FEDERAL COURT OF AUSTRALIA

Applicant M17 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1364

Federal Court Act 1976 (Cth) s 25(1A)

Migration Act 1958 (Cth) s 424A

Applicant VCAT of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCAFC 141 cited

Coulton v Holcombe (1986)162 CLR 1 cited

O’Brien v Komesaroff (1982) 150 CLR 310 cited

H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348 cited

Whisprun Pty Ltd v Dixon [2003] HCA 48 cited

Branir Pty Ltd v Owsten Nominees (No. 2) [2001] FCA 1833 cited

Abebe v Commonwealth (1999) 197 CLR 510 cited

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

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 considered

Luu v Renevier (1989) 91 ALR 39 cited

Azzi v Minister for Immigration & Multicultural Affairs (2002) 195 ALR 166 cited

APPLICANT M17 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 455 OF 2003

NORTH J

26 NOVEMBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of Federal Magistrate Hartnett given on 22 May 2003 in an application which was commenced in the High Court.  The application was remitted to the Federal Court, and then transferred to the Federal Magistrates Court.

2                     The application sought an order nisi for the issue of writs of certiorari, prohibition and mandamus, and the grant of an injunction, in respect of a decision of the Refugee Review Tribunal (the Tribunal) made on 16 January 2002.  The Tribunal affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse the appellant a protection visa.  Federal Magistrate Hartnett dismissed the application.

3                     The Chief Justice of the Federal Court directed, under s 25(1A) of the Federal Court Act 1976 (Cth), that this appeal be heard by a single judge. 

4                     The Tribunal conducted a hearing on 24 October 2001.  The appellant gave oral evidence at the hearing.  She also relied upon written submissions to the Tribunal dated 22 May 2000 and 14 September 2001.  Further, the Tribunal referred to a previous submission which accompanied the application for the protection visa.  On 30 October 2001, the Tribunal wrote to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (the Act) indicating that there were inconsistencies between the appellant’s oral evidence and her written submissions, and that those inconsistencies would provide reasons for refusing the application for a protection visa.  On 22 November 2001, the appellant, through her solicitors, provided a response to the Tribunal. 

5                     The appellant’s claims changed over the course of the proceeding before the Tribunal, however her claims at the hearing can be summarised as follows.  The appellant is a citizen of Sri Lanka of Sinhalese ethnicity.  She arrived in Australia on 19 February 2000.  Between 1994 and 2000 she worked as a clerk in a pharmaceutical company which imported drugs from overseas.  She commuted to work by train.  On the train to work she regularly met a woman called Padmi.  The appellant claimed that she became friendly with Padmi and, in due course, Padmi revealed that she was a member of the LTTE.  Padmi asked the appellant for details of the way in which to bring medicine into Sri Lanka from abroad by using the company in which the appellant was employed.  The appellant gave the information to Padmi.  Then, the appellant claimed, in April 1999 Padmi disappeared.  The appellant believes that Padmi was abducted by the Sri Lankan authorities. 

6                     The appellant claimed that she would be killed if she returned to Sri Lanka.  She said that men from the security forces came looking for her after she left Sri Lanka because the government suspects that she helped the LTTE.   She also claimed that she feared the government because she joined the JVP as a student in 1991, and that the government takes revenge against its opponents.  She further claimed that she fears the LTTE because she believes the LTTE thinks that she supplied information to the government and that the government then killed Padmi. 

the Tribunal’s decision

7                     The reasoning of the Tribunal is comprehensive and detailed, the entire decision occupying forty-four pages.  The Tribunal commenced by dealing with the s 424A letter and the appellant’s responses to the concerns raised in the letter.  In the course of this process, the Tribunal made findings of fact by reference to all the material before it.  The Tribunal then dealt with a number of documents tendered by the appellant in support of her application.  Towards the end of this discussion the Tribunal drew together its conclusions in the following passage:

‘The Tribunal accepts that any late claim or late lodged evidence is to be assessed on its own merits.  The Tribunal has considered the claims and evidence supplied later in relation to the applicant’s original claims, and has not accepted the applicant’s comments made in response to the Tribunal’s letter as indicated above and for the above reasons therein set out. 

