FEDERAL COURT OF AUSTRALIA

S440 of 2002 v Refugee Review Tribunal [2004] FCA 696

MIGRATION - denial of procedural fairness – whether denial of procedural fairness by Tribunal in failing to bring adverse materials to the attention of the applicants – whether Tribunal correspondence was misleading in referring to ‘material relating to your application’ – whether applicants were misled by Tribunal correspondence – bias – whether tentative views formed by the Tribunal in the course of the hearing was indicative of bias.

Migration Act 1958 (Cth), s 474(2)

Convention relating to the Status of Refugees 1951

S440 v Minister for Immigration & Multicultural Affairs [2001] FCA 1043 referred to

S440 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 98 referred to

Stead v State Government Insurance Commission (1986) 161 CLR 141 referred to

NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 317 referred to

Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors [2002] HCA 30 referred to

Minister v Yusuf (2001) 206 CLR 323

S440 OF 2002 v REFUGEE REVIEW TRIBUNAL & ANOR

N352 OF 2003

EMMETT J

31 MAY 2004

SYDNEY

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         Orders nisi in the nature of certiorari and mandamus be made in relation to the decision of the first respondent of 26 February 2001 in matters N00/35145 and N00/35148.

2.         The orders nisi be discharged.

3.         The adult applicants pay the second respondent’s costs of the proceeding.

4.         The application be otherwise dismissed.

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

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The applicants are husband, wife and their two infant children.  They are citizens of Sri Lanka of Tamil ethnicity and have applied unsuccessfully for protection visas under the Migration Act 1958 (Cth) (‘the Act’).  On 2 December 2002, they applied to the High Court of Australia for constitutional writ relief in respect of a decision of the first respondent, the Refugee Review Tribunal (‘the Tribunal’), made on 26 February 2001 (‘the Relevant Decision’), confirming decisions of the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), not to grant protection visas to them.  On 6 February 2003, Gaudron J ordered that the further proceedings in that application be remitted to the Federal Court of Australia and that the application in the Federal Court proceed as if the steps already taken in the application in the High Court had been taken in the Federal Court.  The remitted application has now been argued in full before me.

THE LITIGIOUS HISTORY

2                     The applicant wife and the two children arrived in Australia on 29 June 1997.  On 30 July 1997 they applied for protection visas under the Act.  On 9 December 1997 a delegate of the Minister refused to grant them protection visas and on 23 December 1997 they applied to the Tribunal for review of that decision.

3                     The applicant husband arrived in Australia on 17 January 1998.  On 25 February 1998 he lodged an application for a protection visa under the Act.  On 25 May 1998 a delegate of the Minister refused to grant a protection visa and on 10 June 1998 the applicant husband applied to the Tribunal for review of that decision.

4                     On 2 and 22 February 2000, in relation to the applicant wife and applicant husband respectively, the Tribunal affirmed the decisions made by the Minister’s delegates not to grant protection visas and the applicants then sought judicial review of the Tribunal’s decisions by the Federal Court.  On 2 August 2000, Moore J set aside the decisions of the Tribunal and remitted the matters to the Tribunal to be determined according to law.  On 26 February 2001, the Tribunal, differently constituted, made the Relevant Decision, to affirm the decisions of the Minister’s delegates not to grant protection visas to the applicants. 

5                     The applicants then applied to the Federal Court for review of the Relevant Decision.  On 31 August 2001, Hely J dismissed the application (see S440 v Minister for Immigration & Multicultural Affairs [2001] FCA 1043).  On 15 April 2002 the Full Court of the Federal Court dismissed an appeal from the orders of Hely J (see S440 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 98).  On 5 November 2002 the High Court of Australia refused special leave to appeal from the orders of the Full Court.

6                     Against that background, the applicants commenced this proceeding in the High Court of Australia by filing a draft order nisi supported by an affidavit.  By the draft order nisi, the applicants sought orders that the Tribunal and the Minister show cause why:

• An injunction should not be granted prohibiting the Minister from removing the applicants from Australia pending the determination of the application.
• A writ of mandamus should not be issued requiring the Tribunal to rehear and determine the matter according to the law.
• A writ of certiorari should not be issued requiring the Tribunal to accept and determine the applications for protection visas according to law.

7                     On 5 September 2003, after the matter was remitted to the Federal Court, I ordered that the applicants file points of claim setting out the grounds upon which they sought the relief set out in the draft order nisi.  Pursuant to those orders, points of claim were filed on 7 November 2003.  In accordance with Order 51A Rule 5, I have now heard the parties on the question of whether an order nisi should be made and, if an order were to be made, whether it should be made absolute.  Before dealing with those questions, it is first desirable to say something about the findings made by the Tribunal in the course of making the Relevant Decision, which the applicants seek to impugn.

THE TRIBUNAL’S FINDINGS

8                     The applicant wife was born in Jaffna in the North of Sri Lanka in 1958.  She worked in Singapore from 1982 to 1986 and, after returning briefly to Sri Lanka, went to Switzerland in 1986 where she was granted an entry permit in October 1986.  From December 1986 until she came to Australia she was employed in Switzerland.  The applicant wife’s mother continues to live in Sri Lanka.  She also has a sister who is probably still in Sri Lanka. 

9                     The applicant husband is from Manipay, a northern province of Sri Lanka.  He was born in Jaffna in 1958.  The applicant husband went to India to do a course in 1978 and stayed until late 1979.  He then moved to a Sinhalese area in the Colombo area to pursue his studies and remained there from 1980 to September 1981, when his father helped him to go to Singapore.  He worked in Singapore from 1981 to 1983.  The applicant husband returned to Sri Lanka after the 1983 riots.  He could not find a suitable job in Colombo so he returned to Jaffna.  He then went to Switzerland where he was granted an entry permit in June 1984.  He was employed in a chemical factory in Switzerland from April 1989 to January 1998 when he left for Australia. 

10                  The applicant husband and wife were married in Switzerland in 1987 and their children were born in Switzerland in 1987 and 1992.  The applicant husband and wife visited Australia in 1991 and the applicant husband visited Australia in late 1995.  The applicant husband and wife also visited France in May 1996 and June 1997 and Germany in July 1997. 

11                  The applicants entered Australia on Sri Lankan passports, which were issued by Sri Lankan authorities in Switzerland in March 1996.  The applicant children are included in the applicant wife’s passport.  The Australian visas of all of the applicants were issued in February 1997. 

12                  The Tribunal accepted the applicant wife’s account of her experiences in Sri Lanka in the early 1980’s.  The applicant wife claimed that she was pressured to join or help the organisation known as the Liberation Tigers of Tamil Eelam (‘LTTE’) both before she went to Singapore in 1982 and in the months that followed her return in 1986 before she went to Switzerland in October 1986. 

