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MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of the delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed.

M17 v Minister for Immigration [2003] FMCA 196 (22 May 2003)

M17 v Minister for Immigration [2003] FMCA 196 (22 May 2003)
Last Updated: 5 June 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M17 v MINISTER FOR IMMIGRATION
[2003] FMCA 196



MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of the delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed.



Migration Act 1958 (Cth)

SAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 65

Yusuf v Minister for Immigration & Multicultural Affairs (2001) 206 CLR 323

Craig v South Australia (1985) 184 CLR 163

NACV v Minister for Immigration & Multicultural Affairs [2002] FCA 411

W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361

Applicant:
M17



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ 1197 of 2002



Orders made:


22 May 2003



Delivered at:


Melbourne



Hearing Date:


22 May 2003



Judgment of:


Hartnett FM



REPRESENTATION

Counsel for the Applicants:


Mr Kissane



Solicitors for the Applicants:


Wimal & Associates



Counsel for the Respondent:


Dr O'Donoghue



Solicitors for the Respondent:


Australian Government Solicitor


ORDER

THE COURT ORDERS THAT:

(1) The application is dismissed.

(2) The applicant pay the respondent's costs pursuant to the Federal Magistrates Court Rules 2001, Part 21 Rule 21.10.

(3) It is certified that pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ 1197 of 2002

M17


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The Applicant, a citizen of Sri Lanka, arrived in Australia on 19 February 2000 as the holder of a visitor visa. On 10 March 2000, she applied for a protection (Class XA) visa. On 3 May 2000, a delegate of the Respondent refused to grant that visa (the Delegate's decision) [CB88].

2. The Applicant applied to the Refugee Review Tribunal (RRT) for review of the delegate's decision. On 16 January 2002, the Tribunal affirmed the Delegate's decision, finding that the Applicant was not a person to whom Australia has protection obligations (CB87-130).

3. On 13 March 2002, the Applicant applied to the High Court for an order nisi requiring the Respondent to show cause why writs of prohibition, certiorari, mandamus and an injunction should not be issued in respect of the decision. On 30 July 2002, Hayne J ordered that the proceeding be remitted to the Federal Court of Australia. The proceeding was then transferred from the Federal Court to this Court.

The Tribunal hearing

4. The Tribunal summarised the Applicant's claim as follows:

In her [protection visa] submission the applicant claimed that because of her friendly association with Padmi [a woman with whom she claimed she became friendly whilst sharing a train to work over many years] who revealed to the applicant that she was a LTTE spy, and who disappeared in April 1999 following which the Security Service did an investigation of her employer's business, but found nothing untoward, the applicant decided to come to Australia. After she came to Australia `someone had come to my home in Sri Lanka and enquired about me'. If she returns to Sri Lanka she will be putting herself in a life-threatening situation and will be facing grave danger.

Following the rejection of her application by the delegate, the applicant lodged 2 further submissions, some documents, and enlarged her claims. She claimed that both the security forces and the LTTE have an adverse interest in her. At the hearing she made a further claim. She claimed that she feared that if she returned to Sri Lanka, she would be killed because she had belonged to the JVP. She also claimed that the security forces had stopped and questioned her first for 15 minutes before letting her go before Padmi disappeared [CB109].

5. The Tribunal rejected the Applicant's claims essentially because it did not accept her as a truthful witness. In detailed reasons spanning 44 pages the Tribunal analysed the Applicant's claims and the many shifts in her account of the relevant events. The reasons that many of her major claims were rejected as contrived or fanciful were fully explained. [See for example: CB110 (going into hiding), 112-113 (JVP membership), 115 (Padmi), 116-117 (search for and questioning by security forces), 119 (LTTE sabotage), 122 (contrived documents), 123 (letter from security services regarding Padmi)]. Having examined and rejected many specific claims, the Tribunal stated:

For all the above reasons the Tribunal finds that the applicant has been prepared at all times to enlarge, alter or extend her claims to meet the circumstances as they arose [CB122].

6. The Tribunal concluded:

The Tribunal finds that for all the above reasons the applicant is not credible. For all the above reasons the Tribunal finds that the applicant is not a witness of truth (CB123).

The Tribunal has not accepted the claims regarding Padmi. It finds that the claims regarding Padmi are fanciful and contrived. It does not accept that a LTTE spy would break cover and reveal to any one her job. The situation in Sri Lanka between the opposing forces of the LTTE rebels and the government with the bitter fighting, retribution and sabotage by bombing is such that a LTTE spy revealing herself would face death from not only the government but also from the LTTE itself, in the latter case because her unreliability could jeopardise the LTTE network.... For all the above reasons the Tribunal does not accept that a woman named Padmi told the applicant that she was a LTTE spy.