For all the above reasons the Tribunal finds that the applicant has been prepared at all times to enlarge, alter or extend her claims to meet the circumstances as they arose.  This is explained in the discussion and findings above but the Tribunal mentions some examples here …’

8                     A number of examples were given which need not be set out in these reasons.  The Tribunal continued with a finding relevant to this appeal.  It said at 37:

‘Another such extension and variation was made by the applicant during her oral evidence.  When asked how she knew Padmi was killed by the government, she said because she was seen being taken away by the CID.  When the Tribunal did not accept that this meant that the applicant had been killed by the government, the applicant then added a new claim that the security service people had sent her letters saying that Padmi may not be living and that she has these letters.  In addition to the fact that the applicant had not produced these letters and had never made such a claim previously, the Tribunal finds that it is not credible that the security service people would write to the applicant in such terms.’

And concluded at 37:

‘The Tribunal finds that for all the above reason [sic] the applicant is not credible.  For all the above reasons the Tribunal finds that the applicant is not a witness of truth.’

9                     The Tribunal then summarised its reasoning, at 38, as follows:

‘The Tribunal has not accepted the claims regarding Padmi.  It finds that the claims regarding Padmi are fanciful and contrived.  It does not accept that a LTTE spy would break cover and reveal to any one her job.  The situation in Sri Lanka between the opposing forces of the LTTE rebels and the government with the bitter fighting, retribution and sabotage by bombing is such that a LTTE spy revealing herself would face death from not only the government but also from the LTTE itself, in the latter case because her unreliability could jeopardise the LTTE network.  Some of the undated news cuttings lodged by the applicant refer to this ongoing campaign between the LTTE and government forces, although they do not appear to refer to any area in which the applicant lived.  For all the above reasons the Tribunal does not accept that a woman named Padmi told the applicant that she was a LTTE spy.

The applicant has explained her alleged acceptance of Padmi’s information and agreement to supply her with information by claiming to have favourable views because she had belonged firstly to Youth Socialist, but then to the JVD [sic].  The Tribunal has not accepted that the applicant belonged to these organisations.  As the Tribunal has not accepted these claims it does not accept that even if a LTTE spy had revealed her identity that the applicant would have taken a favourable view of such activity for the reason claimed.  The Tribunal does not accept that the applicant revealed the business methods of her employer to a LTTE spy.  The Tribunal has found that the applicant did not go into hiding and has found that she continued in her usual employment until she left the country.  In addition, despite the applicant’s claims, she remained in Sri Lanka without incident for approximately 10 months after the alleged disappearance of Padmi.  The applicant left Sri Lanka legally and on her own passport, and given the checks in place for the issue of passports and given the tight exit procedures in place (see below), the Tribunal is satisfied that her ability to so leave indicates that she is of no interest to the government.

The following information advises that anyone sought by the government would be unable to leave Sri Lanka.’

10                  After setting out that information, the Tribunal continued at 39:

‘The Tribunal finds that if the applicant had a profile as alleged by her, (an active member of the JVP in the past and a person who had assisted a LTTE spy) it would be highly implausible for her to be able [to] circumvent the issuance of her passport and to legally depart from Sri Lanka.  The Tribunal has not accepted the applicant’s explanation that the authorities only became interested in her 2 days after she left Sri Lanka (see below).

The applicant has attempted to explain her alleged fear to return by making new claims.  She claimed that the government became interested in her a couple of days after she left the country.  Even if the Tribunal accepted the applicant’s claim of her friendship with, and assistance to, a LTTE spy, which the Tribunal has not done, it is not credible that the security force would not follow up any leads expeditiously in what amounts to a terrorist war situation between the government and the LTTE, but wait for over 10 months to do so.  She has also claimed that the LTTE has become interested in her since she left he country because it believes she betrayed Padmi to the security forces.  As the Tribunal has not accepted the claims regarding Padmi, it does not accept that the applicant is of adverse interest to the LTTE.

As the Tribunal has not accepted the applicant’s claims, the Tribunal does not accept that 2 men from the security forces have made threats against the applicant or that they or other individuals are seeking revenge against her.  The Tribunal has found for a number of reasons above that it does not accept the documents lodged by the applicant which refer to these claims of threats and revenge.’