13                  The Tribunal also accepted the applicant husband’s account of his experiences in Sri Lanka in the early 1980’s.  He claimed that he returned to Jaffna from India in 1979 and that he lived in the Colombo area from 1980 to September 1981 but then went to Singapore to avoid trouble because he had given overnight accommodation to two friends who were in the LTTE.  The Tribunal also accepted that, while back in Jaffna for six months in the first half of 1984 before he went to Switzerland, the applicant husband was pressured to join the LTTE and that, because of a mistaken belief that he was a major LTTE leader, he was arrested in a cinema, detained and seriously mistreated and tortured by the authorities before being released.

14                  The Tribunal accepted that the applicant children are Sri Lankan citizens and have no automatic legal right to reside in Switzerland.  Although the applicant children were born in Switzerland, they have no claim to Swiss citizenship as they were born to foreign parents. 

15                  The Tribunal, in its reasons, stated that the applicants claimed to fear harm from the Sri Lankan authorities and from the LTTE, even in Colombo, but the Tribunal was not satisfied that those claims were well founded.  The Tribunal’s reason was that, for 20 years, the applicant husband had not lived in Sri Lanka for any length of time and even then it was in Jaffna for three months for the first half of 1984.  It was almost as long since the applicant wife had lived in Sri Lanka, except for some time in 1986 after her return from Singapore and before she went to Switzerland in October 1986.  The Tribunal did not consider that it was plausible that the applicants are now of interest to the Sri Lankan authorities or the LTTE for any adverse reason.  The Tribunal had regard to the fact that the applicant husband left Sri Lanka legally in June 1984 on a passport in his own name.  He had replacement passports issued by the Sri Lankan authorities over the years and the children were registered as Sri Lankans and included on the applicant wife’s passport, without incident. 

16                  The applicants claimed to fear arrest, detention and mistreatment as LTTE suspects, because the applicant wife’s sister joined the LTTE in 1991.  The Tribunal rejected those claims as implausible.  The Tribunal observed that the applicant wife left Sri Lanka for the last time in 1986, after having only been in Jaffna for some months after living in Singapore for four years.  She married in 1987 in Switzerland and her passport shows only her married family name.  Further, the Tribunal referred to the fact that the applicant husband has never met his wife’s sister as he and his wife only met in Switzerland.  It was not until 1991 that the applicant wife’s sister allegedly joined the LTTE and the applicants have had no contact with her for many years.  All that the applicant wife knows about her sister is that her father refused to permit her to join the LTTE but that she did so in 1991, two years after their father died.  The applicant wife does not know whether her sister uses her own name or another name, she does not know whether her sister is known to the authorities and does not even know whether her sister is still alive. 

17                  The applicant husband also claimed to fear being identified to the authorities by former fellow students, now members of pro-government Tamil groups, because the husband and wife applicants were pressured to join the LTTE, and had to help the LTTE in Jaffna before they went to Switzerland.  The Tribunal rejected those claims as highly implausible and was not satisfied that the past contact or involvement of the applicant husband and wife, as residents of Jaffna at the time of the LTTE’s rise and its increased militancy, meant that they would be identified or suspected as being LTTE members or suspected of current involvement with the LTTE. 

18                  The Tribunal also rejected the claims made by the applicant husband that he would be of ‘adverse interest’ to the authorities because he had applied for and was granted refugee status in Switzerland. 

19                  In addition the Tribunal also rejected claims by the applicants that they feared harm because they would be suspected of being LTTE members or involved with the LTTE just because they are Tamils.  The Tribunal accepted that everyone, including Sinhalese, is stopped at check-points throughout Colombo, but that those detained are people without identification, particularly if they are Tamils.  The Tribunal considered that those most at risk at security operations were young Tamil men and women, recently arrived from the north and east, who are unable to explain their presence in Colombo to the authorities satisfactorily.  The Tribunal concluded that the applicants did not fit such a profile, being a middle-aged married couple and their children, who have not lived in the north, or indeed in Sri Lanka, for many years.  They have no significant or recent links to the LTTE and they have genuine Sri Lankan passports and other personal identification to identify themselves and prove their absence from Sri Lanka. 

The Tribunal therefore concluded that the applicants are not persons to whom Australia owes obligations under the Convention relating to the Status of Refugees 1951.

GROUNDS OF REVIEW

20                  The points of claim filed on 7 November 2003 specified the following grounds:

‘1.        There was a denial of procedural fairness in the making of the decision of [the Tribunal] made on 26 February 2001 in that:

(a)       [The Tribunal] took into account documents and matters adverse to [the applicants] and their case, being cables and country information reports of the Commonwealth Department of Foreign Affairs, without notice to the [applicants] or any of them.  …

Had the [Tribunal] first provided this information to the [applicants], the [applicants] would have been able to adduce evidence or make further submissions going to the said documents and would have had better prospects of obtaining a favourable decision; and

(b)               The [applicants] were mislead [sic] by official communications of the [Tribunal] by way of letters dated 10 June 1998, 17 August 1999, 29 September 2000 and 8 December 2000 into believing that certain documents containing information favourable to the [applicants] case that had constituted evidence before the delegate of the [Minister] would be given to the Tribunal whereas it was not.  …

Had the [Tribunal] been given and considered this information, the [applicants] would have had better prospects of obtaining a favourable decision.

2.                  The decision of the [Tribunal] made on 26 February 2001 was beyond its jurisdiction in that:

(a)               In rejecting the claims of the [applicants] that they were at increased risk in Sri Lanka because the sister of the wife … applicant was a long standing member of the LTTE … the [Tribunal] took into account irrelevant considerations namely:

(i)                  The length of time that the applicant wife had been out of Sri Lanka;

(ii)                That her passport only showed her married name;

(iii)              That the applicant husband had not even met the said sister;

(iv)              Lack of current knowledge about the rank and whereabouts of her sister in the LLTE

(b)               In having before it and taking into account the first Tribunal’s decision dated 22 February 200 … the [Tribunal] took into account irrelevant considerations.  The [Tribunal] not only took the said impugned decision into account, it adopted passages from it without having read the supporting information …; and

(c)               The [Tribunal] was biased or apparently biased in that the [Tribunal] made certain remarks to the applicant wife during the course of the oral hearing on 6 February 2001 such as to give rise to bias or an apprehension of bias in the making of the decision of the [Tribunal] made on 26 February 2001.’ [Emphasis added]

21                  On its face the Relevant Decision is a privative clause decision within s 474(2) of the Act in that it purports to be a decision of an administrative character made under the Act.  Accordingly, prima facie, it cannot be subject to certiorari or mandamus.  However, the applicants contend that the matters alleged in the points of claim are such that the Relevant Decision was not a decision made under the Act. 

