FEDERAL COURT OF AUSTRALIA

Applicant M31 of 2002 v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCA 533

MIGRATION – application for protection visa – appeal from decision of Federal Magistrate – whether Refugee Review Tribunal considered all elements or integers of appellant’s claim – whether location at which passport found integer of appellant’s claim or merely “piece of evidence” relied upon

Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] applied

SDAO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 132 referred to

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] applied

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [46]-[47] applied

APPLICANT M31 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V458 of 2003

WEINBERG J

29 APRIL 2004

MELBOURNE

THE COURT ORDERS THAT:

1.             The appeal be dismissed.

2.             The appellant pay the respondent’s 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 who, on 22 May 2003, dismissed an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 8 February 2002.  The Tribunal affirmed a decision of a delegate of the respondent Minister refusing the appellant a protection visa. 

2                     There is, in substance, only one ground of appeal.  It is submitted that the learned Federal Magistrate erred in failing to hold that the Tribunal had not considered “an element or integer” of one of the central claims made by the appellant.  The Tribunal identified that claim in the following terms:

“The applicant believes that the Sri Lankan authorities suspect that he knowingly allowed the LTTE to use his original passport, and that they will therefore mistreat him.”

3                     In substance, the appellant maintained that he was of interest to the Sri Lankan authorities because his passport, which had been stolen in November 1998, after his arrival in Australia, had been found at an LTTE camp in Sri Lanka.  He claimed that he would be suspected of having been at that camp, and that by reason of that fact, he would be questioned by the police.  He further claimed that he feared “persecution” during the course of such questioning.

4                     The background facts may be stated briefly.  The appellant is a Sri Lankan Muslim from Kandy, in the Central Province.  He is now aged 32.  He came to Australia on a student visa on 27 October 1997.  His student visa was cancelled because he did not comply with the terms of that visa.  On 5 July 1999, he lodged an application for a protection visa.  On 13 January 2000, a delegate of the respondent Minister found that he did not meet the requirements of the Refugees’ Convention.  On 14 February 2000, the appellant applied for review of that decision and, as previously noted, on 8 February 2002, that application was dismissed.  The appellant then sought judicial review of that decision in the High Court.  That application was remitted to this Court, and then transferred to the Federal Magistrates Court.  It is the decision of that Court that is now the subject of this appeal.

5                     In substance, the appellant claimed before the Tribunal that he feared persecution by the Sri Lankan authorities for political reasons.  He said that he believed that the authorities suspected him of supporting the LTTE.  He based that claim upon the fact that his Sri Lankan passport, which went missing on about 5 November 1998, ultimately ended up in the possession of the LTTE. 

6                     The circumstances in which the passport was lost are somewhat unclear.  The appellant took the passport with him to Vic Roads in order to provide confirmation of his identity.  He discovered that it had gone missing when he returned home later that day, and he reported its loss to the local police, three days later, on 8 November 1998. 

7                     In mid-November 1998, the appellant applied for a new passport.  He claimed that in about June 1999, he learned that he was in trouble with the Sri Lankan authorities.  It transpired that his original passport had turned up in a raid on a suspected terrorist hide out in the Kalmunai area. 

8                     The appellant maintained that he had not left Australia since his arrival in 1997.  He said that he had never been involved in LTTE activities.  However, according to international movement records maintained by the Department of Immigration, someone had left Australia on 9 November 1998 using his original passport.  Moreover, the passport had been used again on 29 March 1999 when a person sought to enter this country.  That person was refused entry. 

the tribunal’s reasons

9                     The Tribunal accepted that the appellant’s passport had gone missing some time between 5 November 1998 and 8 November 1998.  It referred to a police report dated 8 November 1998, and a notation on the appellant’s new passport to the effect that his original passport had been lost in support of that conclusion.  It also accepted that the appellant had not left Australia at any time since his arrival in this country in 1997.  It accepted that an unknown person had used the original passport to leave Australia on 9 November 1998, and that an unsuccessful attempt had been made to enter Australia using the passport on 29 March 1999. 

