NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

FEDERAL COURT OF AUSTRALIA NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

MIGRATION – visa – protection visa – reliance on 'country information' – whether Tribunal can use such information in assessing credit – whether such information the sole basis for Tribunal's findings as to credit – Tribunal's duty to look at reasonably foreseeable future – whether subsequent developments can be relied on to vitiate Tribunal's decision – whether denial of procedural fairness – whether sufficient opportunity to deal with country information – whether Tribunal biased

Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 36(2), 420(2)(a), 424(1)

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 372 cited Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24 referred to Mok v Minister for Immigration, Local Government & Ethnic Affairs (No 1) (1993) 47 FCR 1referred to Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 (2003) 195 ALR 502 applied NAHI, NAHJ AND NAHK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 595 of 2003 GRAY, TAMBERLIN AND LANDER JJ 2 FEBRUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 595 of 2003

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

BETWEEN: NAHI

FIRST APPELLANT

NAHJ

SECOND APPELLANT

NAHK

THIRD APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: GRAY, TAMBERLIN AND LANDER JJ

DATE OF ORDER: 2 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the respondent's costs of the appeal. 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 595 of 2003

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

BETWEEN: NAHI

FIRST APPELLANT

NAHJ

SECOND APPELLANT

NAHK

THIRD APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: GRAY, TAMBERLIN AND LANDER JJ

DATE: 2 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT:

The nature of the proceeding 1 This appeal is from the judgment of Stone J in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 372. Her Honour dismissed an application, pursuant to s 39B of the Judiciary Act 1903 (Cth) ('the Judiciary Act'), for writs of certiorari, prohibition and mandamus, directed to the Refugee Review Tribunal ('the Tribunal'), in respect of its decision to refuse to grant protection visas to the three appellants. 2 In its decision, made on 13 November 2002, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, 'the Minister'), refusing to grant protection visas. As its written reasons for decision show, the Tribunal found that the first appellant, who is the husband of the second appellant and the father of the third appellant, did not have a well-founded fear of persecution, if he should return to his homeland of Sri Lanka, for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal therefore found that the first appellant did not satisfy the criterion in s 36(2) of the Migration Act 1958 (Cth) ('the Migration Act'), because he was not a person to whom Australia had protection obligations under the Refugees Convention (the Convention relating to the Status of Refugees done at Geneva on 28 July 1951) or the Refugees Protocol (the Protocol relating to the Status of Refugees done at New York on 31 January 1967) (together called the 'Convention'). Because the second and third appellants' claims to protection visas depended upon the success of the first appellant's claim, they also failed.

The Tribunal's reasons for decision 3 In its written reasons for decision, the Tribunal set out at considerable length the first appellant's account of his life in Sri Lanka, his departures from and returns to that country, and his claims as to what had been done to him by the Sri Lankan authorities, allegedly because of his membership of the Tamil race and his connections, real or imputed, with the Liberation Tigers of Tamil Eelam ('LTTE'). It is unnecessary to detail the first appellant's claims. The Tribunal made findings adverse to the credibility of the first appellant. In the following passage in its reasons for decision, the Tribunal rejected each of his claims: 'Specifically, having regard to the view I have formed of the [first appellant's] credibility, I do not accept that the LTTE stole goods such as cement and generators from the site under the [first appellant's] control between 1984 and 1993. I do not accept that the [first appellant] was ever the subject of a criminal investigation, either as a result of these claimed thefts or because the LTTE compelled him to sign blank pieces of paper which the LTTE used to have goods such as cement and generators delivered to them. I do not accept that the [first appellant] was abducted by the LTTE towards the end of 1992 and compelled to sign blank pieces of paper. I do not accept that the [first appellant] would not have been arrested if his involvement in these thefts from the corporation had come to light, as he says, nor that he would have been allowed to leave the country in these circumstances. Equally, I do not accept that the [first appellant] would have travelled in and out of Sri Lanka on no less than three occasions after this, in 1995, 1997 and 1999, if the threat of a criminal investigation had been hanging over him as he claims. Having regard to the view I have formed of the [first appellant's] credibility, I do not accept his account of his two arrests in Colombo in February and March 1999. For reasons given above I do not accept that the [first appellant] would have been of any greater interest to the police by reason of his relationship with his eldest brother, who he says was wrongfully arrested and imprisoned for three years in 1984, than his second eldest brother, who he says at all material times held a good position in the Department of Health in Batticaloa. Moreover, although the [first appellant] claims that he was told to leave the country by the Muslim police officer who he claims to have bribed to obtain his release in February 1999, he remained in Sri Lanka with his wife and child until April 1999. I consider that the [first appellant's] entire account of the problems he claims to have experienced in Sri Lanka is a fabrication. I do not accept that the [first appellant] was ever arrested by the authorities in Sri Lanka nor that he has ever been of any interest to the Sri Lankan authorities. I likewise do not accept that he has ever been of any interest to the LTTE. I do not accept that he ever assisted the LTTE nor that the LTTE believes that he betrayed the LTTE.' 4 The Tribunal nevertheless went on to consider whether, because the first appellant is a Tamil from Batticaloa in the Eastern Province of Sri Lanka, he had a well-founded fear of persecution if he returned to Sri Lanka. It first referred to advice from the Department of Foreign Affairs and Trade ('DFAT') that, 'before the current peace process got under way … a Tamil male would not be at risk of persecution by the Sri Lankan Government in the Batticaloa region as a consequence of his Tamil ethnicity'. It referred to the first appellant's response to this advice, which was that DFAT might say that, but he knew what was going on there. The Tribunal then said: '[H]aving regard to the view I have formed of the [first appellant's] credibility, I prefer the advice of the Australian Department of Foreign Affairs and Trade to his evidence to the extent of any inconsistency.' 5 The Tribunal then turned its attention to the effect of the peace process in Sri Lanka on the lives of Tamils from Batticaloa. It referred to information from a number of sources about that process. It then said:

