FEDERAL COURT OF AUSTRALIA

Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368

MIGRATION – protection visa – finding by Tribunal that as the applicant concocted detention and mistreatment claims any inquiry of an attorney who could give evidence corroborating the claims would not assist the Tribunal – whether a duty to inquire – whether the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s detention and mistreatment claims

Migration Act 1958 (Cth) s 427(1)

Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 - applied

Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 - applied

Li v Minister for Immigration and Multicultural Affairs (1999) 96 FCR 125 – cited

Li v Minister for Immigration and Multicultural Affairs [2000] FCA 172 - cited

Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 - cited

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 - cited

Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 – applied

Hindi v Minister for Immigration and Ethnic Affairs (1998) 20 FCR 12-15 – applied

Brouussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472 – applied

Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 – cited

Mocan v Refugee Review Tribunal (1966) 42 ALD 241 – cited

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 - cited

Baban v Minister for Immigration and Multicultural Affairs [2000] FCA 1341 – cited

Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 – cited

Hill v Green (1999) 48 NSWLR 161 - cited

ANTHONYPILLAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 464 OF 1999

JUDGE:          MERKEL J

PLACE:          MELBOURNE

DATE:            27 SEPTEMBER 2000

THE COURT ORDERS THAT:

1.      The decision of the Refugee Review Tribunal made on 16 July 1999 be set aside.

2.      The matter be remitted to a differently constituted Tribunal to be determined in accordance with law.

3.      The respondent pay the applicant’s taxed costs of the application.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant, who is a citizen of Sri Lanka, arrived in Australia on 3 December 1996.  He claimed to be entitled to a protection visa on the ground that, as he has a well founded fear of being persecuted for reasons of his race and political opinion if he returned to Sri Lanka, he is entitled to refugee status under Art 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).

2                     The applicant’s claim is based on his Tamil ethnicity and the imputation by the authorities of an association between the applicant and the Liberation Tigers of Tamil Elam (“the LTTE”).  The applicant claimed that he was detained, beaten and tortured by the Sri Lankan authorities on four occasions, once in 1992 and three times in 1996, because of his Tamil ethnicity and the imputed association with the LTTE.

3                     The RRT did not accept the applicant’s claims in relation to his detention and mistreatment by the Sri Lankan authorities and affirmed the decision of the delegate of the Minister not to grant him a protection visa.  The applicant has applied to review the decision of the RRT under s 476(1) of the Migration Act 1958 (Cth) (“the Act”) on the ground that it erred in law and did not observe procedures that were required to be observed in connection with the making of the decision.

The RRT decision

4                     The RRT did not accept the applicant’s evidence in relation to his detention, stating that it was satisfied that:

“the applicant has been prepared to concoct a number of instances of detention.”

5                     The RRT then turned to consider a letter dated 28 March 1997 signed under seal by Miss Thilaga Subramaniam, a Sri Lankan attorney at law and notary public (“the attorney’s letter”).  The letter states:

“This is to confirm that Mr. Ravindrakumar Anthony Pillai being a Sri Lankan Jaffna Tamil, and a married man with wife and child, was arrested by the Police on suspicion in June 1996 when he was in Colombo.  He was detained under the Terrorism Act and was alleged to have been helping in numerous ways under false grounds.  On my intercession he was released.

Again he was arrested in October 1996 in Kandy on the false charges of collecting funds for the Terrorists, and was detained.  This was brought to my notice and with great difficulty and using some influence I got him released.

Then he was taken to custody for the third time from temporary resident in Colombo.  Again using some influence he was released from Police custody with greatest difficulty.

Since his life is in danger and in order to save his life and further harassment from the Police on my advice the said Ravindrakumar Anthony Pillai left Sri Lanka end 1996

I vouch for the above facts in my opinion, it is not safe for him to return to Sri Lanka as it will endanger his life.

This letter is given on request of Ravindrakumar Anthony Pillai outlining assistance provided to Ravindrakumar Anthony Pillai in the past, whom now residing in Australia.”

