FEDERAL COURT OF AUSTRALIA

Schwallie v Minister for Immigration and Multicultural Affairs [2001] FCA 417

MIGRATION – application for protection visas – Section 424A of the Migration Act 1958 (Cth) – requirement on Tribunal to give certain material to the applicant – failure by Tribunal to extend written invitation to applicant – whether Tribunal’s failure justifies intervention by the Court – application granted and mater remitted back to the Tribunal – whether futile to remit matter to Refugee Review Tribunal

Migration Act 1958 (Cth) ss 424A, 441A(2)(a), 441A(3)(b), 476(1)(a)

Mr A v Minister for Immigration and Multicultural Affairs [1999] FCA 1086 referred to

Lek v Minister for Immigration Local Government and Ethnic Affairs (1993) 43 FCR 100 followed

Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 followed

ERROL CHRISTOPHER SCHWALLIE, JEAN VERONICA SCHWALLIE AND NICOLA JEAN SCHWALLIE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO S 112 OF 2000

O’LOUGHLIN J

ADELAIDE

11 APRIL 2001

THE COURT ORDERS THAT:

1.         The application be allowed.

2.         The application be remitted back to the Refugee Review Tribunal (differently constituted).

3.         The respondent pay the applicants’ costs which are to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     The applicants in these proceedings are Errol Christopher Schwallie, his wife Jean Veronica Schwallie and their daughter, Nicola Jean Schwallie.  The parents are both aged fifty-two; their daughter is twenty-three.  They are citizens of Sri Lanka who arrived in Australia on 4 November 1997.  Not long after their arrival, on 29 January 1998, they lodged an application for protection (class AZ) visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (“the Act”).  That application was unsuccessful.  On 13 January 1999, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant protection visas.  On 3 February the applicants applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision; once again they were unsuccessful.  On 12 September 2000, the Tribunal affirmed the delegate’s decision.  The applicants have now applied to this Court to review the decision of the Tribunal.

2                     At the time of their arrival in Australia another daughter, Ursula Anne, who had been born in Sri Lanka was already resident in this country.  Ursula Anne was identified as a permanent resident who was not dependent on the applicants.  Mr Schwallie has a sister who continues to live in Sri Lanka and a brother who is a resident of Kuwait.  Mrs Schwallie’s parents are both alive and are living in Sri Lanka.  Mr Schwallie has another older brother who is a resident of Australia and Mrs Schwallie has two brothers and a sister all of whom are residents of Australia.

3                     In the twenty years between 1976 and 1995, Mr Schwallie followed his trade as a chef in various countries including India, Saudi Arabia, Kuwait and the Maldive Islands.  He holds a diploma in International Cookery and he said in his application that he had been “trade tested for employment abroad” in 1979.  In answer to the question “what do you fear may happen to you if you go back to [Sri Lanka]”?  The following answer was given:

“We have been periodically attacked and on these circumstances we fear for our lives as we find no solution or an end to this situation.”

The applicants said of the authorities:

“They are not able to protect any individual or family these attacks springs (sic) suddenly.”

4                     Mr Schwallie submitted a lengthy type written statement of seven pages with the application for protection visas.  In the first paragraph of that statement he made the general claim on behalf of himself, his wife and his daughter:

“We were living with fear for our lives from day to day under the circumstances that prevailed in my country.  We are victims under unavoidable circumstances.  Before we left Sri Lanka we lived a life of fear and harassment.”

5                     Thereafter, he descended into substantial detail addressing the circumstances under which he and his family had lived in Sri Lanka in the years immediately prior to their departure.  Mr Schwallie said that, as a chef, he had worked in various catering functions for the United National Party (“the UNP”).  At one stage it was the political party that held power in Sri Lanka.  Mr Schwallie told of incidents where he was harassed and threatened by unknown persons about his work as a chef for UNP functions.  On one occasion, for example, unknown men told him that he had to delay serving food for an hour.  He recognised one of those men some years later, from a photograph in the paper, as a prominent figure in a rival political party.  On a separate occasion, when he was working at a function, he found that about 250 portions of food, which he called “short eats”, out of 1500 pieces had been tampered with and were not suitable for consumption.  On another occasion, guests at a UNP social function suffered from food poisoning.  Mr Schwallie said that his planned participation in that last mentioned function had been cancelled at the last minute.  On several occasions he and his family received threatening phone calls.  He associated these calls with politics.  He said that he was seen as a close associate of the President, Mr R. Premadasa, because he was one of a very few selected chefs for Presidential functions.