10                  Importantly, the Tribunal also accepted that the LTTE had gained possession of the passport, and that it had made use of it. 

11                  However, the Tribunal found, on the basis of the country information before it, that the appellant did not meet the typical profile of a person suspected by the Sri Lankan security forces of supporting the LTTE.  He was not a “young Tamil from the north or east”.  Indeed, he was not of Tamil ethnicity at all.  He spoke Sinhalese, and neither he nor any of his relatives had ever been connected in any way with the LTTE.  In addition, he had no police record in Sri Lanka. 

12                  The Tribunal also considered it reasonable to expect that the Sri Lankan authorities would be aware that the passports of many innocent people are misused by the LTTE and by other groups.  It considered it reasonable to expect that those authorities would question people whose passports had been lost or stolen as a “routine” part of their investigations. 

13                  The Tribunal concluded that the appellant’s fear that he would be persecuted by reason of an imputed political opinion was “far fetched and implausible”.  It attached “little weight” to evidence led on the appellant’s behalf in support of that contention, and specifically rejected the evidence of one witness who claimed that, in 1999, the security forces had detained the appellant’s father and brother in order to question them about him.  It therefore found that he did not have a well-founded fear of persecution for any Convention based reason. 

the federal magistrate’s judgment

14                  In an ex tempore judgment, the Federal Magistrate accepted that the Tribunal had been required to consider all of the elements or integers of the appellant’s claim or claims.  It referred to Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 per Allsop J at [79]; and SDAO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 132.  In substance, her Honour concluded that the Tribunal had discharged that task satisfactorily. 

15                  Her Honour observed that the Tribunal’s reasons suggested that it was satisfied that the appellant would readily be able to establish his innocence of any involvement with the LTTE by reason of his passport having come into that organisation’s possession.  The Tribunal specifically found that the appellant did not fit the profile of an LTTE supporter, that his relatives in Sri Lanka could vouch for his activities in Australia, that the country information indicated that the LTTE often misused the passports of innocent persons, and that the authorities would accept his explanation for the delay in contacting them regarding the loss of his passport.  In addition, the appellant could easily establish that he had resided continuously in Australia from the time that he first came here. 

16                  The Federal Magistrate noted that the appellant’s claim was, in substance, that the Tribunal had failed to deal with his contention that the use of the passport and, in particular, its having been found at the camp at Kalmunai, would lead to a belief on the part of the Sri Lankan authorities that he was an LTTE supporter.  Her Honour also noted the appellant’s claim that he would eventually be questioned about the loss of his passport, and his belief that he was likely to be mistreated during such questioning.

17                  Her Honour rejected the submission that the Tribunal had erred by failing to deal with an integer of the appellant’s claim.  She found that the Tribunal had “clearly dealt with” the appellant’s claim, which was based essentially upon the fact that the LTTE had been found in possession of his passport, and that it had made illegal use of it.  She concluded that the Tribunal had considered the impact that this fact would have upon the appellant, and that it had determined that he would easily be able to persuade the authorities that he was “innocent” of any wrongdoing.  It was not for the Court to review the merits of any of those findings. 

18                  Her Honour also concluded that it had been open, on the evidence, and particularly on the basis of the country information, for the Tribunal to find that if the appellant were questioned, any such questioning would be “routine”.  Moreover, any harm that the appellant might suffer during such questioning would be the product of general police misconduct and would not fall within any of the recognised Convention grounds.  Accordingly, the appeal was dismissed. 

the proceeding before this court

19                  The only point raised by Mr Kissane, on behalf of the appellant, was his submission that although the Tribunal had accepted that the appellant’s passport had been used by the LTTE, and that he would be questioned about this, it had not dealt with the fact that the passport had been found at an LTTE camp.  That was said to be a matter of significance, and to amount to an integer of the appellant’s claim. 

