FEDERAL COURT OF AUSTRALIA

Applicant M189 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1218

APPLICANT M189 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

V348 OF 2003

EMMETT J

31 OCTOBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.         the application be dismissed;

2.         the applicant pay the first respondent’s 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 arrived in Australia on 19 March 1995 and, on 30 June 1997, he lodged an application for a protection (class AZ) visa under the Migration Act 1958 (Cth) (‘the Act’).  On 2 February 1999, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa and, on 26 February 1999, the applicant applied for a review of that decision by the second respondent, the Refugee Review Tribunal (‘the Tribunal’).  On 16 November 2000, the Tribunal affirmed the decision not to grant a protection visa.

2                     The applicant then applied to the Federal Court of Australia for review of the decision of the Tribunal under Pt 8 of the Act.  On 29 August 2001, Beaumont J ordered that the application be dismissed with costs: see Abeysinghe v Minister for Immigration and Multicultural Affairs [2001] FCA 1201.  The applicant then appealed to the Full Court of the Federal Court of Australia.  On 30 April 2002, a Full Court, constituted by Ryan, Carr and Conti JJ, ordered that the appeal be dismissed with costs: see Abeysinghe v Minister for Immigration and Multicultural Affairs [2002] FCA 511.  An application for leave to appeal to the High Court of Australia was dismissed on 11 November 2002.

3                     On the same day, 11 November 2002, the applicant commenced a proceeding in the High Court of Australia seeking a writ prohibiting the Minister from acting upon, giving effect to, or proceeding further upon the decision of the Tribunal.  The applicant also claimed writs of certiorari and mandamus in respect of the proceeding before the Tribunal.  On 7 February 2003, Hayne J ordered that the further proceedings in the application to the High Court be remitted to the Federal Court.

4                     The applicant seeks to impugn the decision of the Tribunal on the basis that the proceeding in the Tribunal involved a denial of procedural fairness in that, in the course of a hearing before the Tribunal, the Tribunal failed to advise the applicant of adverse conclusions at which it arrived that would not obviously be open on the known material.  The Minister contests that assertion and says that, even if the assertion were made out, the proceeding was commenced out of time and there should be no enlargement of time to permit the proceeding to be pursued.  The Minister also contends that the applicant is estopped from raising in this proceeding the contentions now relied on having regard to the determination of similar questions in the earlier proceeding in the Federal Court.  The Tribunal has, quite properly, played no part in the present proceeding.

THE TRIBUNAL’S DECISION

5                     The Tribunal found that the applicant is a 32 (now 34) year old Sinhalese man from Colombo.  He arrived in Australia on a passport issued in his own name on 18 January 1995 and applied for a protection visa the day before his temporary entry visa was due to expire.  In his application for a protection visa, the applicant claimed that, between 1992 and 1994, he met many Tamil students, one of whom he befriended and invited to live with him and his mother.  He claimed they discussed the separatist war and that he sympathised with the Tamil cause.  One day in October 1994, the Tamil friend was taken into custody by the security forces when he was stopped at a check point.  The applicant said that two days after that event his house was surrounded by security forces and the security personnel searched the house and all the family’s belongings.  He said that the security forces found some pamphlets connected to the LTTE guerrilla war. 

6                     The applicant claimed that the security forces then began to punch him in the head and to use abusive language.  He claimed that they assaulted his mother and then took him away for questioning.  He claimed that he was taken to a place in Colombo where he was systematically beaten with a rubber hose and kicked for about an hour.  He claimed that he was then held there for a week, being tortured each day while being questioned about his connections with the Tamil separatists.

7                     The applicant said that his mother finally succeeded in getting him released under certain conditions and then took him to Galle to recover and to receive medical treatment for his beatings.  The applicant claimed that, because of the constant threats he was receiving at that time, he decided to leave Sri Lanka and come to Australia.  He claimed that returning to Sri Lanka would cause a life threat to him.

8                     The Tribunal, in its reasons, recorded that the applicant reiterated the claims made in his original application.  He added that his Tamil friend came from Vavuniya and that he lived with the applicant for about two or three months from the middle of 1994.  He said he knew the first name of his friend but did not know his second name.  He claimed it was usual not to know a Tamil person’s second name.

9                     The Tribunal recorded that the applicant’s story was ‘a very simple one, of being associated with someone who was in the LTTE [Liberation Tigers of Tamil Eelam] and then being imputed with an LTTE profile himself’.  However, the Tribunal did not accept the applicant’s central claim, namely, that he had a Tamil friend who lived with him and who was arrested as a terrorist and disappeared.  The Tribunal observed that the applicant had presented no independent evidence to indicate that the friend existed, was detained by the authorities, was shown to have some connection with the LTTE or disappeared as a result of his arrest. 

10                  In the course of its reasons, the Tribunal referred to the applicant’s claims that his friend had been arrested at a checkpoint.  The applicant said that the security forces had come to see him two or three days later.  The Tribunal recorded the applicant’s claims at the hearing as follows:

‘The applicant found out about this through other friends the next day.  The friend had been arrested in the middle of the day.  He had started looking for his friend the next day.  On further questioning he said that he had found out that his friend had been detained from another friend of his the night of the incident, who was on the same bus as his Tamil friend when he was arrested.  When asked what he had done to locate his friend, he initially said nobody could do anything, and on further questioning said that he was angry because his friend might be involved in something, and he was a killer and a terrorist.’

