Applicant M189 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 131 (17 May 2004)

Last Updated: 17 May 2004

FEDERAL COURT OF AUSTRALIA

Applicant M189 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 131

Abeysinghe v Minister for Immigration and Multicultural Affairs [2001] FCA 1201 cited
Abeysinghe v Minister for Immigration and Multicultural Affairs [2002] FCAFC 511 cited
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 201 ALR 327 cited
Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 cited
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 cited
NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297 applied
Applicant S442 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 28 applied
Applicant 498 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 106 applied
Commissioner for Australian Capital Territory State Revenue v Alphaone [1994] FCA 1074; (1994) 49 FCR 576 applied
Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 applied










APPLICANT M189 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V1042 OF 2003

BLACK CJ, SUNDBERG and HELY JJ
17 MAY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1042 OF 2003

BETWEEN:	APPLICANT M189 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	BLACK CJ, SUNDBERG and HELY JJ
DATE OF ORDER:	17 MAY 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed as incompetent.
2. The applicant pay the respondent’s costs of the purported appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1042 OF 2003

BETWEEN:	APPLICANT M189 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	BLACK CJ, SUNDBERG and HELY JJ
DATE:	17 MAY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1 The applicant is a citizen of Sri Lanka. He arrived in Australia in March 1995. In June 1997 he applied for a protection (class AZ) visa. A delegate of the first respondent refused to grant the visa. On 16 November 2000 the Refugee Review Tribunal affirmed the delegate’s decision. An application for review of the Tribunal’s decision was dismissed: Abeysinghe v Minister for Immigration and Multicultural Affairs [2001] FCA 1201. An appeal to the Full Court was dismissed: Abeysinghe v Minister for Immigration and Multicultural Affairs [2002] FCAFC 511. The High Court refused an application for special leave to appeal. By a proceeding in the High Court commenced on 11 November 2002 the applicant then sought orders nisi for constitutional writs in respect of the Tribunal’s decision. That application was remitted to this Court. The primary judge dismissed it. The applicant purports to appeal from that decision.

2 In his visa application the applicant claimed that between 1992 and 1994 he befriended a Tamil student whom he invited to live with him and his mother. He said he sympathises with the Tamil cause in the separatist war. One day in October 1994 the friend was taken into custody by the security forces. Two days after the arrest security personnel searched the friend’s room in the applicant’s house and found pamphlets relating to the LTTE guerrilla war. The applicant claimed that he and his mother were assaulted by the searchers, and that he was taken away for questioning, and was beaten and tortured for a week while being questioned about his connection with Tamil separatists. He was then released. He claimed that he came to Australia because he feared for his life in Sri Lanka. Before the Tribunal the applicant repeated the above claims. He added that the Tamil friend lived with him for two or three months from the middle of 1994. He knew the friend’s first name but not his second. According to the Tribunal he said "it was usual not to know a Tamil person’s second name".

3 The Tribunal understood the applicant’s case to be that by associating with a person connected with the LTTE, he was imputed with an LTTE profile himself. However it did not accept his central claim that he had a Tamil friend who lived with him, who was arrested as a terrorist and had disappeared. The Tribunal noted that the applicant had presented no independent evidence to indicate that the friend existed, had been detained by the authorities, was shown to have some connection with the LTTE, or had disappeared as a result of his arrest.

4 After referring to the applicant’s claims in his visa application about the arrest of the friend and the visit of the security forces some days later, the Tribunal set out the claims made on these matters at the hearing:

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

5 The Tribunal found the applicant’s account unconvincing, and explained why in these terms:

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

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

Since the Tribunal did not accept that the applicant came to the attention of the authorities through his friend, it did not accept that he was detained and tortured. It rejected other claims which it found unconvincing and implausible, including a claim that he had been pursued by the LTTE because of real or imputed anti-LTTE views. It concluded that it was not satisfied that he had ever been pursued by the authorities by reason of his imputed support of the LTTE or by the LTTE because of real or imputed anti-LTTE views. Accordingly it found that there was no real chance that the applicant would be persecuted for either of these reasons, or for any other Convention reason, if he were to return to Sri Lanka.

6 Before the primary judge the applicant attacked the Tribunal’s decision on the ground that he had been denied procedural fairness in that the Tribunal had not, in the course of the hearing, informed him of adverse conclusions at which it arrived that would not obviously be open on the known material. There were three matters the applicant complained of:

(a) there was no inconsistency in his account of how he came to learn of his friend’s arrest, and had he been alerted to the Tribunal’s concern about inconsistency, he could have disposed of it;
(b) in the period immediately following the friend’s arrest the applicant did not know why the arrest had taken place or that the friend was connected with the LTTE, and accordingly the failure to search the friend’s room on the basis that he was so connected was an adverse conclusion not obviously open on the known material;
(c) the Tribunal did not raise with the applicant the importance it attached to his lack of knowledge about the friend.

7 Before dealing with these three matters, the primary judge set out his understanding of the requirements of procedural fairness applicable to the applicant’s complaints. Those most directly relevant to the present case are:

•	the decision maker must alert the person affected to any issue critical to the decision that is not apparent from its nature or the terms of the statute under which it is made
•	the decision maker must draw attention to any adverse conclusion it has arrived at that would not obviously be open on the known material
•	the decision maker is not obliged to expose his or her mental processes or provisional views before coming to the decision.

