FEDERAL COURT OF AUSTRALIA

MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 applied

Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 applied

Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 approved

Minister for Immigration and Multicultural and Indigenous Affairs vYusuf (2001) 206 CLR 231 cited

Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 cited

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 184 applied

MZWBW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 1615 OF 2004

BLACK CJ, SUNDBERG and BENNETT JJ

26 MAY 2005

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BACKGROUND

1                     The appellant is a national of Sri Lanka, and a Muslim of Tamil ethnicity. He arrived in Australia in March 1997. In February 2002 he applied for a protection visa. A delegate of the respondent refused the visa, and the appellant’s application for review of that decision by the Refugee Review Tribunal was unsuccessful. An application for review of the Tribunal’s decision was dismissed by the Federal Magistrates Court. The appellant now appeals from that decision.

CLAIMS BEFORE TRIBUNAL

2                     The appellant claimed that in Sri Lanka he and some friends had been involved in forming a Guard Battalion in collaboration with the Sri Lankan army. The Guard Battalion assisted the government in fighting the Liberation Tigers of Tamil Eelam (LTTE). The appellant had ten days of training at one army camp and fifteen days on different weapons at another camp. In March or April 1991 he was ordered by an army sergeant to beat a Tamil, and when he refused was himself beaten, as was the Tamil. He then decided to leave the Guard Battalion.

3                     In October 1991 the appellant was shot in the leg by the LTTE in a battle, and was in hospital for three weeks. He managed to leave the Guard Battalion by walking out of the hospital in civilian clothes. As a result of leaving the Battalion he was regarded by the Army as a deserter. After leaving the Battalion the appellant was forced to flee, but later returned to Sri Lanka where he had to avoid the Army which accused those who had left the Battalion of stealing arms.

4                     After his return the appellant and other Sri Lankan Muslims joined a group of independents to campaign against Mrs Kumaratunga in the Presidential elections. There were other former Guard Battalion members involved. In May 1995 security officials came looking for former members who were involved in the election campaign, and specifically asked about the appellant. The appellant decided to leave Sri Lanka, which he did, after a period in hiding, in March 1997 with the help of an agent.

THE TRIBUNAL’S DECISION

5                     The Tribunal rejected the appellant’s claim that he would be regarded as a deserter for having left the Army. It found that the Guard Battalion was a voluntary force that it did not accept was integrated into the Army. It said:

“The Tribunal was not able to establish from country information that desertion from the Battalion was regarded by the government ‑ or SLA ‑ in the same way as desertion from the SLA. The country information available, which the Tribunal quoted to the applicant …, indicates that Tamil Muslims serving in auxiliary units were not integrated members of the SLA and ‘desertion’ from those units was not regarded in the same way. The Tribunal accepts that the applicant was trying to distinguish between the ‘Guard Battalion’ and other home guard units…. The Tribunal carried out its own search after the hearing and was able to find one reference to a Guard Battalion. In 1992, Human Rights Watch reported an item from the Sunday Times of Sri Lanka which announced that the army was stepping up recruitment for the National Guards Battalion which was described as ‘a volunteer force which normally receives only five days’ training’ with a view to deploying it in eastern Sri Lanka…. This report indicates that the battalion was a volunteer force. With only five days training normally given to volunteers the Tribunal does not accept that members of the battalion were integrated into the SLA in the sense claimed by the applicant.

Further, the evidence given by the witness that the unit was disorganised gives weight to the view that the battalion was not an integrated part of the SLA. The witness’s account of the many desertions from the battalion and the lost weapons in his undated written statement in support of the applicant leads the Tribunal to conclude that these desertions and weapons loss were a cause of concern to the SLA. But it does not follow that these desertions were treated legally in the same way as desertions from the SLA. The Tribunal finds that the applicant is not being sought by the SLA as a deserter.”

6                     The Tribunal accepted that the appellant left the Battalion because of his dislike of the Army’s practices, but as it did not accept that leaving the Battalion was treated by the Army as the same as desertion from the Army, it did not accept that he had been persecuted by the Army as a result of his desertion.