22                  I have referred above to the prior history of litigation involving decisions of the Minister’s delegates and of the Tribunal concerning the grant of protection visas to the applicants.  The Minister did not raise, by way of answer to the present application, any question of res judicata or issue estoppel arising out of the earlier challenges to the Relevant Decision.  Nor did the Minister raise, by way of answer to the present application, the delay between the making of the Relevant Decision and the filing of the draft order nisi in the High Court.  It would always have been possible for the applicants to challenge the Relevant Decision in the High Court on the grounds outlined in the points of claim. 

23                  The applicants rely upon each ground as constituting an independent basis for the grant of the relief claimed in the order nisi.  I shall deal with each of those grounds separately. 

ADVERSE MATERIAL

24                  In its reasons for decision, in dealing with independent country information relating to Sri Lanka, the Tribunal, said:

‘An August 2000 report noted that Sri Lanka remained safe for the return of failed asylum seekers and that recent human rights and security developments had not altered that assessment.  A directive was issued to cease a practice that had evolved of confiscating emergency travel documents of returnees on arrival until the person has obtained new ID cards as those without identification were open to harassment and arrest at security checkpoints.  (“CIR No.470/00” DFAT 25 August 2000 CX 44106).

Another recent report noted, in response to a question about the return of an elderly couple, originally from the north but after 14-19 years abroad, that their assessment is unchanged ie “Sri Lanka is safe for the return of failed asylum seekers.  Recent security and military developments, and the promulgation of emergency regulations, have not yet resulted in a notable change to the treatment of Tamils and patterns of arrest and detention in Colombo and the rest of Sri Lanka.  Cordon and search operations and arrests occur after security incidents, as they always have.  Most people are generally released after their identity has been verified.  People fitting the high risk profile – young Tamils from the north and the east who cannot explain their presence in Colombo and who are suspected of having links with the LTTE – run a higher risk of being persecuted than other Tamils.  An elderly couple who have spent 19 years abroad would not fit the high risk profile.  Our previous advice that returnees generally are not being mistreated by Criminal Investigation Department officials at the airport and in most cases are released within a few hours after questioning to verify their identity is still current.”.  If the elderly couple faced any harassment in Vavuniya because of their perceived wealth or suspicion that they donated money to the LTTE abroad (all diaspora Tamils are suspected of supporting the LTTE one way or another) then “relocation to Colombo or the south would be an option.”  (“CIR No.543/00” DFAT 25 October 2000 CX45817).’

25                  The applicant husband, in par 16 of his affidavit in support of this application, referred to those extracts as ‘the adverse materials’.  He said that, during the period from 10 June 1998, when the he lodged with the Tribunal his application for review of the delegate’s decision, to the date when he received notification of the Relevant Decision, he did not receive a copy of and was never shown a copy of the two documents referred to in those extracts.  Further, the applicant husband was not aware during that period of the substance or the content of the documents referred to in those extracts. 

26                  In his affidavit in par 19 (the first of two consecutive paragraphs both numbered 19) the applicant husband said as follows:

‘Had I been aware of the fact that the “adverse materials” set out in paragraph 15 [sic] above would not be brought to my attention prior to the date of the review on the papers, prior to the hearing, or prior to the making of the Tribunal’s decision I would have:

(a)        arranged to have my migration agent or a solicitor/migration agent act for me in order to make further written submissions to the Tribunal and to seek to appear at the oral hearing with me or on my behalf in order to make submission regarding the content of the said documents with a view to seeking to highlight those parts of the cables and documents which assisted my case and challenging or going against those parts which were clearly adverse to my case;

(b)        sought to bring forward before the Tribunal additional evidence to that which I did send to or adduce to the Tribunal by way of documents, statements, further witnesses or country information which went to the question of the true position in Sri Lanka to the effect that it was unsafe for me and my family to return home and supporting my claims that my stated fears of persecution in Sri Lanka were reasonable at the time; and/or…’

I have taken the preamble of that paragraph to mean that, if the ‘adverse materials’ had been brought to his attention prior to the making of the Relevant Decision, the applicant husband would have taken the steps set out in pars (a) and (b). 

27                  The substance of the ‘adverse materials’ contained in the two documents referred to by the Tribunal is that failed asylum seekers who return to Sri Lanka are not at risk simply by reason of the fact that they have applied for asylum and failed.  The documents say nothing more than that.  The applicants were unable, through their counsel, to point to any specific submission that could have been made in relation to the material in the passages cited or in the balance of the two documents in question.  There was nothing produced or submitted by the applicants to suggest that the statements contained in the documents were other than perfectly true. 

28                  Further, the Minister contends that exchanges between the Tribunal and the applicant husband, in the course of a hearing before the Tribunal, must be taken to have alerted the applicant husband that there was at least a possibility that the Tribunal would conclude that there was no risk likely to flow to the applicants from the mere fact that they were returning to Sri Lanka as unsuccessful asylum seekers. 

29                  Thus, in the course of the hearing, the Tribunal member made the following observation to the applicant husband:

‘There is absolutely no evidence that I have been able to find that the Sri Lankan government cares at all that people have applied for refugee status in Australia, in Switzerland, in Canada or anywhere.  And there is [sic] thousands and thousands of Tamils, Sri Lankan Tamils, who have gone back to Sri Lanka.  Thirty thousand went back from India in one year.  Let me make my point.  Hundreds went back from Switzerland.  Many thousands go back every week for business or visits or family.  And very few people have any trouble.  Now the people who have trouble are people who left on false documents or returned on false documents or people who returned without any documentation and can’t prove who they ware or people who were deported and don’t have evidence who they are.’

30                  In response, the applicant husband said:

‘When I tell my story I bring to your notice that I do not have the identity card of Sri Lankan government.  I have only the passport.  Now for example, when I leave the airport or in case if I left airport and wanted to go inside the country every sentry point will ask for the passport and the identity card.’

31                  In the circumstances, I am not persuaded that the failure to draw the attention of the applicants to the contents of the two documents in question deprived them of the possibility of a successful outcome of their application to the Tribunal (see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147).  I do not consider, therefore, that there has been a denial of procedural fairness by reason of any failure by the Tribunal to draw the attention of the applicants specifically to the two documents referred to in the passages cited above. 

FAVOURABLE MATERIAL

32                  The second ground is, in substance, that the applicant husband was misled by the correspondence he received from the Tribunal following the lodging of his application for review.  It is necessary, therefore, to summarise that correspondence.  First, however, it is relevant to consider the terms of the notification of the decision of the Minister’s delegate as received by the applicant husband. 

33                  By letter of 25 May 1998, the Minister’s delegate informed the applicant husband that his application for a protection visa had been refused.  A copy of the decision record giving the reasons for the refusal was attached to that letter (‘the Decision Record’).  The Decision Record consisted of four parts.  Part A described the applicant husband and the legal framework within which the delegate’s decision was to be made.  In Part B of the Decision Record, the delegate set out the evidence relied on in making the decision.  Part C contained an assessment of the specific claims made by the applicant husband and Part D contained the conclusion that the applicant husband was not a person to whom Australia had protection obligations.  Part E contained the decision refusing the grant of a protection visa. 

