FEDERAL COURT OF AUSTRALIA

NACF v Minister for Immigration & Multicultural Affairs [2002] FCA 924

APPLICANT NACF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N1551 OF 2001

HILL J

29 JULY 2002

SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Sri Lanka.  He seeks relief under s 39B of the Judiciary Act 1903 (Cth) made applicable subject to s 474(1) of the Migration Act 1958 (Cth) (“the Act”) to those who wish to apply to the Court for judicial review of decisions of the Refugee Review Tribunal (“the Tribunal”). 

2                     The applicant applied to the respondent Minister for Immigration and Multicultural Affairs (“the Minister”) for a protection visa.  It is relevantly a criterion for the grant of such a visa that an applicant be a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as affected by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).  Generally speaking it may be said that Australia will have protection obligations to a person who is a refugee as defined in Article 1A(2) of the Convention.  That article defines a refugee as a 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

3                     The Tribunal affirmed the decision of the Minister or his delegate not to grant to the applicant a protection visa.  It is a consequence of this decision that the applicant applies to the Court.

4                     At the time the present application was filed with the Court, the applicant was not represented.  Indeed it seems that legal representation was obtained only shortly before the hearing.  The application to the Court failed to take into account the repeal of previous provisions under the Act which provided for judicial review of decision of the Tribunal.  I accepted an undertaking by Counsel for the applicant that there be filed an amended application to take account of these amendments.

5                     The Tribunal’s decision is a privative clause decision as defined in s 474(1) of the Act.  For that reason the Counsel for the Minister submitted that the Court had no jurisdiction to grant relief to the applicant.  The question of the meaning of s 474 of the Act, its interrelationship with the other provisions of the Act and its constitutional validity have been the subject of argument before a Full Court of this Court.  As I indicated to the parties, there is little point in my dealing with that issue and adding to the proliferation of first instance decisions when a judgment of the Full Court can be expected by the end of August 2002.  I accordingly proposed, and the proposal was accepted, that I hear argument limited only to the question whether the Tribunal had made a jurisdictional error such as would found the grant of relief under s 39B of the Judiciary Act 1903 (Cth).  If I was of the view that the Tribunal had made no such error, I would dismiss the application.  If, on the other hand, I was of the view that the Tribunal had made such an error, then I would adjourn the present proceedings until the Full Court had decided the appeals before it and then relist the present matter for further argument in the light of the Full Court’s reasons.

6                     So far as it appears from the Tribunal’s reasons it was the applicant’s case before the Tribunal that he had voluntarily enlisted in the Sri Lankan army after leaving school in January 1996 and undertaken two months of training, which he described as inadequate, before being sent to areas where he had been involved in actions against the LTTE.

7                     He said that the had become renowned as one of the best soldiers fighting against the LTTE.  His family home had been attacked by that organization and his parents warned that he should leave the army otherwise they and a cousin of his would be harmed.  Later in 1996 when he was on leave the LTTE stormed his house and he said, kidnapped him, held him in a camp for a period, tortured him and cut his face.  Others in the same camp who had been captured were tortured and some of them were killed.  After six weeks he managed to escape from the LTTE but was then accused at his army camp of passing army secrets to that organization and detained for a month of questioning before being sent to the front line.  He obtained some sick leave as a result of injuries and returned home to be told that the LTTE had been asking of him and that his cousin had been abducted and later killed.  He went to the funeral, although he was warned not to.  Shortly afterwards his family home was, he said, stormed by the LTTE and a warning was given that, unless he left the army, his family would be killed in the same manner.  In the result he decided to desert the army and leave Sri Lanka.  He obtained two weeks leave and arranged for his departure from Sri Lanka.  His passport was obtained for him by an uncle who was a member of parliament and was in his own name.  It noted his occupation as a student and said nothing about his being in the army.  It might be interpolated that given that he had deserted from the army as he claimed the description of his occupation as “student’ would have been desirable if he was to leave the country without difficulty. 

8                     After he first came to Australia his mother became ill and he returned to Sri Lanka in May 1997.  He said that while he was there six army men stormed his house and arrested him, telling him that he was wanted for passing secrets to the LTTE and for desertion.  He was deprived of food and tortured but ultimately released after, he said, a bribe had been paid.  He arranged again for his departure from Sri Lanka in June 1997 and came to Australia.  It was on this occasion that he applied for the protection visa. 

