Xavier v Minister for Immigration & Multicultural Affairs [2000] FCA 1808

FEDERAL COURT OF AUSTRALIA

Xavier v Minister for Immigration & Multicultural Affairs [2000] FCA 1808

MIGRATION – appeal – protection visa – refugee – decision of primary judge dismissing application to review decision of Refugee Review Tribunal – appellant Tamil citizen of Sri Lanka – whether leave should be granted to raise fresh ground – whether Tribunal failed to make unambiguous finding about appellant's claimed involvement with LTTE

Migration Act 1958 (Cth) s 430(1)

Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 applied JOY DANIEL XAVER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 784 OF 2000 HEEREY, MOORE AND GOLDBERG JJ 15 DECEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 784 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: JOY DANIEL XAVIER

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: HEEREY, MOORE AND GOLDBERG JJ

DATE OF ORDER: 15 DECEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 784 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: JOY DANIEL XAVIER

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: HEEREY, MOORE AND GOLDBERG JJ

DATE: 15 DECEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT:

Introduction 1 This is an appeal by Mr Joy Daniel Xavier ("the appellant") from a judgment of Merkel J dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 12 November 1999. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs of 28 May 1997 to refuse to grant the appellant a protection visa. 2 The appellant arrived in Australia on 7 February 1996. The gravamen of the appellant's claim for a protection visa, as summarised by his counsel in this appeal, was as follows. He is a Tamil from Jaffna. In October 1987, he was orphaned as a result of shelling by the Sri Lankan forces. In 1992 he was drafted into the Liberation Tigers of Tamil Eelam ("the LTTE"), where he performed various non-combatant duties. Following disputes with his Area Commander, he deserted from the LTTE in 1995. With the help of Catholic priests the appellant made his way from Jaffna to Colombo and thence to Australia. He claimed he feared persecution by the LTTE as a traitor were he to return to Sri Lanka because of his desertion. The appellant also claimed he feared being persecuted by the Sri Lankan authorities because of his LTTE activities. An aspect of this latter claim was that while he was not aware of what the authorities knew of his LTTE activities, they have informants within the community and had been regularly interviewing people who crossed between Jaffna and Colombo and would not miss the appellant. The Tribunal's decision 3 The Tribunal did not accept aspects of the appellant's account. The Tribunal made a series of findings about the appellant's claimed role in the LTTE. It found it was implausible that the LTTE would have entrusted the claimed role to the appellant who was a 16 year old. It did not accept that the appellant left the LTTE for the reasons he contended. At one point in its reasons the Tribunal said: "The Tribunal asked the applicant what role he had played in the investigation by the LTTE into the presumed leaking of information before the attack on the Mullaitivu army camp. The Applicant replied that he did what he was told. This is not consistent with the initial claim that his team participated in this investigation the outcome of which was the trigger for his unhappiness with the movement and one of the alleged reasons that he 'deserted'. The Applicant's answers at the hearing did not reflect the claims of not only participation but also importance and responsibility which had been presented originally. The Tribunal finds that the role of the Applicant in LTTE activities has been exaggerated to boost the claim that he would be punished if he were to return to Sri Lanka." (Emphasis added) 4 On three occasions the Tribunal expressed a conclusion to the effect that the appellant was not a member of the LTTE or involved with the LTTE. It first did so in the following passage: "The Tribunal, given the discrepancies, inconsistencies, implausibilities and lack of congruence of the Applicant's claims with the situation in Sri Lanka, does not accept that the Applicant was ever involved with the LTTE as claimed and that his departure from the North occurred as claimed. On the basis of these conclusions the Tribunal finds that there is no real chance of the Applicant being persecuted by the LTTE for reasons of his desertion. Further, on the basis that the Tribunal has found that the Applicant was not a member of the LTTE and has never been of any interest to the authorities, the Tribunal does not accept that the Applicant will be of interest to the authorities on the basis of his alleged LTTE membership should he return to Sri Lanka." (Emphasis added) 5 Later in its reasons the Tribunal said: "The Tribunal is further satisfied that the Applicant would not be persecuted for a Convention reason on return, given it has found that he is not a member of the LTTE or has ever been suspected as a member or supporter and has never been of interest to the authorities. Nor does it accept that he would be persecuted on arrival because he is a young man from the North." (Emphasis added) 6 Towards the conclusion of its reasons the Tribunal said: "The Tribunal finds that, in assessing the Applicant's evidence and claims as well as the country information cited, the Applicant does not face a real chance of being persecuted for his race/ethnicity should he return to Sri Lanka. The Tribunal has not accepted that the Applicant was involved with the LTTE thus it finds that there is not a real chance that the Applicant would be persecuted for reasons of his political opinion should he return to Sri Lanka." (Emphasis added) 7 One specific matter raised by the appellant concerned what might happen to him on his return to Sri Lanka. His claim was that he would, as a young Tamil male (originally from Jaffna) return from overseas to Colombo where he would be at particular risk at the hands of the authorities. On this question the Tribunal said (in a passage which immediately preceded the passage quoted in par 5 above): In respect to his arrival in Colombo, referring to the country information above pertaining to the situation for returnees, which is more applicable to the Applicant as he is not from Colombo, the Tribunal draws the conclusion that the Applicant may well be stopped and questioned at Colombo airport since he does not have extensive documentation but such detention would not constitute persecution as it is a legitimate means for Sri Lanka to deal with its security."