34                  The applicants draw particular attention to Part B.  The evidence described in Part B consisted of a number of documents as follows:

·        B1: Departmental files N98/949 relating to the applicant husband;

·        B2: Handbook on Procedures for Determining Refugee Status, published by the office of the United Nations High Commissioner for Refugees (January 1992); and

·        B3 to B24: twenty-two other documents dealing with conditions in Sri Lanka.

35                  It is common ground that the only documents referred to in Part B of the Decision Record that were physically transferred to the Tribunal at any time prior to the handing down of the Relevant Decision on 20 March 2001 were the files described as document B1, namely Departmental files N98/949 relating to the applicant husband.  Those files are not in evidence. 

36                  In the letter of 25 May 1998, the Minister’s delegate said:

‘You may apply to the Refugee Review Tribunal (RRT) for review of the refusal to grant you a Protection Visa (866).

I have enclosed a brochure about how you can apply to the RRT.  Application forms are available from the RRT or from any Regional Office of the Department of Immigration and Multicultural Affairs.

If you decide to apply for a review, you must lodge your application with the RRT within 28 days of receiving this letter.  You are taken to have received this letter 7 days after the date of this letter.

More detailed information is available from the RRT, including a translated copy of the enclosed brochure …’

37                  The applicant husband subsequently lodged his application for a review by the Tribunal of the delegate’s decision, which the Tribunal received on 10 June 1998.  The Tribunal wrote to the applicant husband on that day and sent a copy of the letter to the applicant husband’s solicitors, Messrs Somers & Sivalogan.  There was no evidence of the terms of the retainer of those solicitors.  However, I would draw the inference that they were retained to advise the applicant husband on his rights under the Act and in relation to the decision of the Minister’s delegate.

38                  The Tribunal’s letter of 10 June 1998 relevantly said:

‘The Refugee Review Tribunal reviews decisions made by the Department of Immigration and Multicultural Affairs about refugee status and is independent of the Department.  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 on 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.

Please note that you may send any documents or written evidence at any stage of the case.

You should quote the file number shown at the top of this letter when sending any documents to the Tribunal.  Any documents you wish to send in support of your application that are not in English must be translated into English by an accredited translator or recognised translation authority.

You should not send any documents or written arguments which you have already given to the Tribunal or the Department about your refugee status application.’ [Emphasis added]

39                  The letter referred to ‘the Department’s documents’, being ‘its documents about your case’.  The letter made no mention of Part B of the Decision Record.  There will be a question as to what might fairly be understood as constituting ‘the Department’s documents about your case’.  In the context of the Decision Record and the contents of Part B, document ‘B1’ might fairly be regarded as the only documents of the Department ‘about your case’.  None of the other 23 documents listed in Part B of the Decision Record relates specifically to the applicant husband.  Nor are they documents that emanated from the Department.  Apart from the handbook, they are all concerned only with conditions in Sri Lanka generally. 

40                  On 17 August 1999, the Tribunal wrote again to the applicant husband, with a copy to his solicitors.  The letter relevantly said:

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

…

If you have any new documents or written arguments that you would like the Tribunal to consider, you should send them to the Tribunal with the completed form.  Any documents you send are to be in English, or translated into English by an accredited translator’. [Emphasis added.]

While the letter refers to ‘the material relating to your application’, the letter does not identify that material.  The letter is capable of being understood as referring to the Departmental files relating to the applicant husband, being document B1.  The letter is certainly equivocal as to whether the Tribunal had actually been given a physical or hard copy of all or any of the documents referred to in Part B of the Decision Record. 

41                  No issue was raised before Moore J concerning the documents referred to in Part B of the Decision Record.  It may be that, at that stage, the applicant husband had no reason to doubt that the Tribunal had done what it said it had done, namely, looked at the material relating to the applicant husband’s application.  A question, however, will arise as to precisely what the Tribunal should be understood as saying it had done. 

42                  In any event, on 29 September 2000, following the remittal of the matter by Moore J to the Tribunal for further consideration, the Tribunal wrote to the applicant husband once more, with a copy to his solicitors.  That letter relevantly said:

‘The Tribunal is now ready to consider your case, which was remitted to the Tribunal by the Federal Court on 2 August 2000.

The Tribunal will now look at all evidence, submissions and other documents on the Tribunal file to determine whether it can make a decision in your favour immediately.

If the Tribunal cannot make a decision in your favour, you will be asked whether you want to come to a hearing of the Tribunal to give oral evidence and to present arguments.  Some hearings are conducted by video or telephone conference.

If you have any new documents or written evidence you should send them to the Tribunal at the earliest possible point in the review process.  You should quote the file number shown at the top of this letter when sending any documents to the Tribunal.  Any documents that are not in English are to be translated into English by an accredited translator or recognised translation authority.

You should not send any documents or written arguments which you have already given to the Tribunal or the Department about your protection visa application.’ (Emphasis in original)

43                  The letter is in similar terms in some respects to each of the earlier two letters, of 10 June 1999 and 17 August 1999.   While the letter refers to ‘all evidence, submissions and other documents on the Tribunal file’, it is unspecific as to whether or not the Tribunal would look at any documents that were considered by the Minister’s delegate but were not on the Tribunal file.  Neither the applicant husband nor his solicitors made any enquiry as to what documents were on the Tribunal file. 

44                  Finally, on 8 December 2000, the Tribunal wrote again to the applicant husband, with a copy to his solicitors, relevantly saying:

‘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 invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims.  You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.

…

If you have any new documents or written arguments that you would like the Tribunal to consider, you should send them to the Tribunal with the completed form.  Any documents you send are to be in English, or translated into English by an accredited translator.’

Once again, that letter is equivocal as to whether ‘all the material relating to your application’ included documents B2 to B24 referred to in Part B of the Decision Record.  Once again, neither the applicant husband nor his solicitors made any enquiry as to what the ‘material relating to your application’ consisted of.  The word ‘material’ in the letter of 8 December 2000 might refer to documents in hard copy form but is also capable of referring to information, knowledge and facts.  The Tribunal is an administrative body that makes decisions on the basis of its specialist knowledge.  In saying that the Tribunal had ‘looked at all the material relating to your application’, the Tribunal’s letter might be understood as referring to what had happened over a broader expanse of time than the undertaking of the particular review relating to the applicant husband (NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 317 at [92]). 

The Applicant Husband’s Belief as to the Documents

45                  The applicant husband’s evidence in chief as to how he claims to have been misled by the correspondence from the Tribunal was given principally by affidavit and was supplemented by oral evidence and cross-examination through an interpreter.  The evidence concerning the state of mind of the applicant husband is not very satisfactory. 