6                     During the hearing, the RRT (constituted by Mr Kissane) expressed certain concerns about the attorney’s letter to both the applicant (through his interpreter) and his solicitor (Mr Clutterbuck):

“MR KISSANE:  …lawyers tend to be very precise, and it seems to me that if a lawyer is asked to provide information about what it is that – what actions they have taken on your behalf in the past that they will go to a file and look up the dates and say that, ‘I helped him on the 6^th of June.  I helped him in September on this particular date.  I helped him in October.’  But when I look at the letter it just says, ‘June ’96,’ then it says, ‘September ’96,’ then it says, ‘October ’96.’  It doesn’t give any dates at all.

THE INTERPRETER:  I didn’t have it in control or if we have to accept what she has said, but there is a phone number on the letterhead and if you want you can contact her and verify the dates, but I can’t help, it’s – not being in my country.

MR KISSANE:  It just seems to me that the way that letter is written indicates that you or your wife have gone to lawyer, or got some letterhead or something and contrived a letter in vague sort of way, whereas if you had really been detained the dates would be set out in there.

THE INTERPRETER:  I came here just to save my life, to avoid the trouble.  I didn’t come prepared to come and stay here and prepare any documents and come in ready – come ready for all those things.  I just because my adviser asked me to obtain this letter from you I rang my wife to obtain one, and she obtained one and sent.  I have – I never – what I am doing and what I am telling is true, and I am not – I have not pre-planned or done anything to obtain – to scheme this situation.  Everything that is happening to me is putting me in trouble and in the wrong – if I prepared and produced things like that and things I will not produce – I will do more, I can’t – I would not give all these things.

MR CLUTTERBUCK:  Can I just make two points just about that letter?  Firstly the applicant has offered to the Tribunal for the Tribunal to contact the lawyers independently.  If it is suggested that the applicant has somehow been involved in obtaining this letter, and the Tribunal wants to object to the information, the applicant can really do no more than suggest to the Tribunal that they contact them independently completely of himself.  That’s all the applicant can do.

The second thing we would say is that it is difficult for us to know exactly what sort of filing systems that are kept in Sri Lanka.  Obviously Sri Lanka is not as advanced as Australia in many respects.  Just with ourselves in our office, we do not keep files for more than two years we archive it.  So any folders that are over two years old are archived, so if one of our former clients comes to us and says, ‘I want a letter of my situation from ’92,’ we would be able to say, ‘Well, we’ve got your name here, we’ve got the date we first acted for you, the date your file was closed and the result, we have got no more details than that.

MR KISSANE:  But the lawyer doesn’t say that.  The lawyer doesn’t say, ‘I can’t access the details because it has been – because the information has been archived.’  I mean, if you are a lawyer and that is the situation that is what you say, isn’t it, Mr Clutterbuck?  You say, ‘I am sorry, I can’t provide the information because it’s in the – in all the information that has been archived.

MR CLUTTERBUCK:  Well, it is hard to know because it has been indirect to you, but the applicant’s wife has approached the lawyer and said ‘Can you confirm that you acted for him in ’96 possibly?’  And she said, ‘All right.’  And she’s looked up her records probably and said, ‘I confirm that I acted for him in ’96.’  The applicant said here today he didn’t give full instructions, he didn’t say, ‘I want a comprehensive breakdown of every time Mrs Subramaniam was acting for me.’  We are submitting that things can sometimes get lost or simplified in those situations.”

7                     As a result of the concerns expressed by the RRT the applicant’s solicitor wrote to it stating:

“Concerns were raised by the primary decision maker as well as the Tribunal about the letter from the applicant’s lawyer, Miss Thilaga Subramaniam.  That letter confirms that the applicant was detained on three occasions in 1996 and released with the help of the Miss Subramaniam.

The primary decision maker identified a ‘major inconsistency’ in the applicant’s claims in the perceived inconsistency about whether the applicant was assisted by a male or female lawyer.  A close reading of the applicant’s statement shows that he clearly identified his lawyer as Miss Thilaga Subramaniam in paragraph 18 of his refugee statement.

Whilst the letter from the applicant’s lawyer is not written in perfect English, this does not lead to the conclusion that the letter is not genuine.  Sinhalese and Tamil are clearly the major languages of everyday usage in Sri Lanka, although English is also often used.

The letter does not confirm that the applicant was arrested in 1992.  The Tribunal can assume that Miss Subramaniam has a great number of clients every year, and cannot remember details of all her former clients.  This is of course why lawyers keep records.  However it is possible that Miss Subramaniam has destroyed some of her older records.  Our service destroys a client’s file after two years.  It is possible that the file containing information as to the applicant’s 1992 arrest has been closed.  It may not be Miss Subramaniam’s practice to keep ongoing client files for irregular clients.

