not involve jurisdictional error on its part. Indeed, it is quite understandable that it did not do so; see generally the observations of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. 19 Counsel conceded that the second ground could not succeed if the Court did not accept the first ground of appeal. In any event, the Full Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 made it clear that there is no duty on the RRT to make inquiries, the failure of which to carry out, will give rise to judicial review. 20 The final ground of appeal focussed on the RRT's finding that the appellant did not have a good understanding of the Sri Lankan electoral system or one consistent with his claimed political profile. That finding, in part, arose from the appellant's evidence that politicians would seek to maximise votes in their electorates when he had earlier accepted that they represented districts, not electorates. Counsel for the appellant referred to material available on the internet which analysed each Sri Lankan district by electorate. He submitted that the RRT's finding that the appellant did not have a good understanding of the Sri Lankan electoral system was based on "a critical finding of credit on inconsistencies…not open on the evidence…or…at least highly questionable." This was said to be a jurisdictional error because the RRT took into account irrelevant considerations and failed to take into account relevant considerations in coming to its decision. 21 The extent of the appellant's political profile in Sri Lanka was a question of fact for the RRT to determine. No jurisdictional error is made out even if it can be shown that the RRT's fact finding was questionable. The relevance or otherwise to that issue of the process by which politicians are elected in Sri Lanka was a matter for the RRT to determine and does not support any proper ground of judicial review. 22 The primary judge considered that the RRT's assessment of the appellant's knowledge of the Sri Lankan political system, and hence the extent of his profile in Sri Lankan politics, was an opinion which was open to it, notwithstanding that there could be debate about whether it was logically justified. We agree, with respect, with that analysis. It is by no means clear that the RRT's assessment was illogical. Much depends on what one considers to be the correct meaning of the word "electorate" and whether the district was the "electorate" as distinct from the electorates being sub-districts within the district. In any event, illogicality has not been established by the authorities as a proper ground upon which to grant judicial review of a decision of the RRT; see NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [22] to [30].

Conclusion 23 In our view the appeal should be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Mansfield and Siopis.

Counsel for the Appellant: Mr P Condliffe (pro bono)

Solicitor for the Respondent: Australian Government Solicitor

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Cases Cited (5)