46                  The relevant paragraphs of the affidavit of the applicant husband are as follows:

‘7.        After reading the Tribunal’s letter dated 10 June 1998, I was then under the belief that the Tribunal would be sent all the documents about my case which were then held by the then Department of Immigration and Multicultural Affairs (“the Department”), including;

(a)       the decision of the Minister of the Department’s delegate dated 25 May 1998; and

(b)       a copy of each the documents referred to in that decision numbered under the heading “PART B:  EVIDENCE BEFORE ME” (“the Part B Documents”);

and that the Tribunal would look at all that material in the making of its review on the papers, as referred to in the third paragraph of the letter.

…

9.         After I received and read the Tribunal’s letter dated 17 August 1999, and, after I had completed and signed the “Response to Hearing Invitation” form, I was under the belief that the Tribunal had already conducted what was known as a review on the papers in relation to my application and had looked at all of those papers referred to in paragraph 7 above in this my affidavit.

…

13.       After I received and read the Tribunal’s letters dated 29 September 2000 and 8 December 2000, I was under the belief that the Tribunal had already conducted further review on the papers in relation to my application and had looked at all of the papers referred to in paragraph 7 above in this my affidavit.’ [Emphasis in original]

47                  In the second consecutive paragraph numbered 19 in the affidavit, the applicant husband said:

‘Had I been aware of the fact that the Part B documents were not all given to the [Tribunal] by the secretary of the [Minister], I would… have tendered or delivered to the [Tribunal] the following Part B documents and made submissions highlighting those parts of the documents that were favourable to my case and my family’s case.’

A description of the following documents (‘the documents in question’) mentioned in summary form in Part B of the Decision Record was then set out:

• ‘Sri Lanka Country Report on Human Rights Practices for 1996’, published by US Department of State on 30 January 1997 (B3);
• ‘Sri Lanka Country Report on Human Rights Practices for 1997’, published by US Department of State on 30 January 1998 (B3);
• ‘Tamil Tiger Terror in Sri Lanka’, extract from Encyclopaedia of World Terrorism vol 2, published in June 1997 (B20);
• ‘The Vavuniya Situation’, from a report published in Canada on 2 January 1997 (B21);
• ‘Sri Lanka’, extract from Keesing’s Record of World Events – vol 42 Reference Supplement dated 26 July 1996 (B22);
• ‘Informed Situation Report’, dated December 1997 (B23).

48                  The above paragraphs of the affidavit were read without objection and there was only limited cross-examination of the applicant husband on behalf of the Minister.  Nevertheless, I have considerable difficulty in accepting on the balance of probability that the applicant husband was misled by the correspondence from the Tribunal.  This difficulty arises because the applicant husband does not say in his affidavit how his claimed beliefs were induced by the correspondence from the Tribunal. 

49                  An interpreter’s affidavit asserts that the contents of the applicant husband’s affidavit were translated and interpreted to him and that he appeared to understand what the interpreter said and to accept it as being true and correct.  However, it is clear that the language used in the affidavit is not the language of the applicant husband himself.  It is the language of a lawyer.  It is unlikely to be a coincidence that the words of parts of the affidavit correspond verbatim with the words of the agreed facts in Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors [2002] HCA 30.

50                  In his oral evidence in chief, the applicant husband’s counsel asked him about the ‘second decision’ of the Tribunal.  When asked whether he read that decision, the applicant husband responded, through the interpreter, ‘My lawyer read it to me’.  When his counsel asked him whether the second decision of the Tribunal referred to documents in various places, he said, through the interpreter, that he could not fully understand.  When asked whether, in its second decision, the Tribunal member referred to a number of documents, he responded through the interpreter ‘No.  I was not told anything like that’.  Ultimately, however, he said that he remembered the Tribunal mentioning documents in its second decision. 

51                  The applicant husband was then shown a copy of the Tribunal’s reasons for the Relevant Decision and asked whether he recognised the document.  His response through the interpreter was:  ‘This he read and explained.  Yes’.  That appears to be a reference to the lawyer who read the reasons to him.  He was then asked ‘Can you read English?’ and responded through the interpreter ‘I not able to read in full’. 

52                  In cross examination, the applicant husband was shown a copy of those documents referred to in Part B of the Decision Record that he says he would have tendered or delivered to the Tribunal.  He was asked whether he recognised any of the documents and if he could not recognise them to say so.  His response through the interpreter was:

‘No.  I cannot.  What I did was – they were written in English, that is why I assigned him and an advisor. (sic)’

53                  Subsequently, counsel for the Minister asked the applicant husband what were the submissions that he would have made highlighting those parts of the documents that were favourable to his case and his family’s case, as he alleged in his affidavit.  The evidence was as follows:

54                  The responses set out above indicate that the witness had no real comprehension of the documents that he says he would have tendered or delivered to the Tribunal and made submissions about.  The documents make no reference to the applicants and they were not provided to the Minister’s delegate by the applicant husband. 

55                  As I have said, the applicant husband asserted in his affidavit that, had he been aware of the fact that the documents referred to in Part B of the Decision Record ‘were not all given to’ the Tribunal, he would have made submissions highlighting those parts of the documents that were ‘favourable to my case and my family’s case’.  It is impossible to know what submissions he might have made.  More significantly, it is difficult to see why the applicant husband would have made submissions highlighting parts of the documents that were favourable only if he had been aware that all of the documents had not been given to the Tribunal.  One might expect that, even if he believed that all of the documents in question had been given to the Tribunal, he would still have made submissions highlighting those parts of the documents that were favourable.  He did not do so or make any attempt to do so.  That cast real doubt on his assertion as to what he would have done if he had known that the documents in question ‘were not all given’ to the Tribunal. 

56                  In his affidavit, the applicant husband also asserted that, after reading the letter from the Tribunal of 10 June 1998, he was then ‘under the belief that the Tribunal would be sent all the documents about my case’ including a copy of each of the documents referred to in Part B of the Decision Record.  As I have said, the letter of 10 June 1998 does not refer to the documents described in Part B.  It refers only to the ‘Department’s documents about your case’.  Having regard to the applicant husband’s very limited comprehension of English, it is difficult to understand why reading the correspondence gave rise to the belief asserted. 

57                  It is all the more puzzling as to why the applicant husband would not have consulted his solicitors in relation to such a matter, particularly when he said that his lawyer read the reasons of the Tribunal to him and he consulted an adviser when documents were in English.  All of the correspondence in question was sent to his solicitors.  No evidence was called from those solicitors as to their understanding of the correspondence. 

58                  In paragraph 9 of his affidavit, the applicant husband said that, after he ‘received and read’ the Tribunal’s letter of 17 August 1999, he was ‘under the belief that the Tribunal had already conducted what was known as a review on the papers in relation to my application and had looked at all of those papers referred to in paragraph 7 above in this my affidavit’.  That seems to be an assertion that the applicant husband believed that the Tribunal had looked at copies of each of the documents referred to in Part B of the Decision Record.  Once again, having regard to the very limited ability of the applicant husband to read English, it is difficult to see how such a belief could be derived from reading that letter. 