7                     The Tribunal rejected the claim that security officials were seeking the appellant because he had been involved in the 1994 election campaign. It relied on country information to the effect that elections in Sri Lanka are open, and which did not claim misuse of security forces against political parties or their supporters.

IN THE MAGISTRATES COURT

The appellant relied on three grounds of review:

(a)                failure on the part of the Tribunal to take into account a relevant consideration, namely the appellant’s evidence that he received twenty five days training in the Guard Battalion;

(b)               failure by the Tribunal to provide the appellant with the opportunity to respond to the country information referred to at [5] and [7];

(c)                the Tribunal’s findings were not open on the evidence.

8                     The Magistrate rejected ground (a). His Honour noted that the Tribunal did not make a specific finding as to whether the appellant undertook five or twenty five days training. However its findings were not inconsistent with him having received the longer period of training. The substance of its findings was that it did not accept the claim that the Battalion was integrated into the Army. The Magistrate said:

“The RRT relied heavily upon the absence of information in documentary form (in the sense of human rights watch reports, country information and the like). Whilst the RRT referred to 5 days training being ‘normally given to volunteers’, this is information from a human rights watch report describing the battalion and used by the RRT in finding that the battalion, as a group, was not strongly integrated into the army.”

9                     After referring to authority that the Tribunal is only required to determine the substantive issues and not to recount every piece of evidence and every allegation, the Magistrate said he was not satisfied that the Tribunal had failed to take into account a relevant consideration:

“Rather, the RRT has clearly turned its mind to the relevant considerations, but has simply failed to recount one of the non‑essential items of evidence that is arguably relevant to this particular issue. This is a finding of fact for the RRT and not a topic for judicial review.

The RRT considered the central issue that was relevant for this part of the applicant’s claim and found against him on the basis of evidence available to the RRT. It is not for the court to undertake a merits review or form a view as to whether or not this court would make the same findings of fact that the RRT made. In the context of the decision in this case I am not persuaded that the particular factual question (the number of days of training the applicant received) was an integral element of the claim which required a specific finding of fact.”

10                  The Magistrate also rejected ground (b). His Honour reviewed the lengthy history of the application and pointed out, correctly, that the Tribunal’s “reliance” on the country information was in order to highlight the absence from it of information supporting the appellant’s claim that deserting from the Guard Battalion was viewed as seriously as deserting from the Army. His Honour first concluded that the country information fell within s 424A(3) of the Migration Act 1958 (Cth), in that it was not specifically about the appellant or another person. See Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [138] and VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [14]. The Magistrate then dealt with the appellant’s submission that notwithstanding s 424A, the failure to provide him with the country information was a denial of procedural fairness. His Honour rejected it as follows:

“It is also difficult to conclude that the applicant was denied procedural fairness in the context of the hearing and other documents in this case. It has been abundantly clear throughout that the RRT were sceptical of the applicant’s version of events with respect to his association with the Sri Lankan military and the need for some supporting information before the RRT would accept the applicant’s version of events. The substance of the concerns appears to have been clearly raised with the applicant in the transcript where the RRT member asked for supporting documents and advised that he had been unable to identify any information of that sort.”

11                  Notwithstanding this conclusion, the Magistrate went on to consider whether, if it were wrong, the appellant had thereby been denied “a possibly successful outcome”. See Baig v Minister for Immigration and Multicultural Affairs [2002] FCA 380 at [34], to which the Magistrate referred, and more recently Lu v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 340 at [47]. His Honour said:

I am not satisfied that in this case the discretion to provide a remedy by way of judicial review ought to be exercised given that the issue was extensively discussed both in documents and at the hearing before the RRT, and considered in some detail by the RRT. It does not appear to me that the proceedings could have possibly reached a different outcome as there is no further information that the applicant would seek to place before the RRT, save to draw their attention, yet again, to the amount of training that he says he undertook.”

12                  The Magistrate did not in dealing with ground (b) refer to the country information referred to at [7]. However, nothing turns on that. That matter is considered at [21]‑[24] and [29].