9                     He claimed to fear that if he returned to Sri Lanka he would be arrested as a deserter.  He feared that the LTTE would kill him as they had killed his cousin.

10                  In the course of the hearing the Tribunal member asked the applicant a number of questions about the Sri Lankan army.  In particular, the applicant was asked to name the ranks of the army, to describe how it was structured, to detail his enlistment period, to name his immediate superior and the rank of that person and the commander of the army at the time he enlisted and other aspects of his training.  The Tribunal notes that the applicant was unable to answer “nearly all questions”.  Particularly, the applicant was unable to name his superior or the rank of that superior or, for that matter, the name of the infantry training camp which had been used by the army or the period of his enlistment.  He explained his inability to answer these questions on the basis that his training had been inadequate and was a long time ago and that he had been traumatised and wanted to put these things from his mind. 

11                  The Tribunal formed the view from this inability to answer questions (and this inability continued apparently after the adjournment) that the claims the applicant made relating to the army were not true.  It may be accepted that the whole of the applicant’s case rested on his being in the army.  The applicant protested that he was telling the truth and simply could not remember but this protestation was not accepted by the Tribunal.  Indeed the Tribunal noted that it was impossible to accept the applicant’s claims.

12                  The applicant also produced to the Tribunal some documents, including what purported to be a letter dated April 1999 addressed to the applicant from the director of administration for the army advising that he was to report for duty to his regiment.  The document noted that the police and the army were involved in a scheme to arrest army soldiers who had deserted.  It is obvious from the Tribunal’s reasons that it regarded this document as a forgery, noting an admission by the applicant (when the possibility of forgery was put to him by the Tribunal member) that anything could be obtained in Sri Lanka if money was paid.

13                  The Tribunal’s findings and reasons are short.  For convenience I set them out in full.

“I accept that the applicant is a citizen of Sri Lanka and that he is a Muslim.  I have carefully considered the applicant’s claims and evidence. I have serious doubts as to the truth of any of his claims, and consider that he was not a credible witness. His claims of desertion, detention, torture and interest in him by both the LTTE and the army rest on his claims of actually having been in the army in 1996 for a period of about 8 months.  At hearing, and as detailed above, he was unable to give any detail whatsoever of basic army matters. He could not, for example, specify his period of enlistment, detail the ranks used in the army, the organisation and structure of the army, name his immediate superior nor give their rank. Having considered these matters, the independent evidence and his reasons as to why he could not provide answers, I consider that he has fabricated his claim of having been in the Sri Lankan army. I do not accept that someone who has undergone training, even if it is inadequate as claimed, and who has been in the army for a period of 8 months would know so little, in fact nothing of consequence, about the army and its operations.  Apart from these matters there are other matters that support the finding that he has never been in the army. In particular his passport identifies him as being a student.  It was issued at a time when he claims he was in the army. Also, he gave evidence at hearing that in his visa application to the Australian High Commission he also said that he was a student. I consider that when taken as a whole the evidence leads to a conclusion that the applicant has never been in the army and has fabricated his claims.  I note as well that the applicant returned to Sri Lanka. I consider that if he in fact had any fears relating to Sri Lanka of the magnitude described by him that he in fact would not have returned. I find that the applicant was not a credible witness, I do not accept any of his claims relating to having suffered any harm in Sri Lanka as being true.

Overall, I find that the applicant was not a credible witness, I find that he does not have a well founded fear of persecution for reasons of a Convention ground.”

14                  At the hearing before me, Counsel for the applicant submitted that the applicant had been denied natural justice by the Tribunal.  It was submitted that the test of knowledge of army matters which the Tribunal had given the applicant was unfair in the circumstances of the case.

15                  Counsel for the applicant pointed out that country material available on the internet reproduced in the papers before the Court and to which reference is made in the Tribunal’s reasons showed a printout date of 25 October 2001, yet the Tribunal’s reasons which purport to have been given on 24 October, the day before, predated the printout of the materials. 

16                  It was further submitted that the Tribunal should not have confined its inquiries to the matters it listed in its reasons but had an obligation to make such reasonable inquiries as it could make to enable it to determine whether the applicant had in fact been in the army.  It was noted that the proceedings before the Tribunal were inquisitorial and that the Tribunal member should not have taken an adversarial position. 

17                  It was further submitted that the material referred to by the Tribunal might not all have been put to the applicant at the hearing and that there had been a denial of natural justice.