The approach of the primary judge 8 In the application for judicial review three grounds were pressed before the primary judge. The first was a challenge to the basis on which the Tribunal made adverse findings against the appellant's credibility. The second concerned an alleged failure of the Tribunal to comply with s 430(1) of the Migration Act 1958 (Cth) ("the Act"). The third involved an allegation of actual bias. 9 The first ground was based on the Tribunal's consideration of six distinct episodes or matters in the appellant's claims. They were relied upon by the Tribunal to reject the appellant's version of the relevant events. The primary judge noted that when assessing the credibility of an applicant and his or her claims, it was essential for the Tribunal to refer to the nature of the evidence given, the claims made and the history of the matter. The Tribunal could call upon its background knowledge and understanding of country information in the particular case and more generally. His Honour noted also that the Tribunal had to give the applicant an opportunity to address the material before it. 10 The primary judge then considered the specific complaint of the appellant by reference to his general discussion of what the Tribunal needed to do in a case such as the present. His Honour said: "It is plain that the Tribunal did precisely this in respect to the six matters it relied upon in rejecting the applicant's version of events, ultimately making findings about the implausibility of certain of the matters claimed by the applicant. Whilst I have a degree of discomfort about the confidence shown by the Tribunal as to why it concluded that certain allegations were implausible, in the final analysis the primary argument put forward by counsel for the applicant, that in bringing to bear its background knowledge and applying it in this case there was some error of law, must be rejected. It is plain that, subject to the rules of natural justice, to which I will refer briefly below, the question of credibility is essentially an issue of fact for the Tribunal as the arbiter of fact." 11 The question of natural justice was addressed by the primary judge a little later in his reasons. His Honour said: "I briefly referred to the question of natural justice. It is one thing to say that the Tribunal can apply its background knowledge and experience to the issues before it; it is quite another to suggest that it can do so without giving the applicant a fair and reasonable opportunity to deal with those matters. However, no natural justice point or anything akin to it was raised by counsel in this case. There would, in any event, be a serious issue as to whether a denial of natural justice could directly or indirectly constitute a ground of review in this court. Importantly, I do not have the transcript of the hearing before the Tribunal and it has not been suggested in the course of submissions that the applicant did not have a fair opportunity to deal with the gravamen of the matters relied upon by the Tribunal in arriving at its decision." 12 The primary judge summarised be substance of the second ground as involving a contention that the Tribunal failed to make findings concerning the nature and extent of membership or role of the appellant in the LTTE. His Honour noted that counsel for the appellant pointed to comments by the Tribunal about several matters. They were that the Tribunal had said that the appellant was not involved with the LTTE as he had claimed nor that his departure for the North of Sri Lanka occurred as he had claimed but had also said that the appellant's role in LTTE activities had been exaggerated to boost his claim that he would be punished if he were to return to Sri Lanka. Of this contention His Honour said: "Whilst it is true that the Tribunal did not make any final or conclusive findings as to what role, if any, the applicant had with the LTTE, I do not regard that as an error of law nor do I regard it as a failure to comply with s 430 of the Act. The case put by the applicant and the issue raised by the material before the Tribunal was whether his role with the LTTE was as claimed and whether he had a well‑founded fear of persecution by reason of his desertion from the LTTE and his departure from the north as claimed. It seemed not to matter to that claim that the applicant may have had some lesser or other role with the LTTE, if that lesser or other role had not given rise to a well-founded fear of persecution upon his desertion. It was therefore not necessary for the Tribunal, in order to dispose of this matter, to make a finding as to whether the applicant had some lesser or other role in the LTTE. The reason for that is quite simple: it is not suggested that some lesser or other role was such that it would give rise to reprisals. It was not claimed nor does the evidence justify any such issue being raised by the material."