In this connection his Honour referred to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 201 ALR 327 at [22], Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187] and Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [54] and [58].

8 The primary judge observed that the applicant was aware that in order for his claim to succeed the Tribunal had to accept that he had a Tamil friend who had disappeared in the circumstances he described. That issue had been squarely raised with the applicant and he had been given an opportunity to advance whatever evidence or arguments he wanted to in support of his claim. There was, his Honour said, no obligation on the Tribunal to tell him that it had concerns about the adequacy of his answers to questions.

9 As to complaint (a) above, the primary judge said:

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

The primary judge had earlier set out the exchange. It is lengthy and we will not repeat it.

10 As to complaint (b) his Honour said:

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

11 As to complaint (c) the primary judge said:

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

12 His Honour concluded his judgment as follows:

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

13 In view of this conclusion it was unnecessary for his Honour to consider whether there should be an enlargement of the time in which to commence the proceeding. See Order 55 rules 17(1) and 30 of the High Court Rules. Nor did he need to consider whether the applicant was estopped from pursuing the application by reason of the determination of the earlier proceeding in this Court. See [1].

14 The applicants purported Notice of Appeal contains two grounds:

"1. His Honour erred in failing to find that the RRT had erred ... by requiring the applicant to produce independent evidence of his claims before it would accept them.
2. The decision ... was made in breach of the rules of natural justice."

15 On 10 February 2004 Black CJ ordered that the applicant file any application for leave to appeal by 27 February 2004. That order was made because the primary judge’s dismissal of the application for orders nisi was an interlocutory order: NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297; Applicant S442 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 28; Applicant 498 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 106. The Chief Justice also ordered that any application for an extension of time for leave to appeal be filed by 27 February, and that any application for leave be accompanied by a Notice of Appeal "stating precisely and specifically the grounds of appeal to be relied on, including full particulars of those grounds". Orders were also made for the filing of outlines of submissions.

16 The applicant has not applied for leave to appeal or for an extension of time. He has not filed a draft Notice of Appeal pursuant to the Chief Justice’s order. Nor has he filed any outline of submissions. He did not appear last Friday when the matter was called. The respondent has filed a notice of objection to competency on the ground that the applicant has neither sought nor obtained leave to appeal. There being no application for an extension of time for leave to appeal and no application for leave, the purported appeal must be dismissed as incompetent.

17 In any case, had we extended time, we would have dismissed any application for leave to appeal. The authorities referred to by the primary judge support the procedural fairness propositions he propounded, in particular the central propositions we have set out at [7]. Accordingly, his Honour properly instructed himself as to the law.

18 The primary judge correctly said that the crux of the applicant’s case was that he had taken in a Tamil friend who had later been arrested and had not thereafter been heard of. His Honour also correctly said that the applicant was aware that in order for him to succeed in his visa claim, the Tribunal had to accept his account of the friend and his fate. Thus the Tribunal member said this to the applicant:

"So the things I have really got to think about in relation to your story is how plausible I find it, that you would have taken in a Tamil person and that even if that did occur whether or not you would be subjected to harassment from the authorities or from the LTTE because of that. That is the crux of the matter.
...
I have really got to consider in relation to your case, I have really got to consider how plausible I find the story you have told me.
...
That is the crux of the matter, based on looking at a range of country information – I have alerted you to a couple of things – but based on that country information and the range of issues we discussed. That is what I am going to have to decide."

The applicant said he understood what had been put to him. The things the Tribunal member alerted the applicant to included country information that it was implausible that a Sinhalese would support the LTTE, the ease with which the applicant had obtained a passport and left Sri Lanka, why the applicant had not registered the friend at the local police station, and why he had not reported the friend’s disappearance to the police.

19 The applicant’s claim that he was not given the opportunity to dispel the Tribunal’s concern about the inconsistency in his evidence about the circumstances in which he became aware of the friend’s arrest has no substance. The applicant first said that the day after the friend disappeared he asked people in his classes what had happened to him. Later he said he had been told of the arrest by another friend who was on the bus in which the Tamil friend was travelling when he was arrested at a checkpoint. The Tribunal saw these accounts as conflicting, and said to the applicant

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

The applicant’s response was not very informative:

"Because next day I have classes anyway, so I thought if I go [to] classes I can meet some friends, because I didn’t know – I know Tamil – I have Tamil friends but I don’t have good relationship, deep relationship with them because I don’t go to most houses, Tamil friends houses ...."

What matters is not whether the applicant satisfactorily resolved the Tribunal’s concerns, but whether he was afforded the opportunity to do so. The Tribunal clearly expressed its concern. The transcript discloses that the applicant spoke adequate English, and had no difficulty understanding points put to him by the Tribunal. As the primary judge said, the applicant was asked to clarify his evidence on this issue, and that "it could not be said that he was not aware that the Tribunal was concerned about the consistency of the evidence". See [9]. His Honour’s decision on this part of the case is not attended by any doubt at all.