20                  It has long been recognised, in public law, that a constructive failure to exercise jurisdiction can amount to jurisdictional error.  In Paul v Minister for Immigration and Multicultural Affairs, Allsop J discussed the concept of an “integer” in connection with an alleged failure to deal with all aspects of a claim.  His Honour said at [79]:

“Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction (as to which issue see generally and not exhaustively, Minister for Immigration and Multicultural Affairs v X[2001] FCA 858; Minister for Immigration and Multicultural Affairs v Tedella[2001] FCA 832; Khan v Minister for Immigration and Multicultural Affairs[2001] FCA 736; Chhour v Minister for Immigration and Multicultural Affairs[2001] FCA 911; Iyer v Minister for Immigration and Multicultural Affairs(2001) 64 ALD 9 and Thirukkumar v Minister for Immigration and Multicultural Affairs[2001] FCA 864) they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed.  It may be that if the element of the appellant's claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with.  In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed.  However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim.”

21                  Several months later, in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, Allsop J clarified the distinction between a failure to consider an element or integer of a claim, and an errant finding of fact.  His Honour said at [42]:

“The “participation in the Karen community and the political groups” could be said to have been dealt with by the tribunal dealing with the appellant’s activities in Australia.  The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not.  This is not merely one aspect of evidence not being touched. It is not a failure to find a “relevant” fact.  The tribunal failed to address and deal with how the claim was put to it, at least in part.  The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant.  To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.  The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 …and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323….  See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287… at [18], [19], [21] and [50].  It is to be distinguished from errant fact finding.  The nature and extent of the task of the tribunal revealed by the terms of the Act, for example ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in reg 866 to the “claims” of the applicant for example 866.211, make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.  If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with.  If the sur place claim is, or is to be seen as, based on more than one foundation – that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with.  The tribunal did not deal with the latter basis of the appellant’s sur place claim based on imputed political opinion.  It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error.  It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion.  It is true that when called on at the hearing to articulate orally his fears he did not expressly identify his friendships as distinct from his activities in Australia.  However, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, I do not see this basis for the claim as having been abandoned.  Conceptually, and in a common sense way, it was quite distinct from his claim based on his activities of the kind referred to earlier.”

22                  More recently, in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 a Full Court comprising French, Sackville and Hely JJ, in a joint judgment, said at [46]-[47]:

“It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.  It may be that some evidence is irrelevant to the criteria and some contentions misconceived.  Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323… at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.  The tribunal is not a court.  It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications.  Each of the applications it decides is, of course, of great importance.  Some of its decisions may literally be life and death decisions for the applicant.  Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”.  Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

23                  The issue to be resolved in this appeal is simply whether the Tribunal dealt adequately with all elements or integers of the appellant’s claim.  Dr Donaghue, for the Minister, submitted that it was plain that the Tribunal had done all that was required of it.  Having found that the appellant’s passport had somehow come into the possession of the LTTE, and that he would almost certainly be questioned about how that had occurred, the Tribunal concluded that any suspicion on the part of the authorities that the appellant might have given the passport to the LTTE would be easily allayed.

24                  Mr Kissane, in his written submissions, added a gloss to his contention that an integer of the appellant’s central claim had not been considered.  He submitted that the Tribunal had been bound to take into account the fact that the passport had not just been found in possession of the LTTE, but that it had been found at an LTTE camp.  This was said to constitute an aspect of the claim that required separate consideration, but that had been entirely ignored.

25                  In my opinion, the Federal Magistrate did not err in concluding that the Tribunal had considered all elements or integers of the appellant’s claim.  The Tribunal devoted a great deal of time to demonstrating just why the appellant would easily be able to rebut the suggestion that he knowingly allowed the LTTE to use his original passport.  There was no point in addressing these issues unless it had in mind precisely that suggestion, and intended to put it to rest.  Moreover, the fact that the passport was found at an LTTE camp was not, in my view, an integer of the appellant’s claim.  It was rather, simply, a piece of evidence upon which he relied in support of his more general claim of imputed political opinion based upon what had happened to his passport.  It was unnecessary to make any finding regarding this particular matter because, in the language used in Applicant WAEE, it was “subsumed in findings of greater generality”. 

26                  It follows that no error of any kind has been shown in either the reasoning of the Tribunal, or that of the Federal Magistrate.  The appeal will be dismissed, with costs.

Associate:

Dated:              29 April 2004