FEDERAL COURT OF AUSTRALIA

SZOZU v Minister for Immigration and Citizenship [2011] FCA 1005

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an appeal from a decision of the Federal Magistrates Court refusing constitutional writ relief to the appellant from a decision by an independent merits reviewer advising the Minister: SZOZU v Minister for Immigration [2011] FMCA 393. The sole issue in the appeal is whether the trial judge erred in failing to find that the reviewer’s recommendation was affected by a jurisdictional error amounting to a breach of the fair hearing rule of the rules of procedural fairness. The circumstances in which this alleged error occurred are in narrow compass.

2    Essentially, the appellant complains that the reviewer ought to have given him the opportunity to deal with what the reviewer ultimately found about a corroborative letter from a member of the Sri Lankan Parliament, namely, that the Parliamentarian was simply retelling events that had been described to him by another person from the original perspective of the appellant. The reviewer rejected the central part of the appellant’s claims and went on to find that the Parliamentarian’s letter ought be given no weight.

3    It is common ground that the appeal and the proceeding below involve the application of the common law principles and not those that have been refined and attenuated under the various and many amendments to the Migration Act 1958 (Cth): Plaintiff M61/2001E v Commonwealth (2010) 272 ALR 14.

The appellant’s relevant claims

4    The appellant applied for a protection visa. He claimed to fear persecution in Sri Lanka by its authorities, including its army and paramilitary groups, by reason of his involvement with a political party known as the Tamils National Alliance (Alliance), i.e. on the ground of political opinion for the purposes of the Convention Relating to the Status of Refugees. He claimed that he had a well-founded fear of persecution based on what he had done in the 2001 election campaign to expose the activities of the People’s Liberation Organisation of Tamil Eelam, known as PLOTE, and/or the army as a result. The appellant also had other claims that are not relevant to consider for the purpose of his appeal.

5    The appellant claimed to have played a role as a canvasser, meeting organiser, and right-hand man or personal assistant of an Alliance candidate in the 2001 parliamentary elections, but did not claim to have suffered or to be facing persecution in Sri Lanka merely for having supported the Alliance to the extent of his role as I have described. His claimed fear, arising from his claimed conduct in respect of PLOTE, was based on the fact that more active and prominent Alliance figures had been recently harassed by their political opponents.

The proceedings before the Reviewer

6    The reviewer conducted a hearing at Christmas Island where the appellant was being held, and the appellant gave evidence to him. The reviewer accepted that he may have supported the Alliance at some stage, and that it had his moral support. He found that the appellant did not claim to fear persecution simply for that reason, and that he would not, in fact, be at risk of persecution on that basis.

7    The reviewer found that the appellant’s self-description of his role in 2001, when he was about 18 years old, that he was a “brilliant political cadre”, was unreliable, and more than the product of mere embellishment. He found that all the appellant said in answer to a question as to how his talent became apparent to his employer was that he had been introduced to the election candidate by his uncle.

8    The reviewer found that the appellant was vague in giving details of his work for the Alliance, and he was unable to provide any evidence of his membership or position in it because he said the Alliance did not record names of its members. The reviewer considered that to be a far-fetched explanation by a person who had claimed that his job had been to contact people for meetings. The reviewer considered that a candidate’s right-hand man, at an election of the significance of the 2001 poll, would have been able to present a higher standard of consistent evidence than the appellant had given to the reviewer, particularly in light of the appellant’s claims to have supported the Alliance over a number of years.

9    The reviewer then came to consider the Parliamentarian’s letter. The letter relevantly stated:

“To Whom It May Concern;

[The appellant] is known to me. He was canvassing for the Tamils National Alliance in 2001 parliamentary general election and he faced threats from opposite party members to his life on several occasions as he had prevented them from ballot rigging on the election day. Due to the threats he received from opposite party members and supporters he had to live hidely in […] till 2005 and then returned to […] where he was hotly pursued by armed groups. On […] 2005 the army rounded up his village in pursuit of him. However he escaped and went to […] again where he was arrested by the army on the suspicion that he has link with L.T.T.E. He was released by them after interrogation. He had made a complaint in the Human Rights Commission under reference No. […] mentioning that he has threats from army. For the fear of being abducted by the armed forces he left Sri Lanka for India on […] 2007.