The grounds of appeal and the application for leave to raise a fresh point 13 In this appeal, the appellant contends that the primary judge erred in his consideration of the question of whether the Tribunal was obliged to make unambiguous findings about the nature of the appellant's involvement with the LTTE and failed to do so. The precise ground raised before the primary judge was that the Tribunal breached the duty imposed by s 430 (1) in that it: "(iii) found that it would accept some of the Applicant's claims and find that he was a member of the LTTE but his contribution had been exaggerated and also that he had never been a member of the LTTE." The way it is now put is that the Tribunal failed to comply with s 430 in that: "it erred by failing to make an unambiguous finding about the nature of the Appellant's involvement with the LTTE." While this ground is now expressed differently, it is not suggested by counsel for the Minister that it is a ground that was not raised before the primary judge. 14 However a further point is sought to be raised in this appeal which was not raised before the primary judge. Counsel for the appellant accepts that it is a new point. It takes the form of a new particular to the allegation that the Tribunal failed to comply with s 430 of the Act. The particular states: " the Tribunal erred by failing to disclose its reason or reasons for finding that, although the Appellant may well be detained at Colombo airport, there was no real chance that he would be persecuted on his return to Sri Lanka." Counsel for the Minister opposes the amendment to the application for judicial review. Accepting, for present purposes, that this is an appropriate procedural mechanism for raising the new point, it is necessary to decide whether leave to amend should be given. We have discussed the applicable principles in another judgment given recently: Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788. In the present case, we do not propose to grant leave to amend. The appellant was represented by both solicitors and counsel at the hearing before the primary judge. The point now sought to be argued could have been raised in the original application for judicial review. It is not a point that would have any real prospects of success if the amendment were allowed. The Tribunal addressed the question of what might happen to the appellant at Colombo airport on his return to Sri Lanka in the passages from its reasons quoted in pars 5 and 8 above. It is clear that the Tribunal concluded that the appellant would be stopped and questioned because he would not have extensive documentation but otherwise would not be of interest to the authorities in the sense that he would be exposed to harm which would amount to persecution. The Tribunal also concluded he would be of no interest (that might result in persecution) because he was a young man from the North. It also discounted entirely the possibility of interest because of membership or suspected membership (or support) of the LTTE because it found the appellant had none of these characteristics. Its approach was, in our opinion, unexceptionable.

The allegation of ambiguous findings 15 The only ground raised in the appeal involves the contention that the Tribunal failed comply with s 430 because it failed to make an unambiguous finding about the appellant's involvement with the LTTE. On a fair reading of the Tribunal's reasons it made two relevant findings which, in our opinion, are not ambiguous. The first is that the appellant was not a member of the LTTE. That conclusion and finding was expressed by the Tribunal at two points in its reasons (in passages set out in pars 4 and 5 above). The second was that the applicant was not involved with the LTTE (apart from the question of membership) (in the passage set out in par 6 above). The only basis on which it might be thought there was any ambiguity about these findings arises from the observations of the Tribunal that the appellant had exaggerated his role in the LTTE (in the passage set out in par 3 above). 16 However those observations have to be viewed in context. The quoted passage was one of a number of paragraphs (in a "dot point" format) in the Tribunal's reasons designed to illustrate why the Tribunal doubted the credibility of the appellant. The paragraphs were preceded by a general observation that the responses of the appellant "to questions at the hearing were often in conflict with what had been provided earlier" and that "claims were made (by the appellant) which did not fit with the version of events previously given". In our opinion, the reference to exaggeration was intended simply to highlight the discord between the earlier and broader statement about the significance of and involvement in the investigation and the later and narrower statement concerning the same matter. In saying that the appellant had exaggerated his role in the LTTE, the Tribunal was not implying that it accepted he had had some role. Understood this way, there is no ambiguity about the findings made by the Tribunal. 17 The approach of the primary judge differed slightly from the approach just discussed. That may simply reflect the way in which the appellant has recast the point for the purposes of this appeal. However the appellant has not demonstrated any error on the part of the primary judge. Accordingly the appeal should be dismissed and the appellant ordered to pay the Minister's costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Moore and Goldberg.

Associate: Dated: 15 December 2000

Counsel for the Applicant: Mr C Colborne

Solicitor for the Applicant: Siva Logan Solicitors

Counsel for the Respondent: Mr J Smith

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 10 November 2000

Date of Judgment: 15 December 2000