The Tribunal will also appreciate that a letter from a lawyer is only as good as the instructions that the lawyer is given.  Miss Subramaniam was asked to confirm that the applicant was detained during 1996.  After presumably checking her records, Miss Subramaniam has been able to verify this.  She was not asked to confirm that the applicant was also detained in 1992 and may not have bothered to check this (assuming that records were still available).

The applicant suggested that if the Tribunal had any doubts about the genuineness of the letter, it should contact Miss Subramaniam directly on the contact details provided on the letter.  We submit that this is the appropriate course of action if the Tribunal harbours any residual doubts.

Sun Zhan Qui v Minister for Minister for Immigration and Ethnic Affairs, concerned a case where the Tribunal had credibility concerns about some of the applicant’s claims.  One of the matters in issue concerned the applicant’s identity and attendance at a particular university in Beijing. The applicant suggested that the Tribunal make independent arrangements to contact his parents in China and supplied an address.  The Tribunal did not do so.  The Full Court of the Federal Court found that it should have done so in the circumstances.  The court stated:

It would have been a simple matter for one of them [Australian embassy officers] to call at the house, preferably armed with a photograph of the appellant, and inquire whether he was known there; and if so, to obtain some information about his history.  There is no certainty a visit would have elicited useful information; but substantial fairness surely dictated an attempt be made: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] 1488 FCA, 23 December 1997, Wilcox, Burchett and North JJ, p 20.

We submit that similar considerations apply here.  If there are continuing concerns regarding the legitimacy of the letter, the applicant has given the Tribunal a means in which to try and clarify those concerns, independently of himself.”  [sic]

8                     In its decision the RRT made the following findings in respect of the attorney’s letter:

“The letter from the lawyer was obtained by his wife.  It was obtained after his arrival in Australia.  On the one hand it does not detail all of his claimed detentions.  On the other the ones it details are not detailed with any precision.  Given the findings above and the way the letter came into existence it does not satisfy the Tribunal that the applicant was detained as claimed.  The applicant also invited to make further inquiries of this lawyer [sic].  However, given the findings that the Tribunal has made, and the applicant’s admissions of obtaining false documents for his visa application, the Tribunal does not consider it will be assisted by making further inquiries of someone in Sri Lanka.  The applicant has had ample opportunity to provide details to this person since the hearing.  Further even if the Tribunal took the course of telephoning this person as suggested in the hearing the Tribunal would have no way of knowing or confirming who was on the other end of the telephone.  In additional the Tribunal is satisfied about its findings.  The Tribunal does not consider at this stage that evidence from this person would assist it.  Of course the applicant could at any stage have sought further material from the person himself and has not provided anything further.”

9                     Finally the RRT, after considering country information in relation to Sri Lanka, concluded that it was not satisfied that the applicant faces a real chance of persecution for a Convention reason and therefore does not have the requisite fear of persecution.

10                  Although counsel for the applicant criticised the RRT for not making its own inquiries in relation to an injury alleged to have been suffered by the applicant during his 1992 detention, and also criticised the manner in which the RRT made findings concerning the applicant’s identity card, I am satisfied that the criticism is without substance.  The criticism seeks to review the decision of the RRT on the merits rather than because of error of law or any procedural deficiency in relation to the manner in which it arrived at its decision.

11                  The issue of substance raised by counsel for the applicant related to the manner in which the RRT dealt with the attorney’s letter.  Counsel contended that the RRT breached its duty to make its own inquiries concerning the letter and, by dismissing the letter without inquiring from the attorney as to the authenticity of the events stated in it, failed to give proper, genuine and realistic consideration upon the merits to the applicant’s claims of detention and mistreatment.

The duty to inquire

12                  Section 427(1) provides that the RRT may:

“(d)     require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.”

13                  The question of whether the RRT might have a duty, rather than just a power, to undertake inquiries has been considered in a number of cases.  However, two recent cases discounted earlier authorities in favour of the existence of a duty to inquire on the basis that they were founded upon a view of the powers of review available under Pt 8 of the Act which has now been established to be wrong: see Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 at [18]-[23] per Ryan J and Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 at [29]-[32] per French J cf Li v Minister for Immigration and Multicultural Affairs (1999) 96 FCR 125 at [66] and [67] per Drummond J and Li v Minister for Immigration and Multicultural Affairs (No 2) [2000] FCA 172 at [8] per Drummond J.