59                  In paragraph 13 of his affidavit, the applicant husband said that, after he ‘received and read’ the Tribunal’s letters of 29 September and 8 December 2000, he was ‘under the belief the Tribunal had already conducted further review on the papers in relation to my application and had looked at all of the papers referred to in paragraph 7 above in this my affidavit’.  The same difficulty arises as to how any such belief was in any way engendered by a reading of those two letters. 

60                  It is very difficult to assess the demeanour of a witness who gives evidence through an interpreter.  That difficulty is accentuated by cultural differences for a witness giving evidence in a foreign country.  Accordingly, I am reluctant to make any judgment of the credibility of the applicant husband by reference to his demeanour in court.  However, I make the observation that the applicant husband appeared to make no attempt to respond to counsel for the Minister but appeared to regard cross-examination as an exchange between himself and the interpreter.  In one sense, that would be understandable if the witness had no comprehension of English at all.  However, as indicated above, he did not claim to have no knowledge of English.  Rather, he said that he was not able to read English ‘in full’.  Further, at the hearing before the Tribunal, in answer to the question ‘Do you have some English?’, the applicant husband replied through the interpreter ‘Little bit’.

61                  In addition, there were several instances in the course of cross-examination before me when the applicant husband gave non-responsive answers.  Thus, at one stage, counsel for the Minister asked the applicant husband whether the Tribunal told him that it had formed the view that Sri Lanka was safe for the return of failed asylum seekers.  The applicant husband responded through the interpreter:

‘She might have told that but in my case there is no safety, because my wife’s sister is in the movement.  If that fact is known the Sri Lankan government will immediately arrest me and detain.  Those who are abroad can say that someone will be able to return to Sri Lanka but I only individually know what plight of danger I will be if I return.  One of my family members is there in the movement, therefore, I will have problems.’

62                  The following exchanges then occurred through the interpreter:

63                  No doubt a witness in the position of the applicant husband would be anxious to emphasise his case at every opportunity.  However, the impression that I gained from the manner in which the applicant husband answered questions did not assist his credibility. 

64                  The applicant husband gave no evidence as to the circumstances in which he became aware of the Decision Record.  Indeed, there is no evidence that he had ever read it before receipt of the correspondence from the Tribunal.  His affidavit does not expose any process of reasoning that led him to conclude, from the terms of the letter of 10 June 1998, that, as he asserts, the Tribunal would look at what he describes as ‘the Part B documents’.  The decision record is a somewhat technical document.  It is difficult to accept that the applicant husband, with his very limited comprehension of English, would have understood, from the letter of 10 June 1998, that the Tribunal was saying that the documents referred to in Part B of the Decision Record would be sent to it and that he would have understood from the letter of 17 August 1999 that the Tribunal had conducted ‘a review on the papers’ and had looked at all of the documents referred to in Part B.  It is unlikely that the applicant husband would have had any understanding of the English expression ‘a review on the papers’.

65                  Certainly, there was no cross examination of the applicant husband in relation to those matters.  Nevertheless, I am not persuaded, on the balance of probability, in the absence of anything further from the applicant husband, that receipt of the four letters from the Tribunal induced in his mind the belief to which he deposed.  It follows that there was no denial of procedural fairness by reason only that the Tribunal represented to the applicant husband that it had been given and had considered all of the Part B documents. 

Did the Tribunal Have Regard to the Documents

66                  The applicants’ case is that the applicant husband believed that the Tribunal had been given and considered the information contained in the documents in question.  There would be no want of procedural fairness if the Tribunal had before it, or had access to and looked at, whether in paper or electronic form, all of the documents in question.  The applicant husband conceded that he did not mind whether the Tribunal read the documents in question in paper form or on a computer screen.  He said that what mattered was that the Tribunal considered the documents in question.  Accordingly, there was no denial of procedural fairness simply because hard copies of the documents in question were not ‘before’ the Tribunal.

67                  The applicants have the onus of establishing that the Tribunal did not have regard to the contents of the documents in question.  The applicants invite the Court to draw an inference, from the absence of a reference, in the Tribunal’s reasons, to a document described in Part B of the Decision Record, that the Tribunal did not consider the information contained in that document in making its decision.  The failure by the Tribunal to refer to a document in its reasons may certainly give rise to an inference that the Tribunal did not consider the document to be material (see Minister v Yusuf (2001) 206 CLR 323 at 346 par [69]).  However, such a failure does not necessarily give rise to the inference that the Tribunal did not have regard to the document, in circumstances where it was available to the Tribunal, albeit only electronically and not in the form of a copy given to the Tribunal by the secretary of the Minister’s department. 

68                  There are other explanations for the failure to refer to the documents.  Thus, in the Relevant Decision, the Tribunal in its reasons (at p 12) referred to the situation in Sri Lanka in the following terms:

‘A feature of political life in Sri Lanka has been the prolonged, armed insurrection since the early 1980s by militant separatist Tamils, in particular the LTTE which dominated the Jaffna peninsula in the north of Sri Lanka.  After violence in July 1983 there was a proliferation of armed militant groups and increased militancy was met with increasing ferocity by the security forces; militants, particularly the LTTE, began to attack Sinhalese civilians and as a result thousands of young Tamil men were detained by the security forces and many disappeared in custody.  By mid 1985 the armed militants had the upper hand in the Jaffna peninsula and tolerated no dissent within the Tamil community, relying on intimidation and killing to maintain their hold. In 1987 the IPKF arrived in support of the Sri Lanka security forces against the LTTE.  With the withdrawal of the IPKF completed by March 1990 the LTTE moved in and took control.  In June 1990 the LTTE broke a ceasefire and “Eelam War II” began but the north remained under LTTE control and administration.  A 3 month cease fire was broken by the LTTE in April 1995 and “Eelam War III” began.  In a major military offensive, Government forces took Jaffna City in December 1995 after the LTTE abandoned the city and almost the entire civilian population fled; hundreds of thousands of Tamil civilians who had lived under LTTE administration and control for many years were displaced although a significant number have since returned to the area.’

69                  After referring to the repatriation of Sri Lankans from Switzerland and other parts of the world, the Tribunal then said (p 15):

‘Security activities in Colombo are aimed at catching LTTE squads which are known to be present in the city.  The first Tribunal’s decision included independent country information about the government’s security measures in Colombo.  The Tribunal accepts that information which is to the effect that everyone is required to produce evidence of their identity at the checkpoints throughout Colombo; those lacking identity cards or other proof of identity and who have no relatives in Colombo or who only speak Tamil are at risk of being detained at checkpoints and Tamils not from Colombo may be questioned about the purpose of their stay and whether their residency in Colombo is registered with the Police.  The authorities also conduct round-ups or cordon and search operations, linked to terrorist attacks in Colombo, in which very large numbers of Tamils are detained until their bona fides are established; those most at risk in security operations are young Tamil men and women recently arrived from the North or the East.  Large scale round-ups ceased for many months in 1998 partly because there had been no major security incidents there since March 1998 but bombings in Colombo in mid 1999 led to the resumption of these operations.  Even so of those arrested around 95 percent are released within 24 hours and of the 5 percent who remain, some may be released within a few days while others may be detained for a much longer period.  The majority of people held under the Emergency Regulations and the Prevention of Terrorism Act are Tamils detained are [sic] suspected of being LTTE activists and some are subjected to torture or severe mistreatment.’