Though the civil war has come to an end in the North of Sri Lanka the situation did not come to normal. Still the Tamil youngsters are suspected by the Police and Security Forces. In this situation it is dangerous to [the appellant] to come back to Sri Lanka.”

10     The reviewer assessed the letter, finding that although it was not dated, it was probably very recent, and confirmed that the author’s name was consistent with that of the current member of Parliament for the region from which the appellant claimed to have originated. The reviewer said that the main problem that he had with the letter was not a question of its authorship, but whether he could rely on its content as independent evidence of any, or all, of the facts it contained. The appellant had not suggested that he had ever worked with the author of the letter in the past, and the author had not stated how the appellant had been known to him.

11    The reviewer found that the author had not confirmed that the appellant was a member of the Alliance or on the staff of the Alliance election candidate, but the reviewer acknowledged that the letter stated that the appellant had canvassed and monitored a polling booth in 2001, exposing an attempt at electoral fraud. The reviewer stated that the appellant had given evidence that the best way to prove membership of a party was to get a friend in the party to write a vouching letter, apparently like that from the Parliamentarian. The reviewer observed that that would open up the question of how much the reviewer could rely on a letter from a friend when the appellant’s own claims were vague and lacking an air of reality. However, the reviewer did not find, when making these observations, that the Parliamentarian’s letter had been written by a friend. Next, the reviewer went on to make what the appellant regards as the critical findings concerning the letter in the following paragraph of his reasons:

“Looking at the letter in detail, none of it reads like an eyewitness account; it is not contemporaneous evidence or a contemporaneous account. There is no suggestion in the letter as to how other [sic] author has independent knowledge of the facts contained in it. I am of the view that the author is retelling events that have been described to him, true or false, by another person or persons. I consider it reasonable to be cautious about relying on the word of an author, even a local public office holder, doing this in an undated recent letter. On reading the letter, considering how it covers events in different cities over about a decade, it strikes me as having been recounted to the author from the one source. Nothing suggests to me that he has received the information over time from a range of sources. The recent arrival of the letter on Christmas Island is evidence of recent solicitation and, whereas the mere solicitation of written testimony does not of itself mean that the testimony is false, there is no sense in this case that the details in the letter are presented or recounted from the original perspective of anyone but [the appellant], whose own evidence about his role in the [Alliance] is vague and unconvincing. I am not satisfied that this letter provides reliable independent corroboration of [the appellant’s] claimed involvement with the [Alliance] and his problems with the army and other political entities. Notwithstanding its superficial “consistency” with [the appellant’s] claims, and also notwithstanding that it purports to refer to an official complaint by [the appellant] to the Human Rights Commission, I give this letter no weight.” (original emphasis in italics, bold emphasis added)

The proceedings before the trial judge

12    The appellant argued before his Honour, and again on the appeal, that the statement emphasised above, that the author was retelling events that had been described to him, “true or false”, by another person, suggested that the author and the appellant had been engaged in collusion or fabrication.

13    The primary judge rejected these arguments. His Honour observed that there was no transcript of the appellant’s interview with the reviewer in evidence and that the reviewer’s summary of what had occurred at the interview was unchallenged. His Honour accepted the Minister’s submissions that the appellant had been given the opportunity by the reviewer to deal with adverse material that was credible, relevant, and significant to the decision to be made, including with respect to the critical issue on which the decision was likely to turn. He found that the reviewer had not made any finding (1) of fabrication of the content of the letter; or (2) to suggest that the Parliamentarian acted in a deliberate way to represent something that he knew to be untrue.

14    Rather, his Honour said, a plain reading of the reviewer’s analysis revealed that what he was saying was that the member of Parliament did not know whether what was being asserted in the letter was true or false but that he was, in effect, making representations on behalf of the appellant based on what the appellant had told the Parliamentarian. Accordingly, his Honour concluded that the reviewer was entitled to conclude that the letter did not read like an eye witness account written by the Parliamentarian and, therefore, it ought be given no weight.