13                  In rejecting ground (c) the Magistrate did not accept the appellant’s submission that before the Tribunal could make a positive finding about the status of the Guard Battalion with respect to the Sri Lankan Army it ought to have had positive country information available to it. His Honour said:

“The absence of any confirmation in the wide variety of country material before the RRT is, in proceedings before the RRT, at least circumstantial evidence that events or practices being considered are not occurring within their country. It is trite to say that it is unrealistic to expect that reports by a state department or human right watches would really contain clear statements that every abhorrent behaviour by political regimes was either being engaged in or not being engaged in. The reports clearly refer to the behaviours that are being engaged in, and to a lesser extent significant events and behaviours which were previously, but are no‑longer, being engaged in by the regime. There is sufficient evidence before the RRT to support its decision, at least in the sense required for judicial review purposes.”

THE APPEAL

Denial of procedural fairness

14                  The appellants arguments on the appeal differ in some respects from those advanced before the Magistrate. It is first contended that the Tribunal denied the appellant procedural fairness in two respects. The first is its use of the country information in connection with the length of his military service. The second is its use of country information in connection with his claim to fear persecution as a former member of the Guard Battalion involved in the election.

Military training

15                  It was submitted that the Tribunal relied on the Human Rights Watch report (the report) referred to at [5] for its conclusion that with only five days training normally given to volunteers, it did not accept that members of the Battalion were integrated into the Army as the appellant claimed, and that its failure to make that information available to the appellant was a denial of procedural fairness that “may have affected the decision”.

16                  It is important to understand the course of the Tribunal’s reasoning process. The appellant’s contention was that desertion from the Guard Battalion was regarded by the government as being the same as deserting the Army. At the hearing the Tribunal informed the appellant that it was not able to establish from the country information in its possession that desertion from the Guard Battalion was regarded by the government or the Army in the same way as desertion from the Army. It quoted to the appellant country information indicating that Tamil Muslims serving in auxiliary units were not integrated members of the Army and desertion from those units was not regarded in the same way as desertion from the Army.

17                  Pausing there, had the Tribunal at that stage come to its conclusion on the review, it would not have been satisfied that the appellant was entitled to a protection visa on the basis of his desertion claim. The transcript of proceedings at the hearing makes that clear.

18                  Rather than decide the matter on the material then before it, the Tribunal gave the appellant additional time to provide documentary evidence about the Guard Battalion. The transcript makes clear that the Tribunal distinctly alerted the appellant to the reason it wanted that further information. The appellant did not provide any documentation about the Battalion within the period stipulated or at all. So at that juncture the position remained as stated at [17].

19                  The Tribunal then located the Human Rights Watch report in which the Battalion was described as a volunteer force which normally received only five days training. On the basis of this information it was not satisfied that members of the Battalion were integrated into the Army in the sense claimed by the appellant.

20                  Accordingly, the position was that at the time of the hearing the appellant had not relevantly satisfied the Tribunal. He did not provide any further documentary information, so the Tribunal would still not have been satisfied. It then found some additional material which did not advance the appellant’s case. Thus the Tribunal was still not satisfied. There had been no change in its lack of satisfaction as a result of its discovery of the report. The procedural fairness claim leads nowhere.

Former Battalion members in election

21                  The appellant claimed that security officials came looking for former Guard Battalion members who had been involved in the presidential election campaign, and had specifically asked about him. As a result of this he went into hiding. The Tribunal did not accept the appellant‘s claims that he was sought by security officials because of his political campaigning. Accordingly it did not accept that he had to resume his hiding from the authorities and had to leave Sri Lanka to escape them. Its rejection was based on country information that “elections are open and [which] does not claim misuse of security forces against political parties or their supporters” with which, it said, his account was not consistent. It was submitted that the Tribunal did not put this alleged inconsistency to the appellant. It was not claimed that this country information was not provided to the appellant.

22                  In our view procedural fairness did not require the Tribunal to put the inconsistency to the appellant. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 a Full Court said the rules of procedural fairness

“require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision‑maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”

23                  In Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230‑231 Black CJ, Ryan and Hill JJ said:

“the rules of procedural fairness do not require that the decision‑maker communicate specifically the conclusions which the decision‑maker may seek to draw from [advertisements that were known to the applicant]. If those conclusions were so unreasonable that no decision‑maker should draw them, the decision would be subject to attack for that reason, rather than for the reason that the applicant was not afforded procedural fairness.”