20 We turn to the applicant’s claim that the Tribunal did not raise with him the importance it attached to his lack of knowledge about his friend. The Tribunal asked what part of Sri Lanka the friend came from. At first the applicant simply said "another part", and when pressed again responded "another part". Then he said the friend was from "northern province – is called Vavuniya or somewhere". When asked for the friend’s last name, he said he didn’t know, despite having just described the friend as "my very good friend actually at that time". His explanation for not knowing the last name was:

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

The Tribunal also asked the applicant whether he had registered the friend with the local authorities, and when he said he had not, put to him country information that when a person has a Tamil staying with him, this must be registered with the authorities. His response was that this was not the case at the time in question. Pressed on the position in 1995, the applicant said he didn’t know. The Tribunal also asked questions about Vavuniya, whence the applicant said the friend hailed. The applicant had said his friend had told him his family house had been burnt by the government forces. The Tribunal expressed doubt about this claim, saying that it had heard quite a lot of cases on Sri Lanka and had never heard of government forces burning buildings in Vavuniya.

21 In the light of these matters, the submission that the Tribunal did not raise with the applicant the importance it attached to his lack of knowledge of his friend has no basis. As the primary judge said, the Tribunal raised its doubts with the applicant in a manner that showed it was interested in the extent of his knowledge of the alleged friend. Indeed the Tribunal’s repeated remarks that it had to decide whether the applicant’s account was plausible could have left him in no doubt that it was concerned about the paucity of his knowledge of his "very good friend" whom he had known for five or six months, and who had stayed with him and his mother for two or three months. The primary judge’s rejection of this ground of review is not attended by any doubt.

22 The Tribunal did not put to the applicant that it had any concern about the fact that he did not search his friend’s room until a few days after the friend’s arrest, when the security forces searched it and found incriminating pamphlets. In Commissioner for Australian Capital Territory State Revenue v Alphaone [1994] FCA 1074; (1994) 49 FCR 576 at 591-592 the Full Court said:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question."

This passage was quoted with apparent approval by Gleeson CJ, Gummow and Heydon JJ, with whom McHugh J agreed, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 201 ALR 327 at 22, and was cited with approval by Gummow and Heydon JJ, with whom Gleeson CJ agreed, in Re Ruddock; Ex parte S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [48] and [54]. In Ruddock at [54] their Honours said:

"The tribunal member was not obliged to set out every detail of the reasoning process which he eventually employed for the prosecutrix’s consideration."

23 The applicant’s failure to search the friend’s room was not an issue critical to the Tribunal’s decision. The critical issue, which was amply put to the applicant, was whether his account about the friend and what happened to him was plausible. Nor was the "search" point an adverse conclusion which, by the time of the interview, the Tribunal had formed. As appears from [19], the Tribunal put to the applicant many matters for comment. The proper inference is that, at that stage, the Tribunal had not formed even a provisional view about the search point. In those circumstances, the applicant’s contention involves the Tribunal disclosing to him every detail of the reasoning process involved in the credibility/plausibility reasoning process which it "eventually employed" in its reasons for decision. See Re Ruddock above at [54]. This it was not obliged to do. We do not regard the primary judge’s treatment of this issue as attended by sufficient doubt to justify its reconsideration by a Full Court.

24 The complaint that the Tribunal required the applicant to produce independent evidence of his claims before it would accept them has no substance. The Tribunal noted, as was the case, that the applicant had presented no independent evidence that the friend existed, was detained by the authorities, had some connection with the LTTE or disappeared as a result of his arrest. He had not produced press reports or reports from human rights groups about the detention or disappearance. The Tribunal went on to say that the applicant’s personal account of his claims in relation to the friend were not convincing. It mentioned how little he knew about the friend, the inconsistent accounts about his discovery of the arrest, and his failure to look for incriminating material in the friend’s room before the security forces arrived. It was on this basis that it rejected the applicant’s claim that he came to the attention of the authorities through the friend. The Tribunal did not require him to produce independent evidence. It merely noted that none had been produced, and then rejected the applicant’s claim because it did not believe him, for the reasons it gave. The applicant has no prospect of success on this ground, which does not appear to have been raised before the primary judge.

25 The other matter that must be considered on an application for leave to appeal is whether substantial injustice would result if leave were refused, supposing the decision to be wrong. As the Full Court said in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 399, the two issues (doubt and substantial injustice) bear upon each other. Having regard to the clear view we have reached on the first issue, it is somewhat artificial to suppose that the decision below is wrong. Accordingly we do not consider that substantial injustice would result from the refusal of leave. It is therefore unnecessary for us to consider the question of estoppel.

26 For the above reasons, had the applicant successfully applied for an extension of time in which to seek leave to appeal, we would have refused any application for leave. In the circumstances, however, the only order we need make is that the purported appeal be dismissed as incompetent because leave to appeal was required and no leave was granted, the applicant not having applied for an extension of time in which to seek leave.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and Justices Sundberg and Hely.

Associate:

Dated: 17 May 2004

The applicant did not appear.

Counsel for the Respondent:	W Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 May 2004
Date of Judgment:	17 May 2004