FEDERAL COURT OF AUSTRALIA
MIGRATION - application for review of decision of Refugee Review Tribunal (“RRT”) that applicant is not a refugee - whether error of law - adverse findings by RRT as to applicant’s credibility and authenticity of documents submitted by applicant - whether sufficient evidence before RRT to make such findings - whether RRT should have taken further steps to verify authenticity of documents - nature of proceedings before RRT - whether RRT failed to correctly apply the “real chance” test - whether RRT failed to consider applicant’s particular circumstances - whether RRT failed to act according to substantial justice
Migration Act 1958 (Cth), s 420, 476(1)(e)
Convention Relating to the Status of Refugees, Art 1
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, cited
Abalos v Australian Postal Commission (1990) 171 CLR 167, applied
Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259, cited
Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103, cited
Minister for Immigration, Local Government and Ethnic Affairs v Immigration Review Tribunal (1993) 41 FCR 71, cited
Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38, cited
Eshetu v Minister for Immigration and Ethnic Affairs (unreported, 10 July 1997, Full Federal Court), cited
DEV ANAN NAVARATNE v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
and REFUGEE REVIEW TRIBUNAL
NO VG 344 OF 1996
TAMBERLIN J
SYDNEY (HEARD IN MELBOURNE)
1 AUGUST 1997
|
IN THE FEDERAL COURT OF AUSTRALIA |
) |
|
|
) |
|
|
) |
|
GENERAL DIVISION |
) |
|
DEV ANAN NAVARATNE Applicant
|
|
|
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
|
|
JUDGE: |
|
|
PLACE: |
|
|
DATED: |
|
|
|
|
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant to pay the costs of the respondents.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA |
) |
|
|
) |
|
|
) |
|
GENERAL DIVISION |
) |
|
BETWEEN: |
Applicant
|
|
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
|
|
JUDGE: |
|
|
PLACE: |
|
|
DATED: |
|
|
|
|
REASONS FOR JUDGMENT
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) which determined that the applicant was not a refugee and was therefore not entitled to a grant of a Protection Visa.
The grounds of appeal pressed at the hearing were:
“(a) the decision involved an error of law within s 476(1)(e) of the Migration Act 1958 (“the Act”) in that the RRT incorrectly interpreted and applied the relevant law;
(b) the RRT did not act in accordance with substantial justice and the merits of the case within s 420 of the Act;
(c) there was no evidence to justify the making of a decision and reliance is placed on s 476(1)(g) of the Act.”
Legislative framework
It is common ground that for the purposes of this hearing the application should be treated as an application for a Protection Visa. In order to establish an entitlement to a Protection Visa an applicant must establish that Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol Relating to the Status of Refugees done at New York on 31 January 1967.
Under these instruments Australia has protection obligations to persons who are refugees, therein defined. The relevant definition is that in Article 1 of the Convention as amended by the Protocol, which provides that a refugee is any person who:
“.. owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country...”
The relevant date for deciding whether a person is a refugee is the time of the determination of the application. That is to say, in the present case, as at 3 May 1996. The circumstances existing at the time the applicant departed the country of nationality is relevant and may be determinative in the absence of facts indicating any material change in the state of affairs of the country of nationality. The relevant principles are well established and are set out in the minor authorities emanating from the High Court decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
The requirement is that the applicant must show that they have a well-founded fear of being persecuted. This includes both subjective and objective elements. In the present case, it is common ground that the applicant has a subjective fear. The question turns on whether, objectively speaking, there is a real chance as opposed to a fanciful, remote or insubstantial chance that the applicant will be persecuted if he returns to his country of nationality. See Chan at 389-391, 396-399, 407, and 429. It is clear that a real chance of persecution may exist notwithstanding there is less than a small percentage chance of persecution occurring so long as the prospect is not remote or insubstantial.
The expression “persecution” according to Mason CJ, in Chan at 388, requires some serious punishment or penalty or some significant detriment or disadvantage if the person returns; harm or threat of harm as part of a course of selective harassment of a person amounts to persecution if done for a Convention reason. Harassment can take many forms and would include denial of fundamental rights or freedoms; the imposition of disadvantage by executive act, interrogation or detention for the purpose of intimidation; and the expression of political opinion. See also Hathaway in Law of Refugee Status, 1991, ch 4.