11                  The Tribunal then referred to country information concerning the practice of the security forces stopping and questioning people thought to support the LTTE.  It concluded at 41:

‘Although the Tribunal has not accepted that the applicant was stopped and questioned by 2 members of the security service, the Tribunal finds that even if she had been stopped and questioned briefly as claimed, as she also claimed that she was allowed to leave after 15 minutes after identifying herself and answering some mild questions, the Tribunal concludes on the basis of country information quoted above that a person so treated would be of no interest whatsoever to the authorities.  Again, as the applicant was able to leave the country legally on her own passport this reinforces the finding that she was of no interest to the authorities.’

12                  The Tribunal then referred to further country information relating to the profile of persons suspected of being LTTE supporters, and said at 42:

‘Given the country information above the Tribunal does not accept that the applicant would be suspected of supporting the LTTE.  The Tribunal finds that the applicant does not fit the profile of an LTTE sympathiser.  It is not plausible that she would be mistreated by the authorities because of her alleged Tamil woman friend.  The applicant does not speak Tamil.  It is implausible that she would be suspected of LTTE sympathies when she has no Tamil language skills.  Many thousands of Tamils and those of mixed Tamil and Sinhalese parentage live in Colombo and its environs (CX34175 quoted above states that half of the population of Colombo is Tamil).  Many Tamils would travel by train to Colombo to reach their employment.  And doubtless many such commuters would talk to their friends about the work they perform and be overheard by their fellow commuters.’

13                  Within an understanding of the context of the overall conclusions reached by the Tribunal, it is now necessary to return to the claims concerning Padmi, which were dealt with in the Tribunal’s detailed analysis of the applicant’s claims undertaken by reference to the s 424A letter and the appellant’s responses as follows: 

‘The applicant was referred to her claims about Padmi and to the further claims made in relation to her and not made previously.

            “3.       Applicant’s claim about Padmi

It is correct that in my first submission I stated that Padmi disappeared and was never seen again.  And that many rumours were spread around by my train friends who were suggesting that she has been abducted and maybe killed by the Sri Lankan authorities.  It is also correct that for the first I stated in my 3d submission lodged 14 September 2001, that I received information from a friend that hundreds of commuters saw Padmi taken by unidentified people.  I would also like to confirm that at the hearing I said that my train friends told me that Padmi was picked up at the station by the CID and taken away.  Again, I do not see any contradiction to these claims and/or statements.  My claims in my first submission were based on the information I had with me before a [sic] fled Sri Lanka.  The subsequent claims in my 3rd submission and at the hearing regarding Padmi’s disappearance were based on additional letters and telephone calls from friends.  However, I believe that some of my statements at the hearing were taken out of context.  For example, my statement that some people who travel on the train would have said that Padmi had a connection with the LTTE.  This statement was just my opinion as to what might have happened to Padmi.  It was not meant to be taken as one of the pillars in my claim as carved out in the letter.”

The Tribunal has difficulty with these explanations of the applicant as to how and why her later statements varied from that in her PV submission.  The applicant left Sri Lanka almost a year after Padmi’s alleged disappearance.  She had undertaken her preparations to leave Sri Lanka several months before she was granted a visitor visa, and on her own evidence had also prepared her application for a protection visa before she left home.  She did not suddenly flee from her country.  Those fellow train travellers who had seen Padmi allegedly picked up at the station in April 1999 would have had ample time to tell their stories to the applicant before she left Sri Lanka on 19 February 2000.  The Tribunal finds that the new versions of the alleged disappearance of Padmi were prompted by the rejection of the applicant’s application and claims by the delegate.  The Tribunal put to the applicant that it had difficulty with the version of events concerning Padmi’s disappearance as put to it by her at the hearing.  It also put to the applicant that picking Padmi up while travelling seemed an illogical strategy when the security forces had the more reliable option of picking her up at home or at work.  In addition, in her original PV application the applicant had never claimed to go into hiding, and she had always continued working until she left Sri Lanka.  This means that she would have continuing contact with her fellow train travellers throughout the period whether travelling or at work or at home to find out what allegedly happened to Padmi.  In that application she claimed she had become concerned later after Padmi’s alleged disappearance when the Sri Lankan Security did a big investigation into the [sic] her employer’s dealings.  It was then that she allegedly asked her sister to invite her to Australia.  However she continued in her employment until she came to Australia.