14                  For the reasons given by Ryan J in Majeed and French J in Rahman it is unlikely that a mere failure to exercise a power to inquire under s 427(1)(d) will amount to a breach of any duty by the RRT.  There may be some special or exceptional circumstances, such as a failure by the RRT to honour an undertaking to inquire, where a duty arises but the circumstances of the present case do not fall into that category.

15                  In the present case the RRT considered making, but declined to make, any further inquiries in relation to the events detailed in the attorney’s letter.  The RRT concluded that, given its adverse findings in respect of the applicant’s credibility, it was not necessary for it to make the requested inquiries of the attorney in relation to the matters set out in her letter.  However, it does not follow that the RRT discharged its statutory duties in the matter by stating that the making of inquiries of the attorney would not assist it.  That statement raises the issue of whether the RRT gave proper, genuine and realistic consideration to the applicant’s detention claims.

Proper, genuine and realistic consideration

16                  It is well established that the RRT is under a duty to review the decision of the delegate of the Minister on the merits and, in doing so, must have regard to all of the material and evidence before it and make findings on all of the material questions of fact raised by that material and evidence: see Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [19] and Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 at [52].

17                  It is also well established that, in arriving at its decision, the RRT is under a duty to determine the material questions of fact before it for its determination after giving “proper, genuine and realistic consideration upon the merits” to those questions of fact: see Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 12-15 per Sheppard J; Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472 at 483 per Gummow J; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 96 per Hill J; Mocan v Refugee Review Tribunal (1997) 42 ALD 241 at 245 per Merkel J and Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28 at 64 per Merkel J.

18                  I have concluded that on a fair reading of the reasons of the RRT as a whole:

·        the RRT arrived at the finding that “the applicant has been prepared to concoct a number of instances of detention” before considering the attorney’s letter, which proffered direct corroboration of some of those instances of detention; and

·        in doing so the RRT failed to give proper, genuine and realistic consideration upon the merits to the applicant’s detention claims.

19                  My reasons for those conclusions are as follows.

20                  The attorney’s letter corroborated the applicant’s claims in respect of the 1996 detentions.  The corroboration was contained in material that was not based on hearsay evidence but, rather, was in a statement by an attorney purporting to have direct knowledge of the 1996 detentions: cf Baban v Minister for Immigration and Multicultural Affairs [2000] FCA 1341 at [22].  The alleged detentions were material facts, in the sense that they were facts upon which the applicant’s case was likely to turn.

21                  While it may have been open to the RRT to reject the applicant’s detention claims, it is difficult to accept that it could properly do so by first finding that the applicant had concocted instances of his detention (which plainly included some or all of the instances referred to in the attorney’s letter), and then use that finding as a reason for not considering the authenticity of the attorney’s letter.  After all, the attorney’s letter was relied upon by the applicant, inter alia, to establish that he had not concocted those instances of detention.

22                  Further, if the RRT was engaging in its fact finding functions according to law it is most unlikely that it would find that making inquiries of the attorney in relation to her letter would be of no assistance.  On any view the statements in the letter which related to the applicant’s detentions were material to the applicant’s claims; any finding in respect of those statements would be material to the question of whether the applicant’s detention claims ought to be accepted or rejected.  Even a finding that the letter was concocted would afford strong support for a conclusion that his claims were concocted.  Thus, inquiries from the attorney may have either reinforced or undermined a conclusion that the claims of detention were concocted.  Either way, such inquiries could be expected to “assist” the RRT.

23                  A substantial, if not the only, reason given by the RRT for its conclusion that it would “not be assisted” by making inquiries in relation to the authenticity of the letter was that it had already found that the applicant was not to be believed in relation to his evidence concerning the detentions.  The adverse credibility finding against the applicant was based on general credit findings that led to a conclusion that the instances of detention were concocted rather than upon any specific or direct evidence that established or tended to establish that the applicant had concocted the evidence concerning the detentions.  The RRT did not reject the attorney’s letter on the ground that it was concocted.  The RRT merely stated that it would not be assisted by making inquiries of the attorney as it did not “consider at this stage the evidence from this person would assist it”.  The RRT’s approach is surprising as anyone experienced in the law knows that many stories, however unbelievable, have later been found to be true by reason of the emergence of some unexpected corroborating evidence.

