FEDERAL COURT OF AUSTRALIA

Applicants S 194 of 2002 v Refugee Review Tribunal [2003] FCA 615

MIGRATION – whether the applicants were denied procedural fairness through the failure of the Refugee Review Tribunal to draw an adverse document to their attention - whether the applicants were denied procedural fairness through the failure of the Refugee Review Tribunal to consider a part B document.

Constitution s 75(v)

Judiciary Act 1903 (Cth) s 44

Migration Act 1958 (Cth) ss 417, 418(3), 424(3)(a)

Muin v Refugee Review Tribunal (2002) 76 ALJR 966 followed

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 followed

SBBA v Minister for Immigration & Multicultural Affairs [2003] FCAFC 90 cited

Minister for Immigration & Multicultural Affairs v Islam [2001] FCA 1681 cited

Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 cited

Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 204 CLR 82

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to

Jones v Dunkel (1959) 101 CLR 298 considered

APPLICANTS S 194 OF 2002 V REFUGEE REVIEW TRIBUNAL & MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 62 of 2003

JACOBSON J

19 JUNE 2003

SYDNEY

THE COURT ORDERS THAT:

1.                  A writ of prohibition be issued out of this Court directed to the second respondent to prevent the second respondent from acting on the decision of the first respondent made on 14 May 1999.

2.                  A writ of certiorari be issued out of this Court directed to the first respondent removing into this Court the decision of the first respondent made on 14 May 1999 and hereby quashing that decision.

3.                  A writ of mandamus be issued out of this Court directed to the first respondent directing the first respondent to hear and determine the applicants’ review application according to law.

4.                  Time be extended to the date of the filing of the originating process in these proceedings.

5.                  The second respondent pay the applicants’ costs of the proceedings.

6.                  There be no order as to the costs of the first respondent in these proceedings.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application for the issue of constitutional writs under s 75(v) of the Constitution.  The applicants also seek an extension of time for the making of this application. 

2                     The primary applicant is a Tamil Hindu priest from Sri Lanka.  The remaining applicants are his wife and three children.  I will refer to him as “the primary applicant”.

3                     Proceedings were commenced in the High Court on 27 May 2002.  They were remitted to this Court by her Honour, Justice Gaudron, on 4 November 2002 under s 44 of the Judiciary Act 1903 (Cth).

4                     The applicants seek prohibition directed to the second respondent (“the Minister”) and certiorariand mandamus directed to the first respondent (“the RRT”) effected at quashing and preventing enforcement of a decision of the RRT made on 14 May 1999.

5                     In that decision, the RRT affirmed a decision of a delegate of the Minister made on 16 July 1997 refusing the grant of protection visas to the applicants.

6                     The applicants claim that the decision of the RRT was affected by jurisdictional error by reason of denial of procedural fairness on two grounds.

7                     The first ground is that it is said that the RRT took into account documents and matters adverse to the applicants being country information contained in six cables and reports of the Commonwealth Department of Foreign Affairs without notice first being given to the applicants and without providing them with copies.  I will refer to this as “the adverse documents case”. 

8                     The second ground is that the applicants say they were misled by letters to them from the RRT dated 4 August 1997 and 3 February 1999 into believing that a favourable document which had been before the Minister’s delegate would be given to the RRT.  The applicants say that the document was not sent to the RRT. 

9                     The favourable document was a country information report dated 19 February 1996 provided to the RRT from the Department of Anthropology and Archaeology, James Cook University of North Queensland.  It is document No CX16598.  I will refer to this document as “the Part B document”.  It includes the following salient passage:-

“There is certainly a great possibility that Tamil Hindu priests in Colombo might be in danger if not from Sinhala authorities possibly from the general population.  Tamil priests have been attacked in the past.  There is every possibility that Tamil priests in Colombo could be in some danger from the LTTE.”

10                  The reference in the document to the LTTE was to the “Liberation Tigers of Tamil Eelam”.  I will also refer to this as “the LTTE”. 

11                  I will refer to the second ground on which the application is made as “the favourable documents case”. 

Background Facts

12                  The primary applicant was born on 11 August 1951 in the city of Jaffna in the Northern Province of Sri Lanka.  This is an area where the LTTE is active and has, at various times, held control. 