70                  Thus, the Tribunal had regard to the position of Tamils in Sri Lanka, although it concluded that Tamils having the profile of the applicants were not at risk. None of the material contained in the documents in question related specifically to the applicants.  On the other hand the documents in question refer in some detail to instances of human rights abuses in Sri Lanka.  Thus, the documents contain references to extra judicial killings, disappearances, torture, detentions and forced conscription by Tamil militants.  They also refer to terrorist activities of the LTTE.  Reference is also made to activities on the part of the security forces, especially in the east and north.  Detailed reports of torture and other cruel, inhuman and degrading treatment and punishment by the security forces are reported in some detail.  The documents also refer to the security checks through which travellers to the north of Sri Lanka must pass and to the conditions of persons in temporary camps where many people are required to live.  The documents also contain reports concerning the activities of security forces in relation to Tamil residents of Colombo.

71                  The thrust of the applicants’ case was that they feared persecution as being Tamils who were failed asylum seekers and who had some association with the LTTE because of the applicant wife’s sister.  Those were the issues upon which the Tribunal concentrated.  It is possible that the Tribunal concluded that material such as that contained in the documents in question, which are no later than 1997, was of no great significance in relation to the issues facing the applicants if they returned to Sri Lanka in 2001. 

72                  It is a reasonable possibility that the Tribunal did not regard the contents of the documents in question as being material to the applicants’ case, because, while that material demonstrates serious human rights abuses in relation to Tamils, both by the LTTE and the authorities, the applicants do not fit the profile of those who are at risk.  The documents in question do not suggest that all Tamils are at risk simply because they are Tamils.  The documents do not suggest that a connection with the LTTE as remote as that resulting from the position of the applicant wife’s sister places the applicants at risk. 

73                  While it is common ground that physical or hard copies of the documents referred to in Part B of the Decision Record were not given to the Tribunal by the secretary of the Department, the evidence is not such as to lead to a positive conclusion that the Tribunal did not consider the contents of the documents in question.  Indeed, the Tribunal referred to two of those documents in its reasons.  I do not consider that the applicants have established, on the balance of probability, that the Tribunal did not have regard to the documents in question. 

IRRELEVANT CONSIDERATIONS

74                  The applicants claim that the Tribunal took into account irrelevant considerations being:

• the length of time that the applicant wife had been away from Sri Lanka;
• the fact that the applicant wife’s passport showed only her married name;
• the fact that the applicant husband had never met the applicant wife’s sister;
• the lack of current knowledge about the rank in the LTTE of the applicant wife’s sister and her present whereabouts.

75                  However, those matters are capable of having a bearing on the likelihood that either the Sri Lankan authorities or the LTTE would have an interest in the applicants upon their return to Sri Lanka.  Certainly, the Tribunal had to assess the real chance of whether the Sri Lankan authorities would be likely to take action against the applicants by reason of the connection that they had with the wife’s sister.  Nevertheless, a decision maker does not take an irrelevant consideration into account simply because it gives greater weight or cogency to particular evidence than it might have. 

76                  The Tribunal in fact had regard to the claims concerning the applicant wife’s sister.  However, it did not consider that it was plausible that the authorities or the LTTE would be interested in the applicants, because of the remoteness of the connection.  The applicant wife said that she believed that her sister held a senior position but was unable to be specific since she had not had dealings with her sister since she joined the LTTE.  She had been in Switzerland from before the time when her sister was involved with the LTTE.

77                  The finding by the Tribunal was open to it on the evidence before it.  The contentions on behalf of the applicants constitute an attempt to revisit the fact finding process that led to the Tribunal’s conclusion that there was no likelihood that the applicants would be of interest simply because of the involvement of the applicant wife’s sister with the LTTE.  Having regard to the matters described above, that fact finding process did not involve taking into account irrelevant matters. 

78                  The applicants also complain of the fact that the Tribunal had regard to the earlier findings made by the Tribunal, differently constituted, that led to the decision of 22 February 2000, which was set aside by Moore J on 2 August 2000.  It is difficult to see any substance in the complaint.  The Tribunal referred to what the applicants themselves had said at the earlier hearing.  What the applicants had said at an earlier hearing could well be relevant to the decision that the Tribunal was subsequently called upon to make. 

79                  The Tribunal also referred to independent country information to which reference had been made in the earlier decision.  For example, the passage from the Tribunal’s reasons for the Relevant Decision cited at pars [69] and [70] above may be founded upon the findings made by the earlier Tribunal concerning Sri Lanka.  However, it was not suggested that the findings were wrong.  I do not consider that the references made by the Tribunal to the reasons for the earlier decision constituted taking into account irrelevant considerations. 

BIAS

80                  The applicants complain about remarks made to the applicant wife by the Tribunal in the course of an oral hearing conducted on 6 February 2001.  These complaints appear to me to be without foundation. 

81                  The applicant wife gave evidence before the Tribunal through an interpreter.  She told the Tribunal that, if she went back to Sri Lanka, she would be taken for an interview by ‘the immigration’ and that there would be masked persons in the queue who would then identify her.  She said that they would inquire about her sister joining the LTTE movement.  She said that any Tamil person, if suspected by the Sri Lankan authorities as someone connected with the LTTE movement, would be at risk.

82                  The Tribunal then asked the applicant wife whether she had any evidence to support those claims about what might happen to her, and why, if she returned to Sri Lanka.  She was asked whether she had any evidence that the army would suspect that she and her children were Tamil Tigers just because they lived overseas.  She was asked whether she had any evidence that the Tigers would try to recruit her children or any evidence that she would be persecuted or tortured just because she is a Tamil returning from overseas.  The applicant wife responded by referring to newspaper reports that she had brought to the hearing saying ‘I have come to know that things are happening in the manner I have described in Sri Lanka’.

83                  The Tribunal then (at p 14) said the following:

‘Now it’s not supported by independent evidence.

In particular, there have been thousands of Tamils over the through [sic] the nineties who have returned to Sri Lanka from India, for example.

And of the nearly at one stage I think some years ago there were nearly thirty thousand returned and only sixteen had any sort fo [sic] problem and that was just in one particular [unclear].  Many Tamils who have obtained permanent residency in other countries go back to Sri Lanka for holiday or family or business reason and don’t have any problems [unclear] passport they can prove where they have been.