6                     Other serious events were described by Mr Schwallie in his statement.  He and his wife were involved in a vehicular accident and they were both set upon by some unidentified people.  He suffered a broken arm and was repeatedly hit and kicked about the head.  Mrs Schwallie was also assaulted.  On another occasion his son and his son’s wife were assaulted while they were shopping in a supermarket.  The final episode to which Mr Schwallie referred occurred on 6 August 1997 at about 12.30 am.  A gang of people were outside his home trying to forcibly open a padlocked gate.  Mr Schwallie and his family left their house by a rear door and escaped the gang by scaling a wall into a neighbour’s garden.  Mr Schwallie said that their home was trashed and that he lost all his valuables and most of his documents.

7                     From a reading of Mr Schwallie’s statement, it is obvious that he was deposing to a course of conduct that extended over a period of years.  It was conduct that he and his family treated with such concern that they moved house on several occasions in the hope that their antagonists might lose track of them.

8                     Although there was a referral to ethnic hatred in the early part of his statement, it would seem, from a reading of the totality of his statement, that he was claiming Australia’s protection only because of his fears of political persecution.  This seemed to be the view that the Tribunal took for, at one stage in its reasons, it said that the:

“… applicant indicated again that he was a marked man in Sri Lanka because of his association with the UNP, and that unknown people from the PA government would harass him and kill him.”

The acronym PA stands for the People’s Alliance, a political opponent of the UNP.

the findings and reasons of the tribunal

9                     The Tribunal accepted that Mr Schwallie’s mother-in-law was Tamil and that her home had been attacked during the 1983 communal riots.  However, the Tribunal concluded that neither Mr Schwallie, nor his wife, nor his daughter have been harmed on account of any Tamil association.  That finding has not been challenged.

10                  The Tribunal also accepted that Mr Schwallie had worked as a chef at UNP functions for the late President Premadasa, but it did not accept that he had been approached by unknown men who had told him to delay the function for an hour.  In fact, the Tribunal did not accept that Mr Schwallie or his family was “ever threatened or imputed with any political profile as a result of that incident”.

11                  As for the food poisoning, the Tribunal concluded that there was no indication that it occurred as a result of any political or other Convention related reason.  The Tribunal accepted that Mr and Mrs Schwallie were involved in a vehicular accident, but it pointed out that the assaults may have occurred for reasons other than political motives; the people with whom they collided may have been angry – or it may have been simple criminal assaults.  The Tribunal also accepted that the applicants’ home was broken into in August 1997, but it did not accept that it was the work of PA supporters:  rather the Tribunal viewed it as the work of ordinary criminals.

12                  The remaining matter to consider, and the matter upon which the present application is based, is Mr Schwallie’s association or connection with Mr Siresena Cooray, a one-time minister in the UNP Government.  Mr Schwallie claimed that he was hired by Mr Cooray to work for him as a chef.  However, the Tribunal did not accept that claim.  Its finding on the claimed relationship between Mr Schwallie and Mr Cooray was as follows:

“Given that I do not accept that the applicant was approached and harassed in 1990 in the way he claimed, I do not accept that he went to work for Mr Cooray for this reason.  It further makes no sense that he would take up an opportunity to work directly for Mr Cooray, a senior government Minister at the time, who he said organised many functions for the President, which the applicant catered for, if he had left his other employment because of attempts to have him subvert a Presidential function.

The applicant has claimed just before hearing (sic) that he worked for some time directly for Mr Cooray.  Even if I accept that this is so, the applicant has said that he worked only as a chef.  It is clear from country information at pages 13-14 of this decision that there are still enquiries about a number of Mr Cooray’s activities when he was a UNP Minister, and there are allegations that he was involved with some criminal elements.  I note that DFAT indicated in 1996 (page 12) that there had been virtually no revenge actions by PA supporters of past UNP injustices.  I further note that Mr Cooray himself continues to openly reside in Sri Lanka, and to visit overseas countries, without harassment to him.  It is clear that the PA government is dealing with his alleged criminal activities through normal legal processes.  Even if I accept that it is possible that some thugs associated with Mr Cooray may have been harassed by some individuals in Sri Lanka after the UNP lost government, the applicant does not fit any profile of an active UNP supporter or of a thug or bodyguard.  The applicant has said quite clearly that he never did anything for Mr Cooray other than normal chef duties.  Country information, provided over a number of years, indicates that ordinary supporters or associates of UNP members are not harassed in Sri Lanka.  I do not accept, therefore, that the applicant was ever harassed in the way he claimed when he worked for Mr Cooray.  I further find that the applicant would not now be of any interest to the authorities or any particular political groups as a result of a past association with Mr Cooray in the capacity he described.”