13                  The primary applicant and his family first arrived in Australia in 1995.  He and his wife and children applied for protection visas on 16 May 1996.  The primary applicant claimed to have a well-founded fear of persecution on the ground of race, namely Tamil, imputed political opinion, mainly support for the LTTE and membership of a particular social group, namely Hindu priests.

14                  On 16 July 1997, the Minister’s delegate refused the application for protection visas.  The delegate referred in her decision to the Part B document in the following passage:-

“I do not consider that the applicant’s position as a priest necessarily places him in a situation of danger from either the LTTE or the authorities.  Although I acknowledge that (CX16598) Hindu priests may face some resentment from some Sinhalese …”  

15                  On 4 August 1997, the applicants applied to the RRT for a review of the delegate’s decision.

16                  On the same day, 4 August 1997, the RRT wrote to the primary applicant acknowledging receipt of the application.  The letter stated:-

“The Tribunal has asked the Department to send a copy of its documents about your case to the Tribunal.

When we receive the Department’s documents, the Tribunal will look at them along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour immediately.  This is known as “review on the papers”.

If the initial “review of the papers” does not result in a decision in your favour, you will be offered an opportunity to attend a hearing to give oral evidence to the Tribunal.  Some hearings are conducted by video or telephone conference.”

17                  On 3 February 1999, the RRT’s presiding member came to the view that he was not prepared to make a decision favourable to the primary applicant on the papers.

18                  On 3 February 1999, the RRT wrote to the primary applicant in the following terms:-

“The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone.  You are now entitled to come to a hearing of the Tribunal to give oral evidence in support of your claims.  You are also entitled to ask the Tribunal to obtain oral evidence from another person.”

19                  On 15 April 1999, the applicant appeared before the RRT to give oral evidence.  He was assisted by a Tamil interpreter and by his migration agent, Mr Selliah.

20                  On 14 May 1999, the RRT gave its decision affirming the decision of the delegate.  I will refer below in some detail to the reasons for the decision of the RRT.

21                  The primary applicant sought judicial review of the decision of the RRT.  On 4 February 2000, O’Connor J ordered that the application be dismissed.

22                  An appeal from her Honour’s judgment was dismissed by a Full Court (Heerey, Moore and Goldberg JJ) on 15 December 2000.

23                  Special leave to appeal to the High Court was refused on 20 November 2001. 

24                  On about 21 December 2001, the primary applicant requested a more favourable decision from the Minister under s 417 of the Migration Act 1958 (Cth) (“the Act”).  The request was refused on about 12 April 2002.

The Claims and Evidence of the Primary Applicant before the RRT

25                  The primary applicant was the only applicant who made special claims to refugee status under the Convention.  His wife and children claimed as members of the primary applicant’s family.

26                  The primary applicant claimed that he had left Sri Lanka to escape persecution at the hands of the government security forces and also at the hands of the LTTE.  He said that he would be arrested, tortured and put to death because he was a Tamil and had lived in the area under the control of the LTTE.

27                  The primary applicant gave evidence of a number of incidents of alleged persecution.  These incidents included numerous arrests and assaults by the security forces between 1984 and 1999 for the purpose of extracting information from the primary applicant about LTTE hideouts.  He also gave evidence of a number of arrests in Colombo in 1995.

28                  The primary applicant’s representatives at the hearing submitted that the delegate was wrong in concluding that the primary applicant was not at risk as a Hindu priest.  It was submitted on behalf of the primary applicant that priests have been persecuted by the LTTE and the government because of the position of Hindu priests as peacemakers.

29                  It was also submitted that the primary applicant would be readily identifiable in Colombo as a Tamil Hindu priest by his clothing and facial powder.

30                  The primary applicant’s advisers submitted that he was particularly worried about his thirteen year old son who he said would be forcibly recruited by the LTTE if he returned to Jaffna.

31                  The RRT member put to the primary applicant that he said in his statement that he had only been arrested once in Colombo in August or September 1995 but, at the oral hearing, he said at first that he had been arrested twice and, later, that he had been arrested three times.