Background
The applicant was born near Colombo. His father was a Tamil and his mother Sinhalese. Several years later his family moved to the Central Province where he went to school.
At school, where Sinhalese was the language of instruction, the applicant faced constant discrimination because he was identified as a Tamil as a result of his Tamil surname. He was given a hard time, made to sit at the back of the class, and taunted by both students and teachers. Even when things improved later and his fellow students elected him as a prefect, the teachers would not agree to it. Such discrimination caused the applicant and his sisters to change their surname to that of their Sinhalese mother in 1977 while they were in secondary school.
During the ethnic violence in both 1977 and 1983, the applicant’s family suffered. Following the 1977 riots, his family moved to Batticaloa in the east which was a mixed, but predominantly Tamil, population to escape the violence. However, in Batticaloa they were treated as Sinhalese by the Tamil militants and were given no opportunity to start a new life there. After a month they left, returning to Kandy.
During the ethnic violence in 1983, the family were attacked by Sinhalese thugs in Mampitiya, and lost all their belongings when the Mampitiya hospital quarters where they were living were burned down.
From 1988 on, the applicant and his family faced new threats from Janatha Vimukthi Peramuna (“JVP”) activities. The JVP were very active in Kandy, with many cells operating in the surrounding area. The applicant’s father, a doctor, had a medical clinic at Daulagala, south of Kandy. The applicant was employed at the clinic where he was in charge of reception and did the accounts. Towards the end of 1988, the JVP came to the clinic and demanded money. His father gave money to the JVP as a result of their demands. At this time, his father treated many people at his clinic who had been injured and whom he knew to be involved with the JVP. He could say nothing about this because he feared reprisals from both the JVP and the Sri Lankan armed forces.
In early 1989, the applicant was approached by the JVP. The JVP wanted to show that they were not racist and were trying to recruit Tamils to their cause, particularly Indian Tamils working on large estates. Initially the applicant refused to join, but they continued to pressure him. JVP members who attended his father’s clinic told the applicant to attend their meetings or otherwise he would be considered unpatriotic. He encountered similar pressures from his former school friends who were involved with the JVP, and who visited him at home after work to pressure him to join their activities against the government. The JVP members and sympathisers who put pressure on the applicant thought that he would be valuable to their movement because he was a Tamil who had fluency in Sinhala and some knowledge of Tamil.
In June 1989 the applicant attended two JVP classes, the second meeting two weeks after the first. He thought that if he became involved with them, the JVP might ease their pressure on him and stop demanding money from his father. The applicant feared that the JVP may carry out threats to harm his family if he did not support them. At that time, the JVP was very powerful and capable of carrying out the threats it made. At the second meeting, he was handed some leaflets and posters to distribute in his area. He was reluctant to do this but took them and kept them at the clinic in case the JVP came there. He destroyed the rest and when the JVP enquired, told them he had distributed his supply. They told him they would print new ones for him to distribute, and he agreed to support their efforts so that he would not be targeted by them or harmed.
In July 1989 he went to Kandy for lunch with a friend one day, returning about 6.30 in the evening. His mother told him that the army had come searching for him while he was out, with a search party of several uniformed soldiers in two jeeps. They terrified and intimated his mother, accused the applicant of being a JVP supporter, and told his mother they wanted to take him into detention, and that he must report to them at the army camp. His mother told them that he was innocent, but they would not listen. At that time the security forces were rounding up and apprehending young people whom they suspected of JVP involvement, and torturing them to confess their activities or to give them names of people who were sympathetic to the JVP or who had attended meetings. Based on that information alone, the security forces would arrest people and dispose of them, with no opportunity being given to them to prove their innocence.
When his mother told their father of the visit of the armed forces, his father told the applicant to go and stay at a friend’s house in Kandy, which the applicant did. At the end of August 1989 he went to Colombo where he secured a student visa, leaving for Australia at the end of October 1989.