13                  Notwithstanding the fact that the Tribunal did not accept Mr Schwallie’s claims that he was the victim of political persecution as a result, in part, of his association with Mr Cooray, it remains important, for the purpose of considering the ground that was advanced on behalf of Mr Schwallie and his family, that he asserted the existence of such an association.

14                  During the course of its hearing, the Tribunal gave Mr Schwallie copies of certain papers that dealt with (inter alia) the political system in Sri Lanka and orally invited his comments of the information that was contained in them.  There were specific references to Mr Cooray in those papers.  The case for the applicants is that s 424A of the Act laid down a certain procedure that had to be followed when a Tribunal decided to submit material to an applicant for an applicant’s comments.  It is claimed that in Mr Schwallie’s case, the Tribunal failed to follow that procedure.  Should that be correct, the next step in the argument was that the Tribunal’s decision became judicially reviewable by this Court because of the provisions of par (a) of subs 476(1) of the Act.  That paragraph refers to:

“(a)     … procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed.”

The provisions of s 424A are as follows:

“(1)     Subject to subsection (3), the Tribunal must:

          (a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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

          (b)     ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

          (c)     invite the applicant to comment on it.

(2)     The invitation must be given to the applicant by one of the methods specified in section 441A.  However, this subsection does not apply if the applicant is in immigration detention.

(3)     This section does not apply to information:

          (a)     that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

          (b)     that the applicant gave for the purpose of the application; or

          (c)     that is non-disclosable information.”

15                  Section 441A, to which reference is made in subs 424A(2) sets out the methods of dispatch of certain documents.  In so far as it is relevant to these proceedings, the section states that a “document” that is specified in subs (3) is taken to be given “by giving it to the applicant …”:  par 441A(2)(a).  When one turns to subs (3) one finds that the documents include “an invitation under s 424A (other than an invitation to an applicant who is in immigration detention”.  (Mr Schwallie was not in immigration detention).  This means that the invitation must be a written invitation.  Mr Schwallie was given certain papers and documents and he was invited, orally, to comment on them.  It is, in my opinion, quite clear that any invitation that is to be extended by the Tribunal to an applicant under par 424A(1)(c) must be a written invitation.  The use of the word “document” in s 441A and its correlation with an “invitation” in par 441A(3)(b) leaves no room for doubt.

16                  Lee J in his dissenting judgment in Mr A v Minister for Immigration and Multicultural Affairs (1999) FCA 1086 described the introduction of s 424A and other statutory provisions in these terms at par 27:

“The Migration Legislation Amendment Act (No 1) 1998 (Cth) amended Pt 7 Div 3 of the Act, dealing with the exercise of the Tribunal’s powers, by repealing ss 424 and 425 of the Act and inserting six new sections – ss 424, 424A, 424B, 424C, 425, 425A.  They came into effect on 1 June 1999.  The explanatory memorandum circulated by the Minister in respect of the relevant amendments indicated that the amendments provided a code of procedure for the Tribunal to follow in conducting reviews of decisions.  The new sections, read together, may be regarded as a statutory expression of a procedure of review that is fair and just, part of the standard of review s 420 of the Act in Pt 7 Div 3 requires the Tribunal to provide.  It may be said that by inserting the new sections parliament has defined the review procedure and that failure to observe the prescribed procedure would provide a ground for review of a decision of the Tribunal under s 476(1)(a) of the Act.”

Although in dissent, I do not consider that the remarks of his Honour were in any way contradicted by the decision of the majority and I respectfully adopt them.