32                  The RRT member also put it to the primary applicant that the Australian Department of Foreign Affairs and Trade had advised that, despite the activities of the LTTE, the army in Jaffna had maintained a commendable level of discipline.   This was a reference to DFAT country information report No 440/98 dated 30 November 1998, Document No CX 32897 (“CX32897”) which is one of the documents relied upon by the applicants in the adverse documents case.

33                  The RRT stated in its reasons, and apparently put to the primary applicant, that there had been no disappearances of civilians from Police or Security Forces in Jaffna since July 1997.  This also was a reference to CX32897.

34                  The RRT recorded that the primary applicant said in response to this that “even today” there was news in the papers that many persons had gone missing.  The RRT noted that there was nothing in the evidence adduced by the primary applicant which would support this submission.

35                  The RRT member also put to the primary applicant that DFAT had advised that arrests mainly took place during raids on houses conducted on the basis of military intelligence.  This was a further reference to CX32897.  The RRT recorded that the primary applicant responded that this was ultimately what they said but, in fact, a lot of incidents did take place.

36                  The RRT member took this question further.  He put it to the primary applicant that having regard to the information in CX32897 he did not consider that the primary applicant would be in danger if he returned to Jaffna merely because he lived there while it was under the control of the LTTE.  The RRT member noted that the vast majority of the population of Jaffna lived in the area during that period. 

37                  In response, the primary applicant said he could be arrested at any time.  He referred to the possibility of arrest of his thirteen year old son.

38                  The RRT member then turned in the section of his decision which dealt with the RRT’s evidence, to the claim that the primary applicant would be persecuted by reason of being a Hindu priest.  He referred to the press clippings submitted by the primary applicant’s advisers.

39                  However, the RRT member stated in this section of his reasons that the evidence did not establish that Hindu priests had been arrested merely because they were priests.  The RRT member stated that the information available to him suggested that the Sri Lankan Government respected freedom of religion.  Normal religious ceremonies were said to be taking place in Jaffna at that time. 

40                  The last mentioned observation was followed by a reference to an item of country information in Asiaweek, 7 November 1997, Document No CX28740 (“CX28740”) which is one of the documents relied upon in the adverse documents case.  The RRT member’s observation is supported by a reading of CX28740.

41                  The RRT member stated, and seems to have put to the primary applicant, that the RRT did not accept, on the basis of CX28740 that the primary applicant would be persecuted as a Hindu priest.  In response, the primary applicant reiterated his claim that he could be readily identified and this increased his chances of arrest.

42                  The RRT member also put it to the primary applicant that there was no evidence which would suggest that the LTTE was forcibly recruiting young boys on the Jaffna Peninsula which was, at that time, under the control of the Sri Lankan Government.  The primary applicant replied that it might appear that way on the surface but the LTTE was insistent that one member of each family should join.

43                  The RRT dealt in a separate section of its reasons with the situation in Colombo by referring to a number of items of country information.  It set out an extract from DFAT Cable CL821 dated 13 February 1998, Document No CX28768 (“CX28768”) which is one of the documents relied upon in the adverse documents case.

44                  The quote from CX28768 included a statement that there was a tighter security situation in Colombo following LTTE attacks.  The tighter security situation was said to be felt especially by members of the Tamil community. 

45                  The RRT member noted that those at particular risk of being detained in roundups or cordon and search operations were young Tamils recently arrived from the North.  Reference was made inter alia to DFAT Cable dated 19 December 1995, Document CX12970 (“CX12970”) which supports the RRT’s remark.

46                  CX12970 is another of the documents relied upon by the applicants in the adverse documents case.

47                  The RRT concluded its section on the position in Colombo with the following remarks:-

“In its most recent assessment of the human rights situation in Sri Lanka the Australian Department of Foreign Affairs and Trade stated that there had been no reports of disappearances in police custody in Colombo over the past twelve months.  However it was estimated that approximately half of the people in detention in Colombo were mistreated and that in a small number of cases the mistreatment was serious (DFAT cable CL855, dated 22 April 1998, CX29633).”

48                  I will refer to the DFAT Cable mentioned by the RRT as “CX29633”.  An examination of CX29633  reveals that the above-mentioned statement made by the RRT may contain a misleading account of the content of the document.  I will refer to this below.