After the Tribunal put to the applicant that it had a problem with the applicant’s story as to why Padmi was allegedly picked up in the manner claimed by her, the applicant then gave an alternative explanation as to why Padmi was picked up while travelling.  In summary, she claimed that the CID would have been informed by a train traveller that Padmi was a suspect train bomber, and her explanation of this claim was that people suspected Tamils.  The Tribunal put to the applicant its problem with this explanation; on the applicant’s own evidence Padmi would not be taken to be a Tamil.  The Tribunal rejects this new explanation in the comments supplied by the legal adviser that the applicant’s comments were taken out of context.’

14                  Finally, it is necessary to return to the Tribunal’s detailed consideration of the question whether the security forces were searching for the appellant after she left Sri Lanka.  This involved an examination of the evidence submitted by the appellant as follows: 

‘The applicant lodged a number of documents with the Tribunal which were translations.  In all but one instance, the original documents were not provided when the documents were lodged.  The applicant lodged original untranslated documents at the hearing but they were not marked or identified as being the originals of these translations.  The letters are claimed to be from the applicant’s sister Shirani, dated 16 April 2000, a friend Shyamalee, dated 2 March 2001, and an anonymous friend, dated 28 April 2000.  Also lodged is a translated extract from the information book, police station, Gampaha.  All translations were made on 30 August 2001.  Also lodged is an affidavit made by the applicant’s father on 25 April 2000. 

The applicant claimed that these letters were provided late as they had been provided to her previous adviser who had not provided them to the Tribunal.  However as several documents bear recent dates, namely 2 March 2001 and 30 August 2001, it is not clear that they were provided to the previous adviser much earlier than when they were lodged with the Tribunal.

The applicant stated that her father’s affidavit is a translated document but as pointed out to the applicant it is made in the English language and is not a translation.  The applicant was unable to recall the claims made by her father and needed to be prompted by the Tribunal.  Even then she could not recall them all.  This document provides claims not all of which were made elsewhere.  It states that the applicant “was compelled to leave this country on a visit visa and there was several threats on her life”.  The applicant had not claimed that she left because of threats on her life.  “Some of the threats are on because of the current ethnic issues in Sri Lanka.”  “The rebels are attempting to kill her for reasons best known to them.”  He was unaware of their motive and made complaints to Gampaha Police station.  The applicant had not claimed that she left the country because the rebels (the LTTE) were attempting to kill her.  Apart from the fact that these claims differed from the applicant’s own claimed reasons for leaving the country, the claims are vague, general and lacking in detail.  For all the above reasons the Tribunal is unable to place any weight on this document.  If finds also that the claims made therein are not plausible.

The applicant had continued to claim that she had not told her parents of her problems because they are old and sick.  The Tribunal queried that claim in relation to the 2 documents lodged from her father.  She then said that when these people called at her home she told her father of her problems.  She had claimed that Padmi called at her home to take her out, that is, Padmi was allegedly known to her parents, so that the affidavit of her father is in this sense disingenuous. 

The Tribunal also notes that the father’s affidavit is dated 25 April 2000 but it was in submission 3 of 14 September 2001 when the applicant herself first claimed that the LTTE were suspicious of her.

The applicant lodged a hand written Extract from a police station information book together with translation, which is certified to be true copy.  The complaint to the police station dated 29 March 2000 and headed “For Future Reference” appears to contain several errors.  The applicant has pointed out that the names of herself and her sister are wrong.  The Tribunal notes that the date given for when she left for Australia (19.04.2000) is wrong.  All the information about “2 unknown people” is vague.  No date is given for their first visit when they allegedly made inquiries as friends for the applicant but the date of their second visit, (28.02.2000), is given.  They said they were from the security forces and they needed the applicant’s evidence for an inquiry.  This report is on record for future reference, as he fears they may harm his daughter.  The Tribunal noted that the record is singularly unhelpful to any future police inquiries.  There is no description of the 2 people to enable them to be identified.  On both occasions the father failed to note the number of their motor bike.  The report was made a month after the alleged second visit which would also retard any investigation or identification.  The Tribunal concludes for the above reasons that this is not a genuine report but is contrived and was made to assist the applicant’s claims.  The Tribunal does not accept that because a document is certified to be a true copy, that the content of the original document is genuine or truthful.  For these reasons the Tribunal places no weight on this document.