17                  However, it was submitted on behalf of the Minister that the information that the Tribunal gave to Mr Schwallie was not of such a calibre that it could be described as “the reason, or a part of the reason, for affirming the decision that is under review”.  In view of this submission, it is necessary to consider what part Mr Cooray played in the applicants’ case and the nature of the information that the Tribunal gave to Mr Schwallie.

18                  The first mention of Mr Cooray in the Tribunal’s reasons appears in a passage where the Tribunal was recounting the details of a statement that Mr Schwallie had submitted to the Tribunal.  The Tribunal wrote:

“The applicant sent a further statement of 18 August 2000.  In this he said that he was forced to leave his employment with a caterer because he was working at various UNP functions and he was concerned by the threats to him and his family.  Following this resignation, he worked at various functions for the UNP and was hired by Siresena Cooray.”

The Tribunal then moved on to consider the threats that the unknown men had allegedly made.  Mr Cooray figured in the aftermath of the threat:

“He had been threatened by unknown men to delay the 16 December 1990 function.  He thought they wanted him to do this as there were a lot of important people there and it would create chaos.  He had not agreed to the demands of the unknown men, and in the end they had simply left him.  Some of the food was spoiled on the day, and the function delayed by about 20 minutes.  After the event he had received many threatening phone calls from unidentified callers.  He did not go to the police, but talked to Mr Cooray, a UNP Minister, who had told him not to worry.”

Two more references to Mr Cooray followed shortly after this passage; the Tribunal referred, once again, to Mr Schwallie working for Mr Cooray as a chef “for various functions including for the President” but, the Tribunal also noted that Mr Schwallie had never worked for the UNP or for Mr Cooray other than as a chef.

19                  There is, in my view, some connection between Mr Schwallie’s claim that he had a well-founded fear of being persecuted for reasons of political opinion and Mr Cooray.  The question is whether that connection is so tenuous as to sustain the Minister’s argument that it was not the reason, or part of the reason, for affirming the delegate’s decision.  That issue can best be considered by having regard to the information that the Tribunal gave to Mr Schwallie.  Making particular reference to Mr Cooray, the Tribunal said:

“The applicants were given a range of information about the political system in Sri Lanka, the legal system, political violence in Sri Lanka, references about thuggery and individuals who were associated with corruption and criminal elements in Sri Lanka, including Mr Cooray from the UNP.  They were given an opportunity to consider this material and any other matters they might want to raise during a break in proceedings.”

20                  The Tribunal did not proceed to catalogue what was included in the “range of information” but it did, throughout the course of its reasons, refer to eight different items of information – some, but not all of which, made particular reference to Mr Cooray.

21                  For example, relying upon the United States Department’s Report on Human Rights Practices for Sri Lanka in 1997, the Tribunal noted that the report referred to the Government having arrested Mr Cooray, who was then described as a “former housing minister under the UNP Government”.  The Tribunal later stated in its reasons that it sought more recent information from the Department of Foreign Affairs and Trade about conditions in Sri Lanka.  It then referred, at length, to a cable that it received from the Department.  Particular reference was made to Mr Cooray in the cable and the Tribunal saw fit to quote the following passage:

“SIRISENA COORAY WAS ALSO A POWERFUL MINISTER IN THE UNP GOVERNMENT.  HE WAS A CLOSE ALLY OF THE LATE PRESIDENT PREMADASA.  IT HAS BEEN ALLEGED THAT COORAY WAS BEHIND SOME OF THE POLITICAL KILLINGS DURING THE UNP REGIME.  HE HAS A REPUTATION FOR CORRUPTION.  HE NO LONGER HOLDS ANY POLITICAL POSITION.  IN 1997 A PRESIDENTIAL COMMISSION OF INQUIRY PROBING COORAY’S PAST ACTIVITIES, ARRESTED AND DETAINED COORAY, ACCUSING HIM OF CONSPIRING WITH SOTHI UPALI (SEE BELOW) TO ASSASSINATE PRESIDENT KUMARATUNGA.  COORAY FILED A FUNDAMENTAL RIGHTS APPLICATION IN THE SUPREME COURT AND SUCCESSFULLY CHALLENGED THE LEGALITY OF HIS DETENTION.  THE COURT ORDERED THE GOVERNMENT TO PAY COMPENSATION.  ON 19 FEBRUARY 1998, THE COMMISSION OF INQUIRY INTO THE ASSASSINATION OF UNP CABINET MINISTER LALITH ATHULATHMUDALI RECOMMENDED THAT SIRISENA COORAY’S CIVIC RIGHTS BE SUSPENDED FOR SEVEN YEARS FOR FAILING TO APPEAR BEFORE THE COMMISSION WHEN SUMMONSED TO DO SO.  HE WAS HOLIDAYING IN AUSTRALIA AT THE TIME.”