49                  The applicants rely on CX29633 as a further document in their adverse documents case.

The RRT’s findings and reasons for its decision

50                  The RRT did not find the primary applicant an impressive witness based on his demeanour.  The RRT stated that, in addition, there were significant inconsistencies in his evidence.

51                  Having regard to the RRT’s impression formed at the hearing, the RRT did not accept the primary applicant as a witness of truth.

52                  The RRT had regard to the fact that the primary applicant returned to Sri Lanka twice after coming to Australia and also to his delay in lodging his application for a protection visa in coming to the view that the primary applicant did not genuinely fear that he would be persecuted for Convention reasons if he returned to Sri Lanka.

53                  Moreover, having regard to the RRT’s opinion of the primary applicant’s credibility, it did not accept his evidence of arrests, assault and torture in the period from 1984 to 1989.

54                  Also, the RRT did not accept the applicant’s evidence of his arrests in Colombo in August or September 1995.  It regarded as implausible the primary applicant’s evidence that he had forgotten about the third arrest.  The RRT came to this view notwithstanding what, on its face, appeared to be corroboration in a facsimile.  The RRT considered the facsimile to be a fabrication.

55                  The RRT relied upon CX32897 to support a finding which it made that arrests are not random or arbitrary.  It found that there was nothing in the evidence to suggest the primary applicant would be arrested if he returned to Jaffna.  It regarded the primary applicant’s assertions to the contrary as self-serving and not supported by the country information.

56                  The RRT rejected the submission that the primary applicant would be at risk of arrest because he is a Hindu priest.  The RRT’s finding is important and I will set it out as follows:-

“The Applicant’s representatives suggested that the Applicant would be at specific risk of arrest because he is a Hindu priest but there is nothing in the information available to me to suggest that the Sri Lankan police or army are arresting Hindu priests because they are Hindu priests.  The Applicant’s representatives have referred to reports of cases in which Hindu priests have been arrested and I accept that this has occurred.  However, as I noted in the course of the hearing before me, this does not mean that the Hindu priests in question were arrested by reason of their membership of the particular social group…Catholic priests have likewise been arrested on occasion on suspicion of assisting the LTTE (see DFAT cable CL38147, dated 8 November 1995, CX12546).  However I do not accept that the fact that one can point to instances where priests, or any other similar occupational group for that matter, have been arrested on suspicion of assisting the LTTE means that the members of that group are being arrested by reason of their membership of that group rather than by reason of the suspicion (which may or may not turn out to be well-founded) that they have been assisting the LTTE.  I likewise do not consider that the evidence before me supports the submission that Hindu priests as a group are at particular risk of being suspected of assisting the LTTE merely by reason of the fact that they are priests.”

57                  The RRT also rejected the primary applicant’s claim that he had a genuine fear that his thirteen year old son would be forcibly recruited by the LTTE.  The RRT made this finding primarily on credibility grounds.

58                  The RRT accepted that in order to return to Jaffna, the primary applicant and his family would have to land at Colombo International Airport.  The RRT noted country information in documents such as CX12970 that the persons principally at risk of arrest were young Tamils recently arrived from the North and East.  The RRT rejected the claim that this gave rise to a well-founded fear in the following passage:-

“As the Applicants’ representatives submitted, this does not mean that all other Tamils from the Jaffna Peninsula are at no risk of persecution but it is relevant to the assessment whether there is a real chance, or only a remote chance, that they will be persecuted.  Since the applicant is in his forties and since neither he nor his 13 year old son will have recently arrived from the North if they return to Colombo now, I do not accept that they come within the category of those who are at particular risk of being arrested in Colombo.”

The Adverse Documents Case

59                  The documents on which the applicants relied to support the adverse materials case are as follows:-

60                  I will refer to these documents collectively as “the adverse materials”.

61                  In his affidavit affirmed on 28 October 2002, the primary applicant states that he did not receive and was not aware of the substance of the contents of the adverse materials (with the exception of part of CX32897) before the decision of the RRT was handed down.

62                  The primary applicant also states in his affidavit of 28 October 2002 that if he had been aware of the adverse materials, he would have done something to answer them.  In particular, he says that he would have arranged for his migration agent or solicitor to make further submissions to the RRT with a view to seeking to highlight those parts of the documents which assisted his case and to challenge those parts which were adverse to his case.