15    The trial judge also rejected the appellant’s argument that the reviewer had found that the letter was not genuine or was a forgery or involved fraud in the sense discussed by French J in WAGU v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2003] FCA 912 at [36]. Indeed, the trial judge found that the reviewer accepted that the Parliamentarian was the author of the letter and that there was nothing to suggest, in the sense put to his Honour by the appellant, that the Parliamentarian was party to some collusion or conspiracy to defraud the Australian Government. His Honour found that, on its face, the Parliamentarian had been asked by a person or persons to provide a letter in support of the appellant and that there was nothing to say that the Parliamentarian had not acted in good faith. His Honour rejected the appellant’s reliance on the words “true or false” to suggest that the reviewer had made a finding that the Parliamentarian was complicit in the appellant propounding a false story. He found that, in its context, the phrase was not suggestive of the Parliamentarian’s indifference to the truth, as such, but rather, was a finding that the author could not have known whether the events his letter described had actually occurred or not. In other words, his Honour found that the focus of the words “true or false”, when read in context, was on the events the letter described, rather than an assertion that the Parliamentarian’s state of mind, as their author, was that he was prepared to put them forward as the truth known to him, recklessly indifferent as to whether or not they were facts.

16    His Honour found that the appellant and his advisor would have been on notice and were given the opportunity to address the reviewer on the issue as to whether the appellant’s claims ought be accepted. He found that, when viewed in that light, the reviewer’s approach to the letter in his analysis was no more than an evaluation of a piece of evidence before him to which he assigned no weight, because it could not be seen as anything more than a second-hand recounting of events, i.e., not an eye witness account. Accordingly, his Honour concluded that the reviewer had not failed to accord the appellant procedural fairness in accordance with the common law’s requirements and dismissed the application.

The appellant’s submissions on appeal

17    The appellant’s argument before me was, essentially, the same as he had put to his Honour, although, the appellant did not attack the trial judge’s findings or reasoning process directly. The foundation of the appellant’s argument was that the common law required the reviewer to put him on notice, in the circumstances, that he might ultimately conclude, as the appellant contended happened that, in effect, the Parliamentarian’s letter was a connivance between its author and the appellant that disregarded the truth.

18    Secondly, the appellant argued that the reviewer’s account of the hearing showed that the reviewer had, in effect, put the letter to him in a way that appeared to accept its corroborative effect. This contention was based on a sentence in the reviewer’s account of the interview, namely:

“I noted the undated letter from the current Parliamentarian [from the area from which the appellant claimed to come] saying that [the appellant] was known to him as a canvasser for the [Alliance] who was threatened by “opposite party members” on several occasions as he tried to stop vote rigging on election day.”

19    The appellant argued on appeal, but not before his Honour, that this statement suggested to the appellant during the hearing that the reviewer was accepting that the Parliamentarian knew him as a canvasser and that the appellant had been threatened as described.

Consideration

20    I will first deal with the second argument put by the appellant. I am unable to accept this argument. First, there is no transcript of the hearing conducted by the reviewer. Secondly, if this new argument were relevant, it ought to have been raised below. No explanation has been given why it was not, in circumstances where the appellant has been represented at all times in the Court process: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. Thirdly, I am not satisfied that the paraphrase of the letter in this part of the reviewer’s decision necessarily represents an accurate recounting by him of what was said during the hearing. The reasons of an administrative decision-maker should not be “… construed minutely and finely with an eye keenly attuned to the perception of error” on judicial review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

21    Indeed, it is clear from the letter itself that the Parliamentarian was not expressly stating the capacity in which he knew the appellant. The reviewer had also found that the letter had been recently solicited and inferred that the appellant had been the source of the solicitation. Importantly, the reviewer acknowledged that the mere solicitation of written testimony did not of itself mean that the testimony was false, but continued, in the passage that I have also emphasised from the critical portion of it account of the interview that:

“There is no sense in this case that the details in the letter are presented or recounted from the original perspective of anyone but [the appellant], whose own evidence about his role in the [Alliance] is vague and unconvincing.”

22    The reviewer then went on to find, that he was not satisfied that the letter provided reliable, independent corroboration of the appellant’s claimed involvement with the Alliance and his claimed problems with the army and other political entities.