In reference to the above documents the Tribunal refers to the following country information.

The ease of obtaining fraudulent documents is supported by the information in the following Report (DFAT Report 118 Sri Lanka: Refugee Review Tribunal Information Request: LKA22327 3 October 2000):

“Document fraud is widely and well practised in Sri Lanka …Corruption and malfeasance is present in Sri Lankan officialdom and the legal profession.”

Each of the letters lodged by her warns the applicant not to return to Sri Lanka.  The anonymous one from a “train travel mate” warns her not to return because the CID was rumoured to be after the applicant 2 weeks after she left the country because the applicant was in contact with a Tamil girl supplying medicine to the LTTE.  It warns her that the Tamil girl has now been apprehended; however the applicant herself said this occurred in April 1999, yet this belated warning is dated 2 months after the applicant left Sri Lanka.  Apart from the fact that this warning is belated and contrived the Tribunal finding [sic] it does not place weight on this document because it is unsigned.  Her sister’s letter warns her that 2 weeks after she left 2 people inquired for her and left saying the would settle things later.  However this letter was dated 9 weeks after the applicant left Sri Lanka so her sister has not felt that this alleged incident required an urgent warning.  Once again the description of the 2 persons is vague.  The letter of Shyamalee of 2 March 2001 repeats the information in other documents.  It reminds her that 2 people called at her home “seeking revenge” in February 2000, and that her father lodged a complaint at the police station.  Each letter is brief.  The Tribunal finds further that for all the above reasons in relation to each letter that it is unable to put any weight on these letters which it finds are self-serving and contrived to assist and enhance the applicant’s claims following the rejection of her claims by the delegate.  It finds that the above documents are unreliable.

In addition as several of these document were lodged without originals and as some untranslated original document were later lodged without identification by the translator, the Tribunal was unable to match the translations with their alleged originals with any certainty.

In addition to the information concerning the high incidence of document fraud above, the Tribunal notes the information from DIMA in Country Information Report 11 June 1997:

“We have been asked recently by individual ORP officers about the incidence of fraudulent documents in Sri Lanka.  It should be noted that fraudulent official documents can be obtained with ease.”  (CX22851)

And,

In Country Information Report 72/99 of 11 March 1999 DFAT advised as follows:

“AS A GENERAL COMMENT, THE DEPARTMENT IS AWARE FROM PAST DISCUSSIONS WITH POLITICAL CONTACT THAT POLITICIANS AND OTHER PROMINENT SRI LANKANS ARE FREQUENTLY ASKED AND AGREE TO PUT THEIR NAMES TO LETTERS WRITTEN BY OTHER PEOPLE, EVEN WHERE THEY HAVE NO DIRECT KNOWLEDGE OF THE MATTERS DESCRIBED IN THE LETTERS.”  (CX34305)

proceedings before the federal magistrate

15                  This is yet another example of an appeal which has taken the course criticised by the Full Court in Applicant VCAT of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCAFC 141.  The appellant was legally represented in the proceedings commenced in the High Court, and in the hearing before the Federal Magistrate.  The grounds set out in the application to the High Court were not pursued before the Federal Magistrate.  New grounds were argued before the Federal Magistrate.  The grounds sought to be argued before this Court are also new grounds which were not raised before the Federal Magistrate.  Hence, the proceedings before the Federal Magistrate were no more than ‘a preliminary skirmish’:  Coulton v Holcombe (1986)162 CLR 1, 7.  Accordingly, it is unnecessary to make further reference to the proceedings before the Federal Magistrate.

THe appeal

16                  The appellant sought and was granted a number of extensions of time with which to comply with directions requiring her to file particulars of the grounds of appeal and an outline of argument, on the ground that she wished to instruct lawyers for the purpose, but did not at the time have the means to do so.  In the end, amended grounds of appeal were filed, and they were accompanied by an outline of argument signed by counsel which addressed those grounds.  The appeal came on for hearing on 29 October 2003, but was adjourned.  I will return to the circumstances of the extensions of time and adjournments shortly.