63                  The primary applicant also says that he would have sought to bring before the RRT additional evidence to the effect that it was unsafe for him to return home and that he would have undertaken research or further research to obtain additional information or documents favourable to Hindu priests.  The primary applicant provided examples of documentary evidence that he would otherwise have led before the RRT.

64                  The documents which comprise the adverse materials are items of country information about Sri Lanka.  They contain information which is not specifically about the primary applicant and is just about a class of persons of which the primary applicant is a member; see s 424(3)(a) of the Act.  However, the decision of the RRT was handed down before the enactment of s 424A.

65                  Accordingly, it seems to me that in so far as the adverse materials contained propositions unfavourable to the primary applicant’s case which the RRT intended to rely upon to make findings against him, it was bound to give the primary applicant a reasonable opportunity to answer those propositions; see Muin v Refugee Review Tribunal (2002) 76 ALJR 966 (‘Muin’) at [64] per Gaudron J, cf at [266] and [268] per Hayne J; see also Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 (‘Lam’) at [81] – [83] per McHugh and Gummow JJ and at [150] per Callinan J.

66                  However, an analysis of the adverse materials shows that, with one exception, the unfavourable propositions in those documents were either put to the primary applicant by the RRT or were not relied upon by the RRT as part of its reasons for affirming the decision of the delegate.  I will deal with each of the documents comprising the adverse materials seriatim.

67                  The RRT relied on three propositions unfavourable to the primary applicant’s case which it drew from CX32897 but each of the propositions was put to the primary applicant and he was given an opportunity to respond.  The RRT recorded this in the reasons for its decision.  I referred to what the RRT said at [32] – [37] above.

68                  The RRT also relied on a proposition unfavourable to the primary applicant which it drew from CX28740.  This was that the primary applicant would not be persecuted merely because he was a Hindu priest.  However, the RRT stated that it put this proposition to the primary applicant and it recorded his response.  I referred to what the RRT said about this at [39] – [41] above.

69                  The RRT referred in its reasons to a proposition taken from CX28768 namely that the LTTE was attacking cities in the south and as a result there was a tighter security situation in Colombo which was felt especially by Tamils. 

70                  This proposition does not seem to have been put the primary applicant but it was unnecessary for the RRT to do so because the proposition was favourable to the primary applicant’s case.  I referred to what the RRT said about CX28768 at [43] – [44].

71                  The RRT dealt in its reasons with a proposition taken from CX12970 namely that persons most at risk from detention were young Tamils recently arrived from the north.  But it cannot be suggested that the RRT was bound to put this proposition to the primary applicant because it is plain that the substance of the document was referred to by the primary applicant’s migration agent in a submission to the RRT dated 4 April 1999.

72                  I referred at [45] and [58] to what the RRT said about CX12970.  It is clear from the passage which I have set out at [58] that the RRT dealt with the submission put to the primary applicant’s migrant agent about this document.  In my view it is plain that there was no denial of procedural fairness in relation to CX12970.

73                  The RRT referred to two propositions from CX29633.  The first was that there had been no reports of disappearances in police custody in Colombo for twelve months.  In fact, the document states that there had been no reports of disappearances in Jaffna for over twelve months.  A similar statement was contained in CX32897 and this proposition was put to the primary applicant; see [33] - [34] above.

74                  The second proposition, which is recorded in the passage which I have set out in [47] above, was that half of the people in detention in Colombo were mistreated and in a small number of cases the mistreatment was serious.  This proposition does not seem to have been put to the primary applicant but it was unnecessary to do so because the statement was favourable to the primary applicant’s case.

75                  Counsel for the primary applicant pointed out that there were two favourable portions of CX29633 to which the primary applicant’s attention was not drawn by the RRT. 

76                 The first favourable remark appeared after the statement in CX29633 that there had been no reports of disappearances in Jaffna since 1997. 