23    The appellant argued that there was nothing raised in the interview with the reviewer to suggest that the corroborative effect of the letter was in doubt. However, the appellant was on notice from the questioning in the hearing that his essential claims to fear persecution for reasons of his political opinion, that I have outlined, were matters which the reviewer was inquiring into and required the appellant to satisfy him would give rise to a well-founded fear of persecution were he to be returned to Sri Lanka. Accordingly, I am not satisfied that the reviewer put the letter to the appellant in a way that indicated that he was accepting its corroborative effect.

24    During the course of argument, the appellant accepted that the reviewer ultimately could have arrived at a conclusion that the letter was to be given no weight. But, he contended that if the reviewer were to arrive at the finding, as the appellant characterised it, that the Parliamentarian was retelling events described to him whether they were true or false, that is, in disregard of their truth, he ought to have been put on notice of that possible finding and been asked to address it in accordance with the requirements of procedural fairness.

25    I reject this argument. There is a distinction which is well established between, on the one hand, the obligation of a decision-maker to accord procedural fairness by identifying to the person affected any issue critical to the decision that is not apparent from its nature or the terms of the statute under which it is to be made and, on the other, to advise of any adverse conclusion that the decision-maker had arrived at which would not obviously be open on the known material: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 590-591 per Northrop, Miles and French JJ. A potential dichotomy may arise between the requirements of procedural fairness and a mere elaboration of a decision-maker’s thought process. And so, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162 [31]-[33], Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ pointed to the need to exercise considerable care in approaching a problem by reference to such a dichotomy. They noted the correct approach was to require the decision-maker ordinarily to give the party affected the opportunity of ascertaining the relevant issues and to be informed of the nature and content of any adverse material. The Court was concerned there with the statutory context afforded by the Migration Act in its then terms. Their Honours pointed out that a decision-maker’s statements or questions during a hearing could sufficiently indicate to an applicant before it that everything he or she said in support of the application was in issue, and that this could be done in many ways. However, as their Honours pointed out (SZBEL 228 CLR at 165-166 [47]-[48]):

“47    … It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

48    Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369,

‘the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.’

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.” (original emphasis)

26    Like the trial judge, I am unable to see that the way in which the reviewer evaluated the Parliamentarian’s letter amounted to a finding of connivance between its author and the appellant, or a rejection of its content on a positive basis that had never been put to the tendering party: see WAGU [2003] FCA 912 at [36]. Rather, the reasoning of the reviewer showed that he evaluated the contents of the letter for its probative effect. The reviewer noted that although the author stated that he knew the appellant, the rest of the letter stopped short of identifying whether what was being recounted in it had as its source the author’s personal knowledge or was of some other provenance.

27    I am of opinion that the reviewer’s use of the words “true or false” were not, on a fair reading, intended to convey that the Parliamentarian was recklessly indifferent as to the truth of the events the letter recounted. A person can repeat another’s account of events, perhaps even believing the other person to be telling the truth, but without any real basis for knowing so. The criticisms which the reviewer made of the letter as a source of corroboration for the appellant’s account were ones that were open to him in the circumstances. The reviewer inferred from all the material before him that the letter had been solicited by someone, and that, in effect, it recounted the appellant’s claims since it dealt with a variety of circumstances raised in the appellant’s claims that had occurred over a long period of time and in different locations. The absence of the Parliamentarian’s source of information for the detail recounted in the letter was obvious on the face of the document. In those circumstances, it was open for the reviewer not to be satisfied that the letter provided “reliable independent corroboration” of the appellant’s claimed involvement in the events that it discussed, particularly having regard to the reviewer’s view that the appellant himself lacked credibility on those very claims.

28    As French J said, corroborative evidence may be rejected as of no weight because it is dependant upon, and can be shown to be undermined by, findings as to the tendering party’s credibility. In such a case as this, a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness: WAGU [2003] FCA 912 at [36].

Conclusion

29    Having considered the appellant’s arguments as best I can, I am not persuaded that the trial judge erred in rejecting the application before him, nor am I persuaded that there was a jurisdictional error in the way in which the reviewer proceeded.

30    For these reasons, I am of the opinion that the appeal fails.

Associate:

Dated:    29 August 2011