The applicant’s sister followed the applicant to Australia six months later in May 1990. She had also encountered problems because of her involvement with the JVP. His sister was a school teacher and because of her fluency in Sinhalese and her ability in Tamil, the JVP used her to interpret and translate for them, including for foreign journalists. As a result, her activities in this regard came to the attention of the Sri Lankan authorities. When her father visited the police station to explain the nature of her involvement with the JVP, the police showed him photographs of her in the presence of key JVP members and journalists. The police did not believe her father when he said that she was only acting as a translator and interpreter, and said that they were treating her as a deeply committed and involved spokeswoman of the JVP who had given interviews and conferences to journalists. When the security forces initiated their crackdown, they targeted his sister, she managed to escape from Sri Lanka to Australia and was granted refugee status in 1994.
After the applicant and his sister arrived in Australia, their parents told them that they had been questioned from time to time by the Sri Lankan police who were seeking information about their whereabouts as part of their continuing investigations and activities against suspected JVP members.
On 21 November 1995, three days before his first RRT hearing, the applicant forwarded to the RRT a statutory declaration, dated 20 November 1996, outlining his claims for refugee status. In the declaration he included new claims, along with documents to substantiate these claims.
Letters and Statements
The first letter from the Sri Lankan police (“the first letter”) was dated 5 October 1991 and reads:
“Daulagala
HANDESSA
05/10/1991
Ref No PI\134\91
Dr C Panchalingam,
Daulagala,
Handessa.
Dear Sir,
Inquiry against Mr Dev Anan Navaratne
and Miss Nishanthi Navaratne
With reference to the inquiry I had with you on 03/09/91, concerning your children, namely: Dev Anan Navaratne and Nishanthi Navaratne.
Although you have been notified to produce the above-named children of yours for questioning, you have not taken any action to produce them before me, so far.
Pleased be informed that both of them should be produced immediately at this Police Station for questioning and later investigation.
Thank you,
Yours faithfully,
.....
Officer-in-Charge”
The second letter from the Sri Lankan police (“the second letter”), dated 15 September 1995 reads:
“Daulagala
HANDESSA
15th,Sept;1995
Ref No PI/341/95
Dr C Panchalingam,
Daullagala,
Handessa.
Dear Sir,
Inquiry against Mr, Dav Anan Navaratne
and Miss Nishanthi Navaratne
With reference to the inquiry I had with you on 03/09/91 and 5/6/92, and agaon (sic) on 3/10/94 concerning your children, namely Dev Anan-Navaratne and Nishanthi Navaratne.
Although you have been notified to produce the above named children of yours for questioning, you have not taken any action to produce then before me, so far.
Please be informed that despite of several request to produce your children at the police Station for queesting(sic) and investigation. You have not taken any action to produce them.
You are requested to produce them as early as possible for further questiong (sic).
Thank You,
Yours Faithfully,
Officer-in-charge
SENARATH EGODAWELA
OFFICER-IN-CHARGE
DAWLAGALA”
The undated statement from the applicant’s father reads:
“To whom it may concern,
Commission Enquiry into Disappearance of
People in Sri Lanka
* I had treated people who were injured during the JVP uprising against the Sri Lankan government.
* Some people whom I treated have disappeared during that period.
* During the commission enquiry I had provided letters to relatives of missing people.
* These letters confirmed that I had treated some of the people who are missing and these letters were presented to the commission.
* The police have threatened me several times not to appear before the commission.
* The police are still enquiring about my two children Dev Anan Navaratne and Nishanthi Navaratne’s involvement with the JVP and demanding their whereabouts.
.....”
Credibility findings
The credibility of an applicant is largely a matter of impression. There is no reason, in principle, why the observations of the High Court in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179, as to the disadvantage of an appellate body in considering credibility findings should not apply in respect of review applications to this Court under s 476 of the Act. The oft-cited remarks of the Court as to the “subtle influence of demeanour” are especially important in migration cases where many of an applicant’s assertions must be accepted at face value in the absence of any evidence to the contrary. Inevitably, a great deal must depend on the demeanour as well as the consistency of the evidence of an applicant in testifying as to specific critical facts that are incapable of being independently verified. For these reasons it will often be difficult to persuade this Court on a review application to set aside findings by an administrative decision-maker on credibility questions.
It is of central importance to the applicant’s case to establish that he had a well-founded fear of persecution if he were to return to Sri Lanka as at 3 May 1996. It is not sufficient to show that at the time when he left in 1989 there was a well-founded fear. Such evidence is often important and may be determinative if it can be shown that circumstances have not changed since the date of departure. However, in the present case there was a body of evidence to the effect that the position had changed so as to substantially reduce any threat of persecution.