18                  Finally it was submitted that the Tribunal should have investigated other aspects of the applicant’s case, such as whether he had a subjective fear of persecution or whether he had an objective fear of persecution, rather than merely just considering what was described as a simplistic credibility issue.  This was said to show that the Tribunal had not really exercised its jurisdiction. 

19                  Each of these submissions suffers from difficulty.  First, the question whether natural justice had been denied to the applicant is not a matter of mere assertion.  It is a matter which has to be shown.  Particularly, a submission that natural justice had been denied in the course of a hearing will require that the Court have before it a transcript of the hearing.  That transcript was not before the Court. 

20                  Secondly, the Tribunal’s reasons were in fact dated 25 August, being the date of the printout.  Further, even if the printout was made on 25 August after the Tribunal’s reasons were given (and it does not seem that this was the case) it would tell nothing of whether the material on the website was before the Tribunal on a screen and had been read by it. 

21                  Thirdly, it must be said that the cases show that there is no obligation upon the Tribunal to make inquiries whether the applicant was in the army as suggested by Counsel for the applicant.  The Tribunal may (not must) make its own inquiries and if it does, it will be obliged to put to the applicant matters that might be adverse to the applicant.  It is not an error founding relief under s 39B of the Judiciary Act 1903 (Cth) that the Tribunal did not seek to make such inquiries as might otherwise had been made by it even if the making of such enquiries by the Tribunal might have been practically possible and might have produced a result: Sayedur Rahman v Minister for Immigration & Multicultural Affairs (Hill J, 1 September 1998, unreported); Mohd Main Uddin Kamal v Minister for Immigration & Multicultural Affairs (O’Connor J, 17 November 1998 , unreported); Amankwah v Minister for Immigration & Multicultural Affairs (1999) 166 ALR 460 at [25]; Gomez v Minister for Immigration & Multicultural Affairs [2002] FCAFC 105; [2002] FCA 480 at [26].

22                  Finally, it may be said that there is no obligation upon the Tribunal to investigate each and every matter which an applicant may put forward when it has found against the applicant in a matter that is critical to the applicant’s case.  Here, as is agreed, the question whether the applicant had a well founded fear of persecution depended upon it being accepted that he had served in the army.  If he was not in the army then his case must have failed and there would then be no need for the Tribunal to consider issues such as subjective or objective fear of persecution for a Convention ground and no failure on the part of the Tribunal to exercise jurisdiction because it had not done so. 

23                  In the course of argument Counsel for the applicant sought an adjournment to enable him to read the transcript of the proceedings before the Tribunal.  Counsel had foreshadowed to Counsel for the Minister, although not to the Court, that such an application would be made.  It may be noted that a long time had elapsed from the filing of the application to the Court until the date of hearing and that the mere lapse of time might well have been a ground for refusing the adjournment.  On the other hand, provided the adjournment was for a brief time and was unlikely to result in the Minister incurring further costs, it was difficult to see that there was any prejudice to the Minister in an adjournment being granted.

24                  I decided to allow an adjournment to the applicant to permit Counsel to have access to the transcript of the proceedings but on certain conditions which Counsel agreed to.  These conditions were that on or before Tuesday 23 July, Counsel would notify the Court and the respondent Minister whether there was material in the transcript upon which the applicant relied in support of the submissions which I have already noted, particularly the submissions going to natural justice.  If there were no such notification then I indicated I would proceed to deliver judgment on the application as argued before me.  If there was, however, such notification then I directed the applicant to file and serve by a nominated date written submissions dealing with the material in the transcript.

25                  No notification has been received of matters arising out of the transcripts.  Indeed Counsel for the applicant advised my Associate that no additional submissions would be made.  It may be inferred, therefore, that there was nothing in the transcript which supported the submission that the Tribunal had failed to put matters to the applicant or otherwise denied to him natural justice. 

26                  It follows, for the reasons I have given, that the applicant has not shown that the Tribunal made any jurisdictional error.  The Tribunal’s reasons depended solely upon its assessment of the applicant’s credibility.  It is difficult to believe that a person who has enlisted in the army and is telling the truth concerning enlistment would not know the period for which he had enlisted or for that matter the name or rank of his superior officer.  Certainly the Tribunal’s assessment of the applicant’s credibility involved no error of law.  Whether the applicant was telling the truth was a matter for the Tribunal to determine.  It is not a matter for this Court on judicial review. 

27                  The application must be dismissed with costs.

Associate:

Dated:              29 July 2002