11                  The Tribunal found that the applicant’s personal account of his claims in relation to the matter were not convincing.  The Tribunal made three findings in the course of explaining its reasons for concluding that the applicant’s account was not convincing as follows:

‘I did not accept that he would know so little about a person he said he had befriended for six months, and lived with for three months.  Further, he was inconsistent about when and how he came to know of his friend’s arrest, saying variously that he had heard from class the next day, and that he had heard from another friend the same night. … 

I find it implausible that if he believed his friend were an LTTE, he would leave his friend’s room in his house untouched until a few days later, when the security forces arrived and searched it and found incriminating pamphlets.’

12                  Since the Tribunal did not accept that the applicant came to the attention of the authorities through his friend, it did not accept that he was detained and tortured by the authorities as he claimed.  The Tribunal went on to make further observations about other claims made by the applicant that the Tribunal found unconvincing and implausible.  The Tribunal concluded that it was not satisfied that the applicant had ever been pursued by the authorities for reason of his imputed support of the LTTE nor that he had been pursued by the LTTE for reason of his real or imputed anti-LTTE views.  It found, therefore, that there is not a real chance that the applicant would be persecuted for either of those reasons, or for any other Convention reason, if he returned to Sri Lanka. 

THE APPLICANT’S CONTENTIONS

13                  The applicant contended that the Tribunal misconstrued or misunderstood his evidence at the hearing and that its failure to inform him of the way in which it understood his evidence and to give him the opportunity of refuting that understanding constituted a denial of procedural fairness.  The applicant referred first to the following exchanges between the Tribunal and the applicant:

Tribunal:           ‘So the Tamil friend was arrested – was it in the evening, or when did he disappear?  When did he leave your place?

Applicant:         ‘Oh, middle of the day.’

Tribunal:           ‘Okay.  And when did you start asking people about where he might be?’

Applicant:         ‘From next day, actually; from next day.’

Tribunal:           ‘Okay.’

Applicant:         ‘Because I went to classes next day and I ask:  What happened to that guy?  Most of people didn’t know what happened.’

…

Applicant:         ‘… I got the information that he arrested from one of my friends who was living close to my house.’

Tribunal:           ‘How did this friend know he was arrested?’

Applicant:         ‘Because he was in the same bus, it is coming from … Colombo to my home town, the bus.  So … what happened was he told me this what happened.’

Tribunal:           ‘When did he tell you that?’

Applicant:         ‘The same day.  Once he came home, he came to my place and he said … this what happened.  I saw this guy was arrested at a check point and – ’.

Tribunal:           ‘So he was arrested in the middle of the day?’

Applicant:         ‘Yes.’

Tribunal:           ‘Your friend came home; so did he tell you that night?’

Applicant:         ‘Yes.’

Tribunal:           ‘So he told you that night he was arrested?’

Applicant:         ‘Yes.  But he told me they didn’t find anything, just arrested.  They just searched the bus but they didn’t find anything from that guy, my friend.  They just arrested.  They asked for name and ID and they arrested.  That’s what he said to me.’

Tribunal:           ‘Well, if you know what had happened to him by that evening, why did you go and ask people at the college if they knew what happened to him, the next day?’

Applicant:         ‘Because next day I have classes anyway, so I thought if I go to classes I can meet some friends. … I have couple of good friends but I thought on next day I can search for him, you know, what happened, because I didn’t have any connections to his parents either, because he was from a different area of country, and that was why I thought stay next day and then – because I got information that night, anyway, and I was shocked, too, that, you know, I was pretty much angry, pretty shocked …’.

14                  The applicant contended that the alleged inconsistency about when and how he came to learn of his friend’s arrest was non-existent.  He contended that he had consistently claimed that he learned of the arrest that night from a friend who was living close by who was on the bus.  The applicant claimed that his evidence was that he asked his class mates the next day if they knew where the friend had been taken.  The applicant complains that he could not have expected that the Tribunal would fasten upon that alleged inconsistency to support the conclusion that it reached and that, had the Tribunal alerted the applicant to the alleged inconsistency and the importance that it placed upon it, he could have met the Tribunal’s concerns.

15                  Next, the applicant complains about the Tribunal’s reliance upon the applicant’s failure to disturb his alleged friend’s room prior to the search by the security forces.  He says that he had never asserted that he knew the true reason why his friend was detained or that he knew he was connected with the LTTE.  The reason given by the applicant for his assumption that his friend was connected with the LTTE was that 90 to 95 per cent of Tamils support the LTTE, so that if a Tamil is detained then it is a fair assumption that he may be connected to the LTTE.  The applicant contended that, since he was just forming his suspicion about his friend’s involvement with the LTTE, the failure to search his friend’s room on the basis of that suspicion was an adverse conclusion not obviously open on the known material.