77                 The full text of the relevant paragraph is as follows:-

“There have been no reports of disappearances on the Jaffna Peninsula since July 1997.  However, there are at least 379 cases of disappearances which took place in Jaffna in 1996 which have never been accounted for, despite the work of a military board of investigation set up by the Government.  International organisations present in Jaffna consider the missing people are probably dead.” (emphasis added)

78                  In my view there was no obligation on the RRT to draw to the primary applicant’s attention materials favourable to his claims.  Although procedural fairness required that the primary applicant be given a reasonable opportunity to place before the RRT material in support of his claims, it was for him to make good his claim that he was entitled to protection; see Muin at [265] – [266] per Hayne J; SBBA v Minister for Immigration & Multicultural Affairs [2003] FCAFC 90; Minister for Immigration & Multicultural Affairs v Islam [2001] FCA 1681; Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 at [13].

79                  However, it seems to me that procedural fairness would have required the RRT to draw the bold portion of CX29633 to the primary applicant’s attention if the effect of that part of the document was to render misleading the statement that there were no reports of disappearances since July 1977.  If that were so, there would have been a denial of procedural fairness because the primary applicant could not have had an opportunity to deal with the proposition if it was stated in a misleading fashion.

80                  But in my opinion, what was put to the primary applicant was not misleading.  The RRT’s statement dealt with the current position in Jaffna.  The emphasised portion referred to the position in the previous year.  I do not see that what occurred in the previous year so qualified the current situation as to render the RRT’s statement misleading. 

81                  Thus, all that the RRT omitted to tell the primary applicant was information which was favourable to him.  As I have said, there was no obligation on the RRT to provide this information to the primary applicant.

82                  The second favourable remark in CX29633 was as follows:

“By contrast, the situation in the East and the North is more bleak, and there are concerns about the mistreatment of detainees on the Jaffna Peninsula.  While the rate of arrests in Jaffna is fairly low and military intelligence is reliable, it is estimated that almost all detainees are seriously mistreated or tortured while in military camps.”

83                  As I have pointed out above, it does not seem to be that, in the absence of anything which may have misled the primary applicant about the existence of the document or its contents, there was any obligation to draw it to the primary applicant’s attention.

84                  The last of the adverse materials documents was CX12546.  I set out at [56] the passage in which the RRT referred to the document.

85                  The effect of the document was that two Catholic priests had been arrested while attempting to enter LTTE controlled territory with large amounts of undeclared cash.  That is to say, the substance of the document is that they were arrested on suspicion of assisting the LTTE.

86                  It is evident from the passage which I have set out at [56] that the RRT used CX12546 to draw an adverse inference against the primary applicant’s case, namely that priests, whether they be Catholic or Hindu, who were arrested, were apprehended because they were suspected of assisting the LTTE. 

87                  This proposition was not put to the primary applicant.  It is a different proposition from the one which was put on the basis of CX28740, as to which see [39] – [41] and [68].  In my opinion, it follows that he was denied procedural fairness because he was not given an opportunity to meet an important plank in the RRT’s reasons for dismissing his claim.

88                  There was evidence before me as to documents  which the primary applicant or his advisers could have submitted to the RRT had they known that CX12546 would be applied unfavourably to the primary applicant’s claim.  The first document was an internet journal article entitled “News from Tamil Eelam - 12.03.1997 – Arm the Spirit”.  The article contains the following passage after a subheading “Jaffna Priest Hangs Himself in Temple”:-

“The Hindu priest of a Jaffna temple has committed suicide on the premises after failing to trace his brother who was arrested last week by the Sri Lankan army.  His brother – also a priest of the Meesalai Vellaimavady Ganesh Temple – was arrested on frivolous charges as part of the Sinhala-Buddhist army’s routine harassment of the Hindu clergy.”

89                  The second document was an article which appeared in “The Toronto Star” on 27 February 1999.  The article was entitled “Tamil war casts long shadow”.  It included a passage as follows:-

“Religion has been a factor in the war, with the Sinhalese Buddhist clergy supporting a Sri Lankan government hard line against Tamil separatism.  The mostly Hindu Tamils support the Liberation Tigers of Tamil Eelam, who have been fighting for a separate Tamil homeland since 1972 to secure rights for Tamil language and culture.  Many Christians also support the Tamil Tigers.”

90                  It follows, in my opinion, that the primary applicant was denied an opportunity to answer the finding which the RRT made, in part on the basis of CX12546, that Hindu priests are not persecuted merely by reason of the fact that they are priests.

91                  I cannot conclude that the denial of that opportunity made no difference to the outcome of the proceedings before the RRT; see Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 204 CLR 82 (“Aala”). 