The applicant has explained her alleged acceptance of Padmi's information and agreement to supply her with information by claiming to have favourable views because she had belonged firstly to Youth Socialist, but then to the JVP. The Tribunal had not accepted that the applicant belonged to these organisations. As the Tribunal has not accepted these claims it does not accept that even if a LTTE spy had revealed her identity that the applicant would have taken a favourable view of such activity for the reasons claimed. The Tribunal does not accept that the applicant revealed the business methods of her employer to a LTTE spy. The Tribunal has found that the applicant did not go into hiding and has found that she continued in her usual employment until she left the country. In addition, despite the applicant's claims, she remained in Sri Lanka without incident for approximately 10 months after the alleged disappearance of Padmi. The applicant left Sri Lanka legally and on her own passport, and given the checks in place for the issue of passports and given the tight exit procedures in place..., the Tribunal is satisfied that her ability to so leave indicates that she is of no interest to the government [CB124].

7. The draft Order Nisi set out two particulars of the various errors alleged. They were that the Tribunal erred because:

a) Persecution within the meaning of the definition of a refugee under the Refugees Convention, as incorporated by reference by section 36(2) of the Migration Act 1958 could occur as a result of being imputed as a political support of the LTTE because of her friendship with an LTTE operative and because of her former membership with the JVP; and

b) The applicant states she was questioned and interrogated by the security services and that the problems she will encounter should she be forced to return to Sri Lanka would constitute persecution for reason of political opinion within the meaning of the Refugees Convention.

8. These alleged errors were not further elaborated or referred to in the proceedings. There was no reference to either of them in the Contentions nor were they argued in submissions before me. The Contentions asserted that the RRT did not make a bona fide attempt to exercise its power (Contentions paragraph 5) and that the RRT committed a jurisdictional error (Contentions paragraph 13). Those errors were said to arise for two reasons:

a) the RRT took `an irrelevant factor into account, by concentrating on the applicant's membership of the JVP, and then using that omission in the original submission to substantiate its final conclusion'(Contentions paragraph 9); and

b) although the onus was upon the Applicant to provide the Tribunal with original documentation in support of her claim to refugee status, once the Tribunal wrote to the applicant in a letter dated

30 October 2001 sent pursuant to s.424A of the Act, it was incumbent upon the Tribunal to request that the applicant provide the original documents, and its failure to do so demonstrated that `the Tribunal had already made up its mind about the outcome of the applicant's case and was only following procedures to satisfy the regulations' (Contentions paragraph 10).

9. Notwithstanding the contents of paragraph 8 above, in submissions made before me Counsel for the Applicant stated the Applicant's case as being essentially a claim that the Tribunal did not afford to the Applicant a fair hearing in the manner in which it conducted its hearing. This failure it was argued gave rise to jurisdictional error of a type that resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction.

10. In support of that submission the Applicant argued:

The Tribunal would have been well aware that the JVP during its reign of terror, was aligned to a number of left wing groups and those very left wing groups were often associated by the Sri Lankan authorities as belonging to that subversive and terrorist organisation known as the JVP. However, the Tribunal then chose to spend the next three pages of its decision addressing the issue of the JVP, when fear of the JVP was never the central issue of the applicant's claims (Contention, paragraph 9) .

11. It is apparent from the above passage that the Applicant does not assert that the Tribunal focused on the JVP claim to the exclusion of other matters and thereby failed to take into account the central claim made by the Applicant. The Applicant complains that, by addressing a claim that was advanced by the Applicant, [CB99, 111] the Tribunal took into account an irrelevant consideration because that claim `was never the central issue'.

12. In order to establish that a decision-maker erred by taking account of an irrelevant consideration, it is necessary to show that the decision-maker took account of a matter that it was bound not to take into account: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, 39-40. It is impossible for the applicant to argue as she did that the Tribunal was bound not to consider a claim that was advanced by an applicant for refugee status. It is well settled law that the Tribunal is bound to consider every claim that an applicant advances (see SAAD v Minister for Immigration &Multicultural & Indigenous Affairs [2003] FCAFC 65; Yusuf v Minister for Immigration & Multicultural Affairs (2001) 206 CLR 323 at [73]).

13. A Tribunal will not make a jurisdictional error (as that phrase is understood following Craig v South Australia (1985) 184 CLR 163) unless that Tribunal makes an error of law which causes the Tribunal, inter alia, to take into account irrelevant material: Craig at 179. As McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said in Yusuf at [74]:

The grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.