17                  On 21 November 2003 the appeal again came on for hearing.  The appellant was unrepresented but was provided with the services of a Sinhalese interpreter.  She relied on the amended grounds of appeal and the outline of argument.  She also made a number of oral submissions.  She said, in summary, that:

(a)                  She recalled what happened in Sri Lanka and said that she would be murdered if she returned.

(b)         Two people had recently come to her house looking for her.

(c)         Her parents were sick and could not protect her.  If she was murdered they would die of sorrow. 

(d)         Her parents were also threatened because of her.

(e)         She could not understand the decision of the Tribunal because it was in English.

(f)          She needs a lawyer to represent her, but has no job and no money.  Consequently, she sought a further adjournment to find a lawyer.

18                  The issues raised in pars (a) and (b) seek to controvert the fact findings made by the Tribunal.  They do not give rise to any errors of law which would attract the jurisdiction of the Court. 

19                  The issues raised in pars (c) and (d) are humanitarian considerations that do not relate to any matter which the Court can consider in this appeal. 

20                  As to the matter raised in par (e), the appellant has had ample opportunity to take steps to have the decision explained to her.  She was represented by solicitors and counsel following the Tribunal’s decision for the purpose of mounting the High Court challenge. 

21                  Finally, the adjournment sought referred to in par (f) was refused on the ground that the appellant has been given a reasonable opportunity to obtain representation.  On 20 June 2003, the parties agreed to orders for the timetable of the procedural steps to be taken in preparation of the appeal for hearing. The date agreed for the filing of the appellant’s submissions was 29 August 2003, allowing her more than two months in which to prepare. On 3 July the appellant came before the Court to seek pro bono legal assistance. This application was refused, but the appellant assured the Court that she would be able to find her own legal assistance and file her submissions by the due date. On 22 August, however, the appellant returned to the Court and again applied for pro bono legal assistance. This application was again refused, but the appellant was granted an extension of time of one month, until 30 September 2003, to file her submissions on the basis that she would obtain legal assistance in that time.  Her submissions were received, and in due course the appeal was listed for hearing on 29 October 2003. On this day, the appellant claimed that she had not been able to meet with a lawyer, but had arranged an appointment in the next few days. The hearing of the appeal was adjourned until 21 November 2003 for the appellant to seek legal advice.

22                  At the hearing on 21 November, a further short adjournment until 26 November 2003 was granted.  Counsel for the respondent referred to the written outline of submissions when he commenced his oral submissions.  The Court enquired of the appellant whether she had received a copy of this outline.  She said that she had not.  The respondent produced a copy letter to the appellant purportedly enclosing the submission.  The letter was correctly addressed.  Nevertheless, in order to prevent any possibility of prejudice to the appellant she was given a short time to seek advice as to any reply she might wish to make to the written submissions of the respondent. 

23                  Today, 26 November 2003, the appellant again sought an adjournment to allow her to obtain legal representation.  She said she had made an appointment with Legal Aid for Friday 28 November 2003.  In light of the previous opportunities to obtain legal representation, the application for further time was refused.

24                  It is now necessary to consider the amended grounds of appeal.  They read as follows: 

‘The Tribunal’s failure to exercise its powers of inquiry relevant to the contentions of the Applicant particularised below, amounted to an error of law in that it was, unfair, a breach of the rules of natural justice, provided for a reasonable apprehension of bias, and as such, amounted to jurisdictional error. 

                                    PARTICULARS

a)  Though the Applicant said she had told her migration agent that she had been a member of the JVP, and was then advised by the agent to say she belonged to the ‘Youth Socialists’ because Australians did not know about the JVP, there was no attempt to contact the agent or reason given for not doing so;

b)  Though the Applicant said she had formed a friendly association whilst sharing a train to work with a woman named Padmi, who claimed to be a spy for the anti government organisation LTTE, and that this woman disappeared after being removed from the train in April 1999, there was no attempt made to verify whether a woman called Padmi had been removed from a train in April 1999, and if so, whether charged with being a member of LTTE, and no reasons given for not doing so;

c)  Though the Applicant claimed that because of her former membership with JVP, and friendship with Padmi, she had heard that a few days after she left Sri Lanka security forces were looking for her, there was no attempt to verify this information and no reason given for not doing so.’