In order to establish such a well founded fear of persecution at the relevant date the applicant proffered the first and second letters and the undated statement of his father.
The RRT, constituted by Ms Harper, made strong adverse findings as to the applicant’s credibility in relation to this material. She expressed her “reservations” concerning the first letter of 5 October 1991. But in relation to the second letter and the statement by the applicant’s father, she concluded they were fabricated for the purpose of deliberately misleading the RRT into concluding that the Sri Lankan authorities maintained a continuing interest in the applicant, because of his 1989 involvement with the JVP. She also concluded that the applicant was not a credible witness in respect of claims made in the letters and the evidence on which they were based.
The applicant contends that the RRT erred in law in proceeding on the basis that the claims made by the applicant, based on the police letters and the statement from his father, were to be entirely excluded. In addition, although the RRT stated that it had given the applicant the benefit of the doubt with respect to his initial claims made prior to the letters, the assessment made by the RRT of those earlier claims, was affected by its reliance on unfounded suspicions and reservations concerning the police letters and the statement.
In substance, the applicant attacks the findings in relation to the three documents, on the ground that there was no evidence or not sufficient evidence to warrant such findings. The consequence of this is said to be that the RRT acted on unfounded suspicions and adopted a mind set which distracted it from a proper performance of its task. The applicant says that the findings made were not available if the correct standard, referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363, was followed.
The applicant relies on a number of other matters. First, in relation to timing, he points out that the first letter of 5 October 1991 was tendered by his sister to the RRT, which considered her application on 10 June 1992. This was a differently constituted tribunal. It is said the earlier RRT dealing with his sister’s case, was aware of the letter and took it into account in the reasons. The letter, of course, related to both the applicant and his sister. Moreover, it is said that the RRT attached undue importance to the fact that the applicant did not submit it in support of his application until three days before the hearing on 25 November 1995.
The first letter, referring as it does specifically to the applicant, was one which might reasonably have been expected to have been produced by him in support of his application at an earlier stage of the processing of his application, rather than at what may be described as “the last moment”. In my view, on the evidence it was open to the RRT to have some reservation in relation to its late emergence in the applicant’s case.
In addition, in relation to this letter there is a report by Mr Hobbs, of the Document Examination Unit, that had been obtained by the RRT. Mr Hobbs expressed reservations about the document having regard to both the format and content of the document. Mr Hobbs was not called to give evidence, nor was there any opportunity to cross-examine him on these questions. Nevertheless, in my view, it was open to the RRT to express some reservations. The language used by the RRT, namely “whilst it has reservations” does not suggest that any undue weight was attached to this matter. Rather, the remarks serve to contrast the importance placed by the RRT on the subsequent letter and statement.
In relation to the second letter of 15 September 1995, the RRT was concerned both as to its timing and authenticity in the light of a second report by Mr Hobbs. The second letter was not proffered to the RRT until three days before the hearing in November 1994. The later report of Mr Hobbs was that “on the balance of probabilities” the letter was false. He made a detailed analysis and gave substantial reasons for this view. He also stated that absolute confirmation could only be obtained from the source of the document.
In relation to the father’s statement, Mr Hobbs, in a third report, concluded that the same typewriter was used to produce the second letter of 15 September 1995 and the father’s undated statement.
The statements of Mr Hobbs were not contradicted by any contrary evidence, notwithstanding that the reports were furnished to the applicant some time before the hearing resumed. There is nothing to suggest that no opportunity was provided to the applicant to counter the reports of Mr Hobbs.
Although some criticisms can be made in relation to the reports of Mr Hobbs, I consider there was sufficient uncontradicted evidence available to the RRT on which it could refuse to accept the applicant’s evidence on these matters as going to whether there was any real chance of persecution as at 3 May 1996.
In addition, the finding as to credibility is one of fact and degree and not one of law. There was sufficient evidence before the RRT to enable it, if it saw fit, to reject the evidence based on the two police letters and the statement and to make the strong findings which it did in relation to those documents.
The reasons of a administrative decision-maker, as the High Court pointed out in Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 271-2, are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
The evidence is not sufficient to persuade me that, as a result of the findings concerning credibility and the prominence and purpose of the letters, the RRT was distracted from considering the real issue before it. An examination of the reasons demonstrates that the RRT undertook a comprehensive and detailed investigation of this matter.