92                  Thus, the adverse documents case succeeds in relation to CX12546 but it fails in relation to all of the other adverse materials.

The favourable documents case

93                  It seems to me to be plain that the Part B document was very favourable to the primary applicant’s claim.  I have set out the salient passage at [9] above.

94                  The Minister did not contend that the Part B document was not considered by the Secretary of the Department to be relevant to the review of the delegate’s decision by the RRT.  There was no question but that the Secretary was required to give the Part B document to the Registrar of the RRT in accordance with s 418(3) of the Act.

95                  The first question which then arises is whether I should draw an inference that the Part B document was not “given” to the RRT.

96                  In Muin it was an agreed fact that the Department’s file was sent to the Registrar and that the file did not include hard copies of the Part B documents.  A majority of the Justices of the court were prepared to draw an inference from the agreed facts that the RRT did not have and did not have regard to the Part B documents in those proceedings; see e.g. at [60] per Gaudron J.

97                  Here, although it appears from the RRT’s reasons that the RRT had the Department’s file, it was not an agreed fact that a hard copy of the Part B document was not given to the Registrar.  However, for the reasons set out below, I am prepared to draw the same inference as was drawn by the majority in Muin that the RRT neither had nor had regard to the Part B document.

98                  In my opinion this inference should be drawn because the document was material to the primary applicant’s claim but it was not mentioned in the RRT’s reasons.  In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69], McHugh, Gummow and Hayne JJ said that a court is entitled to infer that a matter not mentioned in a s 430 statement was not considered to be material.  Yet here, the Part B document was in my opinion so obviously material that the failure to refer to it gives rise to an inference that the RRT did not mention it because the Part B document was not put before the RRT.

99                  Moreover, the way the Part B document was described by the delegate in the passage which I have quoted at [14] leads me to the view that there was nothing in the delegate’s decision to suggest to the RRT that the Part B document was favourable to the primary applicant’s claim and ought to be considered by the RRT.

100               Rather, the delegate’s acknowledgement, for which the Part B document was cited as an authority, that Hindu priests may face some resentment, misstated the gravamen of the Part B document which said in plain terms that there was a great possibility that Hindu priests may be in danger.

101               Counsel for the applicants submitted that a further reason why I should draw an inference that the document was not given to the RRT was that the Minister called no evidence as to whether the Part B document was put before the RRT or was taken into account by it.

102               There are difficulties in relying upon Jones v Dunkel (1959) 101 CLR 298 in this context because the members of the RRT enjoy the same immunity in the performance of their functions as are enjoyed by members of the judiciary; see Muin at [25] per Gleeson CJ and at [197] per Kirby J. 

103               It would be destructive of this immunity to draw an inference that the RRT did not have or take the Part B document into account because no evidence was called from the RRT to that effect.

104               But it seems to me that I can take into account that there was no evidence called from the Secretary of the Department or the Registrar of the RRT that the Part B document was delivered to the RRT.  Accordingly this is a further reason why I am prepared to draw the necessary inference.

105               Counsel for the Minister submitted, inter alia, that I should not draw this inference because the Part B document was included on CISNET, which is the network of information databases available to all refugee protection visa decision makers in the Department and the RRT.

106               However, it seems to me that I should reject this submission because a similar submission was rejected by the majority of the High Court in Muin.

107               The principal question which I have to determine is whether the primary applicant was misled into thinking that it was unnecessary to draw the Part B document to the RRT’s attention and whether he was thereby denied procedural fairness.

108               The primary applicant gave evidence that he had been misled and of the steps he would have taken had he been aware of the fact that the Part B document had not been physically transferred to the RRT.

109               He affirmed in his affidavits that, when he read the letters from the RRT dated 4 August 1997 and 3 February 1999, he believed that the RRT had received and had considered the Part B document.  The primary applicant also affirmed that had he been aware prior to the making of the RRT’s decision that the Part B document had not been physically sent to the RRT, he would have taken a number of steps to counter this situation. 

110               The steps which the primary applicant says he would have taken to overcome the absence of the Part B document were set out in his affidavit of 1 November 2002.  They were that he would have:-

·        sought production of the part B document

·        arranged to have a migration agent or solicitor act for him to make submissions as to how the part B document assisted his case.