The Applicant cannot establish any error of law that caused the Tribunal to focus on the Applicant's claimed fear of persecution as a result of her past association with the JVP. Her complaint is no more than a complaint about the fact-finding process. A claim of that type is not a claim of the type contemplated by the `irrelevant consideration' ground of judicial review.

14. The Applicant further submitted that once the Tribunal wrote to the Applicant pursuant to s.424A of the Act in a letter dated 30 October 2001 it was incumbent on the Tribunal to request that the Applicant provide original documents, and its failure to do so demonstrated that `the Tribunal had already made up its mind about the outcome of the applicant's case and was only following procedures to satisfy the regulations', must to my mind be rejected for the reason that it turns upon a misconstruction of s.424A of the Act.

15. In support of the submission the applicant argued as follows:

The applicant rejects the conclusion of the Tribunal that she provided the Tribunal with different versions of her association with Padmi and then made claims which had not been made prior to the hearing. The applicant acknowledges that she lodged a number of documents with the Tribunal which were translations and all but in one instance the original documents were not provided. The applicant is well aware that the onus was on her to provide the original documents. However, given the Tribunal wrote to the applicant in a letter dated 30 October 2001, pursuant to s424A, it was incumbent on the Tribunal to request that the applicant provide the original documents. However, the Tribunal chose not to follow this course of action. This in our submission shows that the Tribunal had already made up its mind about the outcome of the applicant's case and was only following procedures to satisfy the regulations (Contentions paragraph 10).

16. The opening sentence of this submission seeks to attack findings of fact. The decision to reject most of the Applicant's evidence, which was the central reason for the decision [CB124] was a decision of fact for the Tribunal alone. It cannot be reviewed in this proceeding. In NACV v Minister for Immigration and Multicultural Affairs [2002] FCA 411 (3 April 2002), [2] Conti J said:

It is readily apparent that the Applicant was unsuccessful because of the view the Tribunal took of the facts and circumstances which he had put forward, and of his credibility. So long as credibility findings are open to be found on the evidence placed before the Tribunal, there is no reviewable error committed by the Tribunal: see the Full Court decisions in Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 (O'Connor, Branson and Marshall JJ), and Case W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 (Lee, Tamberlin and R D Nicholson JJ) and in particular what was said by Tamberlin and R D Nicholson JJ at [64] to [69].

17. In the last of the cases cited in the passage just quoted, W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679, Tamberlin and RD Nicholson JJ has observed, at [64], that:

The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.

18. Section 424A of the Act had no relevant operation. That section does not apply to information `that the applicant gave for the purpose of the application' s.424A(3)(b). The copy documents provided by the Applicant were clearly documents provided by the Applicant. They therefore did not fall within the operation of s.424A.

19. In any event, s.424A provides only that the Tribunal must give to an applicant `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 to invite the applicant to comment upon such information. The Tribunal's reasons disclose that the Tribunal did not rely upon the fact that the documents provided were copies rather than originals. That fact was mentioned only as part of describing the evidence before the Tribunal. [CB100, 119] The documents were rejected as a result of their contents, not as a result of the fact that they were copy documents. [CB120-122] The absence of the originals was mentioned as an afterthought, after the documents were rejected as unreliable, with the Tribunal simply noting that there were difficulties matching the translations with the alleged originals [CB122].

20. The Applicant did not point to any reason why the asserted failure to comply with s.424A should be understood as revealing a state of mind, in the decision maker that was so prejudiced or prejudiced in any way of a conclusion already formed regardless of the evidence and submissions then made to her.

21. In SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, [43]-[48], the Full Federal Court summarised the propositions that emerge from the authorities concerning the absence of bona fides. The Court emphasised that `an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker' and that `the allegation is not to be lightly made and must be clearly alleged and proved' (at [43]). It stated that `the presence or absence of honesty will often be crucial', and that `the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme'. The Full Court observed, at [45], that:

Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism.

22. The allegation of a lack of bona fides of the decision-maker was not pressed by Counsel at the hearing before me. It is a claim, I find, that has no basis. There was no lack of procedural fairness in the Tribunal hearing as described by the applicant or at all. The Tribunal hearing was conducted in fair manner and with a considerable degree of thoughtfulness and care together with application of the law by the Tribunal member. All the matters put forward by the applicant were considered and the applicant was given opportunity to respond to various matters critical to her claim.

23. As I indicated to both Counsel at the hearing I would and have relied upon the helpful submissions of the Respondent's counsel which stated accurately the matters to be addressed in this case and the law applicable thereto. I shall dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: L.M.Dorian

Date: 22 May 2003
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