The applicant further submits that the RRT failed to act in accordance with the inquisitorial nature of the application of the real chance test in that it failed to take steps, available to it, to verify the authenticity of the police letters and the father’s statement.
The basis for this submission is that the reports of Mr Hobbs, relating to the two letters, concluded with suggestions that:
“.... checks be made via our representative in Colombo to at least confirm the accuracy of the telephone number and perhaps signature of the officer in charge of the Police station (report on first letter).
.... however absolute confirmation of my opinion would only be available from the source (report on second letter).” Emphasis added.
In the circumstances of this case, I am not satisfied that there was any obligation on the RRT to seek out further evidence as to whether the documents were authentic. While the RRT has power to require an investigation to be made if it thinks it necessary with respect to the conduct of the review, it is under no duty to investigate further than it considers necessary.
In a case such as the present, where the RRT is deciding whether a person is a refugee, there are obvious reasons why it may not be desirable to contact, or make even circumspect enquires of, the police in Sri Lanka. The terms of such enquiries might endanger the applicant’s security if he is returned to Sri Lanka. This important consideration was adverted to by Merkel J in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 at 124.
In the present case the RRT did not consider it necessary to further press their investigations to verify the conclusions reached by Mr Hobbs. There is nothing in the material before me which would justify any requirement to further pursue investigations in Sri Lanka.
There is nothing “inquisitorial” about the “real chance” test. It is a statutory criterion. It does not mandate any form of “inquisitorial” hearing or exercise.
It is true that the powers of the RRT when conducting a review under Part 7 of the Act are, in some respects, not dissimilar to those of an inquisitorial hearing. In particular:
· it can summon witnesses of its own initiative (s 427(3));
· it is not bound by legal forms or rules of evidence (s 420);
· it is to act in a quick, just and economical way (s 420);
· it can require investigations to be made by the Secretary (s 427(1));
· there is no entitlement to legal representation (s 427(6));
· there is no entitlement to examine or cross-examine witnesses (s 427);
· the review must be held in private (s 429);
· provision is made for review “on the papers” (s 424).
However, as this Court pointed out in Minister for Immigration, Local Government and Ethic Affairs v Immigration Review Tribunal (1993) 41 FCR 71 at 77, approved in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 64, it is open to the RRT to adopt a flexible procedure and to conduct the proceedings in an adversarial or an inquisitorial way as it thinks fit.
In the final analysis it does not really matter which approach the RRT adopts, provided it complies with the procedures required by the Act. There is clearly no duty on it to pursue suggestions that it seek confirmation as to the provenance of documentation placed before it. That is a matter entirely within its discretion and there is no support in the evidence for any suggestion that its exercise of discretion miscarried by not making inquiries of the police in Sri Lanka.
Accordingly, there is no substance in the suggestion that the RRT erred in not making further inquiries of the Sri Lankan police with respect to the two letters relied on by the applicant.
It should also be noted that the applicant was given an opportunity to respond to the reports of the Documents Examination Unit prior to the continuation of the hearing on 5 March 1996. He did in fact respond in the form of submissions, but the RRT found his reasons unsatisfactory. That conclusion was open to it on the evidence.
No error of law had been shown in relation to the question of the findings made concerning the credibility of the applicant, the police letters or the father’s statement.
Error of law - real chance
The error alleged is that in applying the test laid down in Chan, the RRT focussed unduly on a selected assessment of the status of the JVP and did not give due consideration to the applicant’s peculiar circumstances. This submission cannot be accepted. The reasons for decision, when setting out the claims made by the applicant, refer in detail to the history of the applicant and state his circumstances up to the time of his departure to Australia on 29 October 1989.
This material is then followed by a comprehensive and detailed consideration of the political situation in Sri Lanka from 1964 through to January 1996.
The issue, as the RRT saw it, was:
“.... to determine .... whether the applicant either individually or as a member of a group, faces treatment amounting to Convention persecution if returned to Sri Lanka now or in the reasonably foreseeable future on account of his political opinion or his ethnicity.”