16                  The third matter relied upon by the applicant is the weight given by the Tribunal to the applicant’s lack of knowledge about the alleged friend.  The applicant complains that at no stage did the Tribunal raise the issue of the depth of his knowledge of his friend other than to ask him why he did not know his friend’s surname.  The applicant gave an explanation as to that matter in the following terms:

Tribunal:           ‘What was this person’s name?’

Applicant:         ‘Shiffmala, he was my very good friend actually at that time, after that I never see or heard about him.’

Tribunal:           ‘Shiffmala, that was his last name?’

Applicant:         ‘That’s his first name.’

Tribunal:           ‘And what was his last name?’

Applicant:         ‘I do not know his last name.  We call him Shiffmala because he was in my class.’

Tribunal:           ‘How come you don’t know his last name?’

Applicant:         ‘Because the reason is Tamils they use – their father’s last name they use as first name and so there is a little bit of confusion for Tamil – for Tamil people, so I forgotten exactly what is his last name, so I just – he just – Shiffmala.’

17                  The applicant claims that each of the three matters described above was used by the Tribunal to draw adverse conclusions about the applicant’s claims.  However, he says, none of the matters was raised with the applicant for his comment.  The failure to do so was said to be a denial of procedural fairness.

reasoning

18                  There was no dispute as to the appropriate legal principles.  Where the exercise of a statutory power attracts the requirements for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests.  That entitlement extends to the right to rebut or qualify, by further information and comment on by way of submission adverse material from other sources put before the decision maker.  The decision maker is required to identify to the person affected any issue critical to the decision that is not apparent from its nature or the terms of the statute under which it is made.  Finally, the decision maker is also required to advise of any adverse conclusion that it has arrived at and that would not obviously be open on the known material: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 at [22].

19                  However, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.  That is to say, the Tribunal is not required to give an applicant particulars of its thought processes prior to the making of an adverse decision.  It is for the applicant to advance whatever evidence or argument he wishes to advance and it is for the Tribunal to decide whether his or her claim has been made out: Abebe v Commonwealth (1999) 197 CLR 510 at 576[187].

20                  It would be erroneous for the Tribunal to represent that a particular piece of evidence or argument had been accepted and then to reject it in the decision.  It would also be erroneous for the Tribunal to rely upon a particular conclusion about the material before it that was not open on the material.  However, the Tribunal is not obliged to adopt a particularly forceful style of questioning.  It is not obliged to be as forceful as a cross examiner might be in a criminal proceeding.  The Tribunal, in conducting an inquisitorial hearing, is not obliged to prompt and stimulate an elaboration that the applicant chooses not to embark on.  The Tribunal is not obliged to set out every detail of the reasoning process that is eventually employed for the consideration of an applicant: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [54] and [58].

21                  The applicant was aware that the basis of his claim being successful was for the Tribunal to accept his central claim that he had a Tamil friend who had disappeared in the circumstances described.  That was the critical issue that the Tribunal raised with the applicant for his comment.  It was fairly and squarely in issue.  It is clear that the Tribunal gave the applicant an opportunity to advance whatever evidence or arguments he wanted to in support of his claims in relation to the alleged Tamil friend. There was no obligation on the Tribunal to inform the applicant that it had concerns about the adequacy of his answers to questions. 

22                  In fact, the Tribunal explored the applicant’s knowledge of his friend, not only by asking what his friend’s surname was but by asking him questions about where his friend was from and whether he had registered him with the local police authorities.  The Tribunal raised with the applicant its doubts concerning his knowledge of his friends circumstances.  The questions fairly demonstrated that the Tribunal was interested in the extent of the applicant’s knowledge of his alleged friend.

23                  The conclusion that it was unlikely that the applicant would leave his friend’s room untouched after he had been arrested was open to the Tribunal on the material before it.  It was a factor taken into account by the Tribunal in concluding that the applicant’s claims should be rejected.  There was no requirement to invite comment on that matter. 

24                  The exchange between the Tribunal and the applicant as to the circumstances in which he came to know of his alleged friend’s arrest leaves open to the Tribunal the conclusion that the applicant’s evidence was inconsistent.  The applicant was asked to clarify his evidence as indicated and it could not be said that he was not aware that the Tribunal was concerned about the consistency of the evidence.

CONCLUSION

25                  I do not consider that there was a failure on the part of the Tribunal to put to the applicant any adverse conclusion that would not obviously be open on the known material.  The applicant’s complaint is more in the nature of a complaint about the failure of the Tribunal to expose mental processes or provisional views formed in the course of the hearing.  It is a complaint about failure to set out details of the reasoning process that ultimately led the Tribunal to its conclusion.  That was not a denial of procedural fairness on the part of the Tribunal.  Accordingly, the applicant’s claims are not made out.

26                  Accordingly, it is unnecessary to consider whether there should be any enlargement of the time for commencement of the proceeding.  Nor is it necessary to consider whether the applicant is estopped from advancing the arguments set out above in the light of the determination of the earlier proceeding in the Federal Court.

27                  It follows that the application should be dismissed with costs.

Associate:

Dated:              31 October 2003