25                  As these grounds were not taken before the Federal Magistrate, the appellant requires leave to raise them now.  Such leave will be granted if it is expedient in the interests of justice:  O’Brien v Komesaroff (1982) 150 CLR 310 per Mason J;  H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348, per Branson and Katz JJ at par 6;  Whisprun Pty Ltd v Dixon [2003] HCA 48;  Branir Pty Ltd v Owsten Nominees (No. 2) [2001] FCA 1833 at par 38.  A central consideration in the assessment of the interests of justice is a determination of the question whether the arguments now sought to be relied upon have a reasonable prospect of success.  I turn to that issue.

26                  In each instance, the particulars of the amended grounds of appeal assert a failure of the Tribunal to make its own inquiries to verify the appellant’s case.  They assert that the Tribunal should have inquired into whether Padmi was removed from the train and charged with being a member of the LTTE, whether the appellant’s migration agent was told by the appellant that she had been a member of the JVP, and whether the security forces were looking for the appellant after she left Sri Lanka.  The outline of submissions explained the argument as follows:

‘The Appellant made three major contentions relevant to her claim that she had a well-founded fear of being persecuted if she returned to Sri Lanka, and as such, was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  These are particularised in the Notice of Amendments.  In each instance, the issue which is the subject of this appeal is that the decision maker failed to make any inquiry to test the Appellant’s contentions, or give any reason for not making inquiry, relying solely on a subjective assessment as to the Appellant’s credibility.’

27                  The first observation to be made about this submission is that it is quite wrong to say that the Tribunal relied solely on a subjective assessment of the appellant’s credibility.  The description of the Tribunal’s reasoning set out earlier in these reasons demonstrates that the Tribunal relied upon both an assessment of the probabilities of the circumstances put forward by the appellant and country information, as well as on an assessment of the appellant’s credibility.  Of course, the Tribunal had no option but to consider the credibility of the appellant in the course of determining her application.  The Tribunal’s decision under consideration in this appeal stands in stark contrast to those decisions of the Tribunal that rely solely on the assessment of the claimant’s credit. 

28                  The appellant put forward evidence of her dealings with Padmi, her instructions to her migration agent concerning membership of the JVP, and of the people seeking her out in Sri Lanka.  It was open to the appellant to bring forward further evidence if she desired.  It was her application and the Tribunal had no obligation to make her case for her:  Abebe v Commonwealth (1999) 197 CLR 510, per Gummow and Hayne JJ at 576;  Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277, per French J at par 29.  The application of this approach can be seen particularly in relation to the alleged obligation of the Tribunal to make inquiries from the appellant’s migration agent.  It was open to the appellant to bring forward evidence from the migration agent herself. 

29                  The failure of the Tribunal to make its own inquiries, for instance by use of its power under s 427(1)(d) of the Migration Act, will rarely amount to legal error:  Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155;  Luu v Renevier (1989) 91 ALR 39;  Azzi v Minister for Immigration & Multicultural Affairs (2002) 195 ALR 166. 

30                  In Prasad, Wilcox J held that a Tribunal may fall into legal error if it fails to make inquiries where it is obvious that material, which was centrally relevant to the decision, was readily available.  In the present appeal it cannot be said that evidence of Padmi being charged, or of the security forces searching for the appellant was readily available.  But, in any event, in relation to Padmi it would not avail the appellant if the Tribunal had made inquires and found that Padmi had been charged with being a member of the LTTE, because the Tribunal based its decision on a number of alternative bases, which included an acceptance of the appellant’s version that she gave assistance to Padmi.  For instance, the Tribunal said:

‘Even if the Tribunal accepted the applicant’s claim of her friendship with, and assistance to, a LTTE spy, which the Tribunal has not done, it is not credible that the security force would not follow up any leads expeditiously in what amounts to a terrorist war situation between the government and the LTTE, but wait for over 10 months to do so.’

31                  In relation to the allegations that the security forces were seeking the appellant after she left Sri Lanka, the Tribunal carefully assessed the documentary evidence in the passage set out in par 14 of these reasons.  The conclusions which it drew did not obviously call for any further inquiry, even if there was a readily available means for such inquiry. 

conclusion

32                  The appeal is thus bound to fail.  Leave to rely on the new argument is refused.  The appeal is dismissed with costs.

Associate:

Dated:              26 November 2003