'The [first appellant] referred to political factors which he suggested imperilled the peace process. However, as I indicated to the [first appellant], I consider that the current peace process has better prospects of success than previous attempts because of the involvement of the international community. Norway was involved in brokering the ceasefire and it is leading the monitoring mission which is overseeing the implementation of the ceasefire agreement. As I indicated to the [first appellant], I accept that there have been breaches of the agreement but I consider that such breaches are inevitable with this sort of agreement. What is important is that the breaches are being reported to, and recorded by, the monitoring mission … At the same time there is also pressure on the Sri Lankan Government to reach a peace agreement because of the enormous cost imposed by the war'. 6 After referring to further material, the Tribunal found: 'I do not accept that there is a real chance that the [first appellant] will be singled out for abduction or extortion by the LTTE by reason of his race (Tamil) or for any other Convention reason if he returns to his home in Batticaloa now or in the reasonably foreseeable future. The [first appellant] also expressed the fear that his son, who is aged six, would be forcibly recruited by the LTTE. While it is true that the LTTE has forcibly recruited children in the past I consider that the possibility that the [first appellant's] son will be forcibly recruited is remote, having regard to his age and the current peace process. I do not accept that there is a real chance that the [first appellant] or his wife or their child will be persecuted by the LTTE for a Convention reason if they return to their home in Batticaloa now or in the reasonably foreseeable future.'

The proceeding at first instance 7 The appellants' application to the Court at first instance was filed by a solicitor. The only grounds for relief disclosed in the solicitor's affidavit that accompanied the application were that the Tribunal had exceeded its jurisdiction, or constructively failed to exercise its jurisdiction. No particulars of any jurisdictional error on the part of the Tribunal were supplied. In her reasons for judgment at [7], Stone J referred to written submissions supplied by the first appellant, showing that he had some appreciation of the fact that he was required to show jurisdictional error on the part of the Tribunal to obtain the relief he sought. Her Honour referred to Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24 and continued at [8]: 'While there may be some doubt about the boundaries of jurisdictional error as referred to by the High Court, the difficulty confronting the [first appellant] is that he has not, either in his written submissions or before me today, identified anything in the Tribunal's reasons that would support his submissions. He alleges that there was procedural unfairness and hints at bias on the part of the Tribunal. His objections however seem to be with the Tribunal's conclusions as to the merits of his claim. He submitted before me today that the Tribunal was wrong in concluding that there was no reasonably foreseeable chance of future persecution if the [appellants] were to be returned to Sri Lanka because, as he said, one cannot predict the future. His other submissions were in similar vein and amounted to an invitation to the Court to engage in merits review. As I explained to the [first appellant] at some length this is not within the jurisdiction of the Court. Conscious that the [first appellant] is not legally represented, I have read the Tribunal's reasons with some care. In my opinion the Tribunal explained clearly and fully why it did not believe the [first appellant] and, as the extracts from its reasons quoted above show, it identified the inconsistencies and contradictions that led it to that view. I can find nothing in the Tribunal's reasons that would support a claim of jurisdictional error and for this reason the application must be dismissed with costs.'

The grounds of appeal 8 The notice of appeal, filed on 19 May 2003 to commence the present proceeding, was also filed by a solicitor. The only ground of appeal raised is the suggestion that Stone J erred in holding that the Tribunal had not exceeded its jurisdiction or constructively failed to exercise it, by failing to have regard to a relevant consideration. No particulars were given of the relevant consideration to which it is suggested that the Tribunal ought to have had regard. 9 On 2 December 2003, the appellants filed with the Court written submissions in relation to the appeal, signed by the first appellant. The first appellant attended the hearing of the appeal on 5 December 2003 and made oral submissions in his own language, through an interpreter.