The treatment just let me make this point, the treatment of the airport if people are detained and questioned because they don’t have travel documents or have false travel documents.

Or may be they are suspected and are in a wanted list or they escaped before they could be arrested.  Even the some hundreds of Sri Lankan who were deported from Switzerland there is very very rare isolated instance of anybody having any trouble when they went back and hundreds have gone back from Switzerland and more from Germany and France and other places they have gone back from.

And they the people who are most likely to have a problem are people who left Sri Lanka fairly recently.  Nobody is going to remember no one cares what happened twenty years ago.

Even people picked up in Colombo in checked at check points or rounded up in search operations after terrorist incidents people most at risk are young people, young Tamils recently arrived in Colombo from the north and east, not a middle aged family couple who’d been living in Switzerland for the last sixteen years.

Even in those situations most people are released fairly quickly, and it’s only people who can’t explain themselves what they are doing there and who are in the suspect profile that might be detained long or mistreated.  The Sri Lankan authorities are very well aware and understand that anybody who lived in Jaffna when the LTTE controlled that area would have had to do things for the LTTE or would have the LTTE would have tried to get them join that organization.  That doesn’t make them suspect now.  Also its well known that including by the Sri Lankan authorities that Sri Lankan people living overseas particularly in Canada, Australia, Britain, Switzerland, Germany, Italy have money extorted from them by the LTTE, not just Tamil people Sinhalese people as well.  And they don’t therefore automatically suspect somebody who then comes back to Sri Lanka of being an LTTE activist or supported just because they had to they had money extorted.  And the advice from the Australian Department of Foreign Affairs Trade in Colombo is that Sri Lankan [sic] is safe for people who have tried to seek asylum overseas and have not succeeded and have returned.  And given your situation that you had been out of the country for so long I think it is totally implausible that anybody would suspect you of links with the LTTE.  You haven’t seen yours sister in for sixteen eighteen years.  She joined the LTTE a decade ago.  But there is no evidence at all to suggest that you know anything about her or providing information about her.

As you know Colombo has a huge Tamil population something close to the order of half a million Tamils in Colombo alone.

And it seems to me that you could settle in Colombo, where there is a very large Tamil population.  You don’t fit the profile of Tamils likely to be suspected by the LTTE and it seems to me that the fact that you lived overseas and you can prove that very easily, you will be going back on travel documents.  Your identity is established.  I can’t see that you will have any problems.

If you had any problems for example even in the unlikely event that you had any problems from the LTTE in Colombo with the children there is no evidence to suggest that you know you would not be able to report the matter to the police and [unclear].  And the information that you submit doesn’t there is no evidence that all Tamils are at risk.   Now do you want t9 [sic] think about those things or do you want to say anything about them?’

84                  Shortly after saying that, the Tribunal said:

‘…I don’t think it’s plausible because you left the country six years before your sister joined the Tigers.  You haven’t had contacts with her for a long time and you haven’t had any contacts with her since, and its just not plausible.’

Through the interpreter, the applicant wife said:

‘Although I say that I have no connection whatsoever with my younger sister Sri Lankan authorities will not believe that.  They will say or they will think that I am just lying to prevent me but they will not believe what I say they will have the suspicion that I had been communicating with my sister.’

The Tribunal said:

‘As I said for the reasons I have already said I don’t find that plausible.  Is there anything else…?’

85                  Later, the following exchange occurred:

Interpreter:       ‘If I explain in this manner, that is prior to 95 and 96 the LTTE organization was not well organised as a Tiger movement in Switzerland.  They were able to collect money collect money and establish themselves only after 95 or 96.  Then only they established them.  Before that we did not have problems with them.  That is why we were able to return to that country, but later when they established well there we faced problems with them.’

Tribunal:           ‘…it makes me hard to believe anything that you say because you say because your original statement was full of problems that you claimed to have had with the LTTE before up to January 96 as well as after that.  I mean I am talking about the LTTE in Switzerland.’

86                  After a further exchange concerning the activities of the LTTE in Switzerland, the Tribunal asked the applicant wife whether there was anything else.  She responded:

‘Now, I want to explain this to you that is when I was in Switzerland when I try to escape or to take security in country like Germany, that also bordering country to Switzerland, from there when I want to take security for myself and others France, all these were neighbouring countries of Switzerland and these people were able to get their things done quickly by giving information either to Germany or France which were neighbouring countries.  But as far as Australia is concerned it is a continent, large continent entirely separated from that part of the world.  So that’s what I thought here I would have more freedom.’

The Tribunal then asked the applicant wife again whether there was anything else.  The applicant wife responded reiterating that she wished to remain in Australia.

87                  The applicants assert that those exchanges indicate that the Tribunal had closed its mind to the applicants’ case and had already decided it.  They say that actual bias is therefore established.  Alternatively, they say that the remarks of the Tribunal demonstrate that there was a possibility that the Tribunal might not be bringing an impartial mind to the question to be determined by it.  They contend that a properly informed fair-minded person would infer from those exchanges that there was nothing that could be said on behalf of the applicants to change the Tribunal’s preconceived views. 

88                  I do not consider that there is any substance in the claim of bias, whether actual or apprehended.  A fair reading of the exchanges between the Tribunal and the applicant wife suggests that the Tribunal was doing no more than indicating to the applicant wife in clear terms the concerns that the Tribunal had concerning her case.  The applicant wife was being given a fair opportunity to respond to the Tribunal’s concerns. 

89                  The Tribunal accepted the accounts given by both the applicant wife and the applicant husband of their experiences in Sri Lanka in the early 1980s before they went to Switzerland.  Much of what they said took place in Switzerland was also accepted by the Tribunal.  However, the Tribunal did not accept that any fear of persecution that the applicants had if they returned to Sri Lanka was well founded.  The Tribunal was entitled to test the applicants’ case albeit fairly and in a manner that was not overbearing.  There was no complaint by the applicants that they were overborne by the approach taken by the Tribunal in the course of questioning. 

90                  A Tribunal, in hearing evidence from an applicant, is not bound to desist from thinking about the issues until after all of the material before it is complete.  The Tribunal is not bound to be silent in the course of a hearing but is entitled to exercise its inquisitorial function by asking questions and testing an applicant’s case.  It is appropriate to put to an applicant tentative views formed on matters in issue in order to give the applicant the opportunity to deal with them.  I do not consider that the Tribunal was doing any more than that in the exchanges in question. 

CONCLUSION

91                  I do not consider that any of the grounds set out in the points of claim has been established.  It follows that the Relevant Decision is a privative clauses decision and, accordingly, no constitutional writ relief is available.  There has been no argument as to whether the basis for an order nisi has been made out.  However, on the basis of the affidavit of the applicant husband, an arguable case for relief was made out.  Nevertheless, I do not consider that a case for an order absolute has been made out.  An order absolute should be refused.  The applicants should pay the Minister’s costs. 

Associate:

Dated:              31 May 2004