24                  The other reasons given by the RRT for not making inquiries of the attorney also fall short of a finding that the attorney’s letter was concocted.  The fact that the attorney’s letter was obtained by the applicant’s wife at his request may be relevant to the issue of credit but, of itself, does not afford any rational basis for concluding that making inquiries of the attorney would therefore be of no assistance.  A similar observation can be made in relation to the fact that the letter was obtained after the applicant’s arrival in Australia.  In the usual course it is after arrival, when a person first claims refugee status, that the question of corroborative evidence becomes a live issue for that person.  The fact that the letter did not refer to the 1992 detention and did not give precise details of the 1996 detentions may be matters going to its weight but, without more, are not matters upon which one could reasonably conclude that inquiring into the matters the subject of the letter would be of no assistance.  Furthermore, there is no material that reveals whether the attorney was aware of the significance of the detail of the detentions, particularly as that detail could easily have been requested, and provided, at a later date.  Similarly, the finding that the applicant had obtained false documents in quite different circumstances may go to the weight to be given to the authenticity of the evidence given in the attorney’s letter but, of itself, does not constitute a rational basis for saying that making further inquiries from the attorney would be of no assistance.

25                  Furthermore, the statement that the applicant could at any stage have sought further material from the attorney but has not provided anything further was unfair and unreasonable given that the RRT had initiated the suggestion that the letter appeared to be contrived and, as a result, was invited by the applicant to satisfy itself as to that matter.  The invitation to do so was reasonable, sensible and understandable in those circumstances.  While it is true that the applicant had the opportunity to provide further details from the attorney, it was not surprising that the applicant requested the RRT to obtain that information so it could satisfy itself that the letter was not contrived.  In any event, the statement sits uncomfortably with the earlier suggestion that a reason for the RRT not inquiring was that the applicant had “ample opportunity to provide details to this person since the hearing”, presumably meaning that the evidence would therefore be tainted.  The basis for the implied presumption that a Sri Lankan attorney at law, unknown to the RRT member, could be so easily corrupted is not stated or readily apparent.

26                  Finally, the RRT observed that if it took the course of telephoning the attorney in Sri Lanka it would not know if she was on the other end of the line.  Putting to one side the “bootstraps” nature of the observation, if the RRT’s concern as to the attorney’s identity was genuine, it would have had no difficulty in requesting the Secretary, who in turn could request an officer of the Australian High Commissioner in Colombo, to undertake inquiries of the attorney at the addresses set out in her letter.

27                  The unreasonableness and unfairness of the RRT’s response, as set out in its reasons, to the applicant’s request to it to make inquiries of the attorney has not been outlined by me in an endeavour to retry this issue on the merits, or to suggest that the RRT erroneously made findings of fact.  Rather, the RRT’s response supports the conclusion that, although the RRT purported to give proper, genuine and realistic consideration to the applicant’s detention claims, it did not in fact do so.  Of course, in an application for review under Pt 8 of the Act, unsatisfactory reasoning or illogicality do not of themselves constitute errors of law: see Singh at [44]; Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 at 420-422 and Hill v Green (1999) 48 NSWLR 161 at 174 and 176.  However, unsatisfactory reasoning or illogicality may nevertheless be indicia which, together with other factors, might persuade a court that the RRT has purported to give but has not given proper, genuine and realistic consideration to the issues it is required to determine.

Conclusion

28                  Accordingly, I am satisfied that, in failing to give proper, genuine and realistic consideration to the applicant’s claims of detention and mistreatment on three occasions in 1996, the RRT failed to properly discharge its functions under the Act in accordance with law.  The failure constituted a failure to comply with the procedures required to be observed under the Act, an error of law or a constructive failure to exercise jurisdiction by not giving proper, genuine and realistic consideration to the questions it is required to address: see s 476(1)(a), (b), (c), or (e).

29                  As the applicant has succeeded in his application for review he is entitled to an order that the decision of the RRT be set aside and the matter be remitted to a differently constituted RRT to be determined in accordance with law.  The applicant is entitled to be paid his costs of, and incidental to, the application.

Associate:

Dated:              27 September 2000