Findings of fact 10 In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants' case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.

Reliance on 'country information' 11 The appellants' submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as 'country information'. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants' case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on 'country information'. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to 'guidance', as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in merits review. The Court does not have power to do that. 12 The appellants' submissions asserted that the Tribunal rejected all of the appellants' claims on the basis of 'country information'. The Tribunal's reasons for decision do not substantiate this assertion. It is plain that the Tribunal relied to a substantial extent on the inherent improbability of some aspects of the first appellant's story, inconsistencies between different parts of his story, and the fact of his frequent returns to Sri Lanka and the length of his sojourns there, to form its views about his credibility. In turn, it relied on its assessment of the first appellant's credibility in determining whether it accepted some of the 'country information'. Its treatment of the DFAT advice about Tamil males from Batticaloa, to which we have referred in [4], is an example. The very function of the Tribunal was to assess the appellants' claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants' country of origin. 13 In performing its function, the Tribunal was obliged to make an assessment of the circumstances in Sri Lanka in the reasonably foreseeable future. See Mok v Minister for Immigration, Local Government & Ethnic Affairs (No 1) (1993) 47 FCR 1 at 66. It had to assess whether there was a real chance of persecution of the appellants for a Convention reason if they were to return to Sri Lanka. The appellants complained in their written submissions that the Tribunal engaged in this exercise at all. In his oral submissions, the first appellant said that it was a legal error to base a conclusion on a hypothesis about what might happen in the future. These submissions cannot be accepted. The appellants also complained that the Tribunal made an incorrect assessment of the foreseeable future, by making a 'mere guess' and by relying on 'country information' that did not present a true picture. It is clear from its reasons for decision that the Tribunal did rely on 'country information' in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.

14 In their original application for a protection visa, the appellants placed before the Minister's delegate 'country information' of their own, from a variety of sources. The Tribunal appears to have had this material before it, by way of the file of the Department of Immigration and Multicultural and Indigenous Affairs. The appellants' submissions to this Court complained that the Tribunal did not comment on this material. The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item.

Subsequent developments 15 The appellants also attempted to rely on developments in relation to the peace process in Sri Lanka since the Tribunal's decision, to demonstrate that the peace process was more likely to fail than the Tribunal found. They cited the passage from the judgment of Toohey J in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 406, where his Honour said: 'If circumstances have changed since the applicant left the country of his nationality, that is a relevant consideration. In an appropriate case the change (such as a new government) may remove the basis for a well-founded fear of persecution.' Toohey J was referring to changes occurring between the departure of an applicant for a protection visa from his or her country of nationality and the decision on the merits of the application for the visa. His Honour was not suggesting that a decision on the merits, made on material available at the time of that decision, could be undone because subsequent events did not unfold according to the expectations of the decision-maker. The appellants' submission is tantamount to saying that the Tribunal was wrong on the facts, and the Court should correct its factual error. It would be beyond the power of the Court, in a case in which relief is sought pursuant to s 39B of the Judiciary Act, to perform such a function. The Tribunal was alert to the fact that its function was to assess whether there was a 'real chance' of persecution of the appellants in Sri Lanka. It did not make any error as to the meaning or nature of the 'real chance' test. Subsequent events cannot be used to falsify its finding. The Court does not have the power to say that the Tribunal's finding that the risk of persecution of the appellants was too low to constitute a real chance was wrong. In his oral submissions, the first appellant referred to the withdrawal of the Norwegian Government from the peace process in Sri Lanka, and to the political differences that have emerged between the President and the Prime Minister of Sri Lanka, since the Tribunal made its decision. He was attempting to persuade the Court to re-decide the question of entitlement to a protection visa, on material not available to the Tribunal. In a proceeding of this kind, the Court does not have that power.