The Tribunal did not attempt to develop any connection between Mr Schwallie and Mr Cooray.  That is understandable because of the Tribunal’s base finding that Mr Schwallie did not go to work for Mr Cooray because of any alleged harassment.  However, it leaves one asking the question:  why then did the Tribunal decide that it should give Mr Schwallie any information about Mr Cooray?

22                  Ms Maharaj, counsel for the Minister, submitted that for the information to constitute the reason, or a part of the reason, for affirming the delegate’s decision, it has to be a real or an operative part of the reason for affirming the decision.  She submitted that (what she called) “a throwaway remark”, an “aside” or a “mere mention” of a subject matter could not be regarded as “the reason or part of the reason”.  I do not consider that it is necessary to answer this particular submission because I cannot conceive how the numerous references to Mr Cooray, both in the Tribunal’s reasons and in the material to which the Tribunal referred, could be classified as a “throwaway remark” or an “aside” or a “mere mention”.  Although it cannot be stated with certainty what documents the Tribunal gave to Mr Schwallie, it is known that they included “references about thuggery and individuals who were associated with corruption and criminal elements in Sir Lanka, including Mr Cooray from the UNP”.

23                  It seems to me that it is reasonable to infer that the Tribunal reacted adversely to Mr Schwallie’s claim of political persecution because, in part, of his claim to an association with Mr Cooray; the material about Mr Cooray, to which reference has been made in these reasons and which was quoted by the Tribunal in its reasons, suggests that the Tribunal may have considered that Mr Cooray could have been the object of the authority’s attention because of his criminal activities, rather than his politics.  In any event, the Tribunal saw fit to spend much time discussing the activities of Mr Cooray and it is clear that the information that it gave to Mr Schwallie for comment included information about Mr Cooray.

24                  The remaining argument that was advanced on behalf of the minister was based on the exempting provision of par 424A(3)(a).  That provision states that s 424A does not apply to information that is not specifically about “another person”.  The minister claimed that the references to Mr Cooray in the Tribunal’s reasons was only the “mere mention” of another person.  For the reasons that I have already endeavoured to explain, I cannot accept that the contents of the Tribunal’s reasons are no more than a “mere mention” of Mr Cooray.  He loomed large in the Tribunal’s reasons.  Some might well ask why the Tribunal thought it necessary to devote so much time to Mr Cooray.  I do not know the answer to that question.  The answer is not apparent from a reading of the Tribunal’s reasons.  The fact remains, however, that the Tribunal considered it appropriate to make specific reference to Mr Cooray.  In my opinion, the Tribunal considered that the information about him would be part of its reason for affirming the delegate’s decision.

futility

25                  There are cases where the Court has declined to remit a matter for reconsideration by the Tribunal notwithstanding that a finding has been made that a particular error has been identified in the Tribunal’s reasons.  This can occur when the Court is of the opinion that it would be futile to do so: Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 136 per Wilcox J; Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 at 238 per Sackville J.  It was submitted that no useful purpose could be served by remitting this matter back in view of the grave credibility problems that confront Mr Schwallie.  The Minister claimed that the issue of credibility was unaffected by any mention of Mr Cooray.  It is not possible to agree with this proposition, because it is not possible to postulate what (if any) additional information Mr Schwallie might have been able to place before the Tribunal.  Because it is not possible to agree with counsel’s proposition, I cannot accede to it.

26                  I have come to the conclusion that the Tribunal should have given a written invitation to Mr Schwallie.  If that had occurred, then Mr Schwallie would have had much more time to respond to the invitation.  One cannot say whether he would have been able to present further and better submissions but one can say that he was denied the opportunity.  That is sufficient to answer the futility argument.

27                  In my opinion this application should be allowed.  The matter should be remitted back to the Tribunal, differently constituted, so that it may be further considered according to law.

28                  The respondent must pay the applicants’ costs which are to be taxed in default of agreement.

Associate:

Dated:              11 April 2001