24                  There can be no doubt that the appellant was aware that whether the Tribunal accepted his claim that the security officials were looking for former Guard Battalion members who had been involved in the presidential election campaign was a critical issue in the case. The Tribunal asked him questions about his political activities. There is nothing to suggest that at the time of the hearing the Tribunal had arrived at a conclusion adverse to the appellant on this issue. Accordingly it was not obliged to expose its mental processes or provisional views to comment before making its decision. Such mental processes or provisional views (assuming it had such views) include the possibility of a conflict between two pieces of evidence. Similarly, the Tribunal was not obliged to inform the appellant that it might come to the conclusion, based on known country information, that there was an inconsistency between his account and that information. If it matters, it could not be said that the Tribunal’s conclusion on this issue was unreasonable in the relevant sense. The appellant produced no documentary evidence to support his presently relevant claim. The country information, of which he was aware, that elections are open, and which did not claim misuse of security forces against political parties or their supporters, provided a basis for the Tribunal’s conclusion.

Failure to take account of relevant information

25                  The relevant information was that the appellant said he had received twenty five days of training in the Guards Battalion. It is said that the Tribunal did not have regard to this. There is an initial difficulty about this contention. In his statutory declaration the appellant said he had an initial period of training lasting about ten days, and a later period of fifteen days. At the hearing the Tribunal referred to the declaration on several occasions. There is no doubt that it was familiar with its content. The lengthy exchanges between the Tribunal and the appellant and his adviser are predicated on the material in the declaration. It is true that in its reasons the Tribunal does not refer to the appellant’s claim that he received about twenty five days training. However, in its recitation of the claims and evidence, based in part on the statutory declaration, the Tribunal referred to the training the appellant had received after joining the Guard Battalion. In those circumstances it is difficult to accept that the Tribunal did not have in mind the training he said he had received, especially when it recorded country information that members of the Guard Battalion normally received only five days training.

26                  In Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 Allsop J said that Minister for Immigration and Multicultural and Indigenous Affairs vYusuf (2001) 206 CLR 231:

“does not stand for the proposition that a relevant consideration has not been taken into account and the decision‑maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. ‘Relevant’ for this purpose means that the decision-maker is bound by the statute or by law to take this into account.”

This passage was approved by Cooper and Finkelstein JJ in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29].

27                  In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 184 at [46] a Full Court said:

“It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons…. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact … and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well‑founded fear of persecution for a Convention reason.”

28                  The relevant contention or issue before the Tribunal concerned the integration of the Guard Battalion with the Sri Lankan Army. That matter was squarely addressed. Assuming that the Tribunal overlooked the training evidence (which, as we have said, is a large and difficult assumption to make), that was but a failure to advert to evidence which, if accepted, might have led it to make a different finding of fact: cf WAEE above. It is not a jurisdictional error to make a wrong finding of fact. However, as we have said, we do not accept that the Tribunal overlooked the training evidence. It may well be that it did not dwell on it because it considered it irrelevant to the question whether the Guard Battalion was integrated into the Army in the relevant sense. If that is the reason, we think it well based.

Finding not open on the evidence

29                  The Tribunal rejected the appellant’s claim to have faced persecution because he was a former member of the Guard Battalion who was involved politically in a campaign for a Muslim candidate, because the claim was inconsistent with country information. It is said there was no country information that supported this conclusion. We do not agree. The Tribunal first said that the appellant had provided no documentary evidence in support of his claim. Then it referred to country information that elections in Sri Lanka are open, and which did not claim misuse of security forces against political parties or their supporters. On that combination of considerations, the Tribunal was entitled to reject the appellant’s claims. It is not erroneous for the Tribunal to have said that they were “not consistent with country information”.

CONCLUSION

30                  The appeal must be dismissed.

Associate:

Dated:              26 May 2005