·        sought to bring before the RRT additional evidence to the effect that it was unsafe for him to return to Sri Lanka.

·        undertaken research and submitted information or documents which were favourable to Hindu priests such as a decision of the RRT in another application which was specified in the affidavit.

111               The primary applicant was cross-examined effectively on three aspects of his affidavit evidence.  The first was as to whether he in fact held the belief that the RRT had the Part B document.  The second was that paragraph 29 of his affidavit of 28 October 2002 was strikingly similar to the agreed facts in Muin.  The third was as to what he said he would have done to meet the absence of the Part B document.

112               When the primary applicant was cross-examined as to his alleged belief that the RRT had the Part B document, I had doubts as to whether I could accept his evidence.  However, having read and re-read the transcript, I have come to the view that the primary applicant did in fact have a belief that the RRT had received documents which were favourable to his case and which were held by the Department.

113               I do not think he had a “clear belief” in the precise terms to which he deposed in his affidavits but, in my opinion, he did have a belief in general terms that the RRT had favourable documents including the Part B document.

114               The primary applicant had a migration agent acting for him when he received the letter of  4 August 1997.  He had a different migration agent, Mr Selliah, when he received the letter of 3 February 1999.  He contacted his first agent when he received the earlier letter and he contacted Mr Selliah when he received the later letter.

115               The primary applicant said in cross-examination that when those letters were explained to him, he thought he would have to take action to stay in Australia but, initially, he made no mention of his beliefs that the Part B document had been sent to the RRT.  However, when he was pressed, he did not resile from his evidence that he held a belief that the RRT would have “gone through all my papers”.  In my opinion, he was telling the truth when he gave that evidence as to his belief under cross-examination.

116               It seems to me that it is plain that the primary applicant was relying on his migration agent at the time and that the migration agent would, in each case, have explained the letter to him.  I do not think that when he told me that he knew he would have to take further action, this necessarily excluded a belief on his part that the Part B document was in the hands of the RRT.

117               The similarity between the evidence which the primary applicant gave in paragraph 29 of his affidavit of 28 October 2002 and the agreed facts in Muin was troubling.  Mr Selliah’s evidence under cross-examination as to the circumstances in which the affidavit was prepared was not convincing.  The primary applicant speaks little or no English.  He appeared to have little understanding of the proceedings.  In my view, it is plain that the primary applicant left it to Mr Selliah and/or his solicitors and barristers to prepare the affidavit.  I accept the primary applicant’s evidence that his advisers knew his position and he trusted them to prepare the affidavit for him in a language that he can neither read nor understand.

118               Accordingly, I have come to the view that the similarity between the affidavit evidence and the evidence in Muin should not result in an adverse credit finding against the primary applicant.

119               Finally, I accept that the primary applicant would have taken steps to the effect of most of the steps set out in paragraph 10 of his affidavit of 1 November 2002.

120               The Part B document was so obviously favourable to the primary applicant’s claim that, in my opinion, had he been aware that it was not physically before the RRT, he would have, through his migration agents, taken steps along the lines of those set out in paragraphs 10(a), (b) and (c) of his affidavit.

121               Thus, in my opinion, the primary applicant lost an opportunity to put before the RRT a document which might have influenced the decision maker to decide the application differently.  Certainly, I cannot be satisfied that the Part B document would have made no difference to the outcome of the proceeding.

122               The primary applicant lost the opportunity to put a case based on the Part B document because he was misled by the letters of 4 August 1997 and 3 February 1999 into thinking that favourable documents which were before the delegate would also be before the RRT and he relied to his detriment on this.

123               This is not a case in which it can be said that the primary applicant suffered no “practical injustice” by reason of the opportunity which he lost to put submissions before the RRT upon the basis of the favourable material in the Part B document; cf Lam at [37] per Gleeson CJ.

ORDERS

124               It follows in my opinion that the primary applicant is entitled to succeed on one aspect of the adverse documents case, namely CX12546.  He is also entitled to succeed on the favourable documents case.  I therefore propose to issue constitutional writs in accordance with the draft order nisi filed by the applicants.  I also propose to make an order extending time for the making of this application to the date on which it was filed.

Associate:

Dated:              19 June 2003