The exercise undertaken by the RRT clearly directed attention to the applicant’s particular situation. There is a consideration of the documents and letters referred to above. The final section of the reasons deals with the applicant’s fear of persecution having regard to his particular circumstances. It then takes into account reports on the current situation in Sri Lanka. The conclusion of the RRT was that even if the applicant were to face questioning by the authorities on his return to Sri Lanka, there was not a real chance that, on the basis of his Tamil race, he would face such mistreatment or harassment as would constitute persecution for a Convention reason. In reaching this conclusion, specific consideration was focussed on the applicant’s circumstances, particularly on the last page of the reasons directly proceeding the above conclusion.
The RRT has clearly addressed the personal circumstances of the applicant in this matter. There is specific reference to the minimal involvement of the applicant with the JVP in 1989.
There is, in my view, no substance in the applicant’s submission on this aspect of the matter.
Even if the second letter and the father’s statement are taken at face value, without any reservations, they really rise no higher than to state that the applicant is required at the police station for questioning and investigation and that the police are seeking information as to his whereabouts. In my view, this circumstance, taken with the other material discussed by the RRT, would still leave it open to make a determination that the applicant was not a refugee.
A further submission for the applicant is that the RRT did not engage in the requisite speculative assessment of whether there was a “real chance” of persecution. The RRT correctly set out the relevant tests and the need for a real chance of persecution in the sense of a substantial, rather than remote, chance. In its conclusions it expressly adverted to that test and applied it.
It is also said, on behalf of the applicant, that the RRT did not take into account the possibility that the applicant’s sudden departure from Sri Lanka could be construed as further proof of the suspicions of the authorities. There is no evidence to support this suggestion. The applicant departed Sri Lanka seven years prior to the relevant dates. The suggestion is not based on evidence and is purely argumentative. There is nothing in the evidence to persuade me that there was any real chance that the authorities would have taken such a view or that they were sufficiently concerned about the applicant to warrant a conclusion that they would subject him to any persecution as a consequence.
Substantial justice - s 420(2)(b)
The Full Federal Court has recently considered the operation of s 420 of the Act in Eshetu v Minister for Immigration and Ethnic Affairs (unreported, 10 July 1997). The Court held that s 420(2)(b) laid down a procedure required by the Act to be observed and that a successful challenge could be made under s 476(1)(a) of the Act in the event of a failure to observe the requirement of that provision. This was held to be so notwithstanding the provisions of s 476(2) which expressly precludes challenge on certain grounds.
However, that decision does not assist the applicant in the present case because there has been no failure to observe the requirements of s 420(2)(b).
For the reasons given above, neither the evidence nor the submissions, in my view, justify a conclusion that there has been any failure on the part of the RRT to act according to substantial justice and the merits of the case. This ground really depends on the favourable determination of the applicant’s submissions in relation to the matters already discussed and in respect of which I have not accepted the applicant’s submissions.
No evidence
This submission goes to the findings on fabrication, credibility and deliberately misleading the RRT, which I have already found were open to the RRT on the evidence.
Additional evidence - United Nations Report
The applicant appended to its written Submissions in Reply a June 1993 report from the United Nations High Commissioner for Refugees (“UNHCR”), which related to the UNHCR position concerning Sri Lankan asylum seekers in Europe and North America. Part of this report was referred to by the RRT in its decision. The applicant contends that the report was selectively relied on by the RRT.
The Minister objects to leave being granted to refer to this material. Since the RRT quoted from the report I am prepared to assume that it had the whole report before it. I have therefore had regard to it. However, I am not satisfied that it has been used by the RRT in any selective manner so as to amount to an error of law. In its reasons the RRT, in the paragraph following the reference to the June 1993 report, points to similar advice having been given in a later report of February 1994 by Amnesty International. There is no suggestion that this later report was used selectively or that it was incorrect.
Conclusion
The application should be dismissed with costs.
|
I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin |
Associate:
Dated: 1 August 1997
|
Counsel for the Applicant: |
Mr R Appudurai |
|
|
|
|
Solicitor for the Applicant: |
Wisewoulds |
|
|
|
|
Counsel for the Respondent: |
Mr P J Hanks |
|
|
|
|
Solicitor for the Respondent: |
Australian Government Solicitor |
|
|
|
|
Date of Hearing: |
7 April 1997 |
|
|
|
|
Date of Judgment: |
1 August 1997 |