Procedural fairness 16 The appellants' submissions also appeared to raise the question of denial of procedural fairness. They suggested that the appellants were not given any, or a sufficient, opportunity to comment on the 'country information' relied on by the Tribunal. To the extent to which the first appellant had been invited to comment on 'country information' during the Tribunal hearing, the appellants submitted that this practice was unreasonable, as the first appellant would not be in a good state of mind to make comment. The first appellant said that, when he was asked to comment on 'country information' in the course of the hearing, he was confused and not focussed. He should have been give a week to make written submissions about the information the Tribunal had put to him. 17 A question of denial of procedural fairness must be examined in the light of the circumstances of the particular case. As we have already said, the appellants supplied their own 'country information' as part of their original application for protection visas. The Minister's delegate quoted 'country information' from a variety of sources in her decision to refuse to grant such visas. In making their application to the Tribunal for review of that decision, the appellants were assisted by a solicitor, who was also a registered migration agent. The letter from the Tribunal to the first appellant, dated 7 September 1999, acknowledging receipt of the application for review, advised the appellants: '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.' 18 It would have been apparent to the appellants, before they attended the Tribunal hearing on 9 September 2002, that information about the state of the Tamil struggle for an independent homeland in Sri Lanka would be highly relevant to their case. In particular, whether they could claim to have a well-founded fear of persecution, in the light of the peace process that was under way, was an obvious issue. The material they placed before the Tribunal at or before the hearing included a written submission from their solicitor. Clearly, they ought to have been aware that they could have placed documents containing material about that issue, including 'country information', before the Tribunal. It appears that they were so aware. The first appellant told us that he had handed to the Tribunal reports he had downloaded from the internet. 19 The Tribunal's reasons for decision contain some account of what passed between the first appellant and the member constituting the Tribunal at the hearing. According to its reasons, the Tribunal put to the first appellant information from some 16 sources of 'country information' in the course of the hearing and invited the first appellant to comment on that information. The appellants have not placed before the Court the transcript of the hearing, for the purpose of demonstrating that the opportunities given to the first appellant to respond to that material were inadequate in the circumstances. They have not established, or even suggested, that the first appellant requested an opportunity to respond by way of written submissions, or was denied such an opportunity. The Tribunal's reasons for decision record that it had asked the first appellant whether there was anything he wished to add before the hearing was closed. The first appellant did not suggest that this was false, or that he had asked for further time in which to provide material. The appellants have not told the Court what they might have placed before the Tribunal, by way of evidence or submissions not already before it, if some further opportunity for comment on the 'country information' had been provided. See Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 (2003) 195 ALR 502 at [36] – [37] per Gleeson CJ, [106] per McHugh and Gummow JJ, [114] per Hayne J and [149] per Callinan J.

20 In the circumstances of this case, the appellants have failed to show that they have been given anything less than a fair opportunity to deal with the material on which the Tribunal relied. They have failed to make out a case of denial of procedural fairness.

The question of bias 21 In his oral submissions, the first appellant raised expressly an allegation of bias on the part of the Tribunal. He suggested that the Tribunal member had come to the hearing with the intention of disbelieving all his claims. This argument was based in part on the proposition with which we have already dealt, that the Tribunal used 'country information' to disbelieve all the first appellant's claims. As we have said in [12], the Tribunal formed its view of the first appellant's credibility largely on the basis of his own evidence. To some extent, it used its view of his credibility in deciding to accept 'country information'. 22 The bias argument was also based on the refusal of the Tribunal to accept material provided to it by the first appellant. In the Tribunal's reasons for decision, it recorded an account of an exchange that occurred during the hearing, when the first appellant produced a report downloaded from an internet site called 'Sri Lanka Truth'. The Tribunal told him that one of the problems with the internet was that anyone could establish a web site. The fact that the site was called 'Sri Lanka Truth' did not mean that everything published there was true. According to the Tribunal's reasons, the first appellant then said that the reports he had produced from newspapers in Sri Lanka also referred to the breaches of the cease-fire agreement committed by the LTTE. The first appellant submitted to the Court that the Tribunal should have verified the information from the web site, which was in fact that of the Sri Lankan Ministry of Information. The Tribunal did not have an obligation to attempt to verify everything the appellants placed before it. It does not appear that the first appellant told the Tribunal that the site was that of the Ministry of Information. In any event, the Tribunal accepted, in favour of the appellants, that there had been breaches of the cease-fire agreement, so that the issue of the particular web site did not matter. The Tribunal dealt with the question of breaches of the cease-fire agreement in the passage we have quoted in [5]. Its finding on that issue was open to it, and a matter for it and not for the Court. 23 The first appellant has failed to make out a case of apprehended bias on the part of the Tribunal. Disbelief of the first appellant's evidence and acceptance of material from other sources as being more credible than material supplied by the appellants do not establish that a reasonable bystander would believe that the Tribunal was biased against the appellants. They are the result of the performance of the Tribunal's function to make a decision on the case.

Conclusion 24 As was the case at first instance, the appellants have failed to demonstrate that the Tribunal made any error that could be described as a jurisdictional error. Our own examination of the reasons for decision of the Tribunal does not disclose any jurisdictional error. It follows that Stone J made no error when she concluded in her judgment that the Tribunal had not made any jurisdictional error. The appeal must therefore be dismissed. No good reason has been shown to depart from the usual order that costs follow the event. The appellants should therefore be ordered to pay the Minister's costs of the appeal.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 2 February 2004

Counsel for the Appellants: The first Appellant appeared in person

Counsel for the Respondent: G R Kennett

Solicitor for the Respondent: Clayton Utz

Date of Hearing: 5 December 2003

Date of Judgment: 2 February 2004