FEDERAL COURT OF AUSTRALIA Applicant N-106 of 2000 v Minister for Immigration & Multicultural Affairs [2000] FCA 866 MIGRATION - application to review decision of Refugee Review Tribunal - whether failure of Secretary to comply with s 418(3) of the Migration Act 1958 (Cth) - whether failure to give Registrar a document or part of a document held by the Secretary that was considered to be relevant to review - whether failure by Tribunal to observe a procedure required by the Act to be observed in connection with the making of the decision - whether alleged failure of the Secretary meant that Tribunal lacked jurisdiction to determine review. Migration Act 1958 (Cth) ss 36(2), 418, 425(1), 425(2)(a), 476(1)(a), 476(1)(b), 476(1)(c), 476(1)(e) Migration Legislation Amendment Act (No 1) 1998 (Cth) Sch 3 (Pt 2) cl 20 Federal Court Rules O 16 r 1 Herijanto v Refugee Review Tribunal (2000) 170 ALR 379 discussed Chan v Minister for Immigration and Ethnic Affairs (1983) 49 ALR 593 applied Hughes v Western Australian Cricket Association( Inc) (1986) ATPR 40-726 applied WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 referred to Jones v Dunkel (1959) 101 CLR 298 applied Minister for Immigration and Multicultural Affairs v Abebe (1999) 162 ALR 1 referred to Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 referred to Craig v State of South Australia (1995) 184 CLR 163 referred to Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 referred to APPLICANT N-106 OF 2000 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 106 OF 2000 MANSFIELD J 29 JUNE 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 106 OF 2000 BETWEEN: APPLICANT N-106 OF 2000 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 29 JUNE 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay to the respondent costs of the application to be taxed. 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 106 OF 2000 BETWEEN: APPLICANT N-106 OF 2000 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE: 29 JUNE 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") given on 13 January 2000. The Tribunal affirmed the decision of a delegate of the respondent of 24 March 1998 refusing the applicant's application for a protection visa under the Migration Act 1958 (Cth) ("the Act"). 2 The applicant is a Sri Lankan national. She lived in or near Colombo until she came to Australia in April 1996. She claimed to be a refugee within the meaning of that term as used in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) ("the Convention"). Thus she claimed to be a person to whom Australia owed protection obligations under the Convention: s 36(2) of the Act. 3 It is convenient to note briefly the nature of the applicant's claims before the Tribunal, and its reasons for rejecting them. The applicant's schooling was, she said, in the southern part of Sri Lanka which was a JVP "stronghold", and in an environment where she was urged to support the JVP. After she left school in 1981, and following the death of her father in 1982, the JVP harassed her and her family because they had Tamil relatives and friends in Jaffna. In 1985, as she refused to distribute JVP pamphlets, she was abducted by the JVP and detained for a number of hours and then released under threat that she must cooperate with its demands or it would arrange to kill her family. She therefore left her family home and went to live with an uncle. She lived at the uncle's address then between 1985 and 1996, apart from a few months in 1995. 4 Whilst living in her uncle's home, from December 1993 there was also residing there a Tamil couple. She suspected them of LTTE affiliations. In December 1994, the male Tamil was arrested. The applicant and her uncle were interrogated by the police seeking information to implicate him in LTTE activities, but she did not provide any helpful information to the police. In her oral evidence she also claimed that in December 1994 she had helped obtain documents to assist that person, although she suspected him of LTTE affiliations. She also said in her oral evidence that she had been arrested in 1994 and accused of being associated with the JVP by the Sri Lankan authorities. The latter part of 1994 was a period of intense LTTE activity and atrocities in Colombo. It led to vigorous police inquiries to identify LTTE activists and sympathisers. Because the applicant lived at a house where the Tamil couple lived, she said that on one occasion the police made enquiries and threatened to teach her a lesson. In May 1995 her uncle died. Shortly after she was arrested and beaten for allegedly having issued travel tickets to LTTE connections (she worked for an airline at the time) but was released after two days. She resigned that job and obtained different employment. In January 1996 she claimed to have been arrested after an LTTE bomb atrocity in Colombo. She was threatened in an attempt to force her to provide information to the authorities concerning LTTE activists but she did not provide any. She was released on payment of a bribe. Shortly thereafter she came to Australia. 5 The Tribunal did not accept her claims. It was not satisfied that her claims, and the evidence she gave in support of them, were credible. It variously described her claims as unsupported, inconsistent, contrary to independent country information about Sri Lanka, and implausible. It said that it had a positive state of disbelief that she was imputed with LTTE affiliation or support, or that she was of interest to the Sri Lankan authorities. It also had grave doubts that her fear of persecution by the JVP, a claim which had not been made in her application for the visa but only in oral evidence before the Tribunal, was real. It dealt in some detail with each of her particular claims. The significance of the Tribunal's reasons is that it rejected positively that she was a credible witness in relation to her claims. 6 The application for review is based solely upon an alleged failure by the Tribunal, in making its decision, to observe a procedure required to be observed in connection with the making of that decision: s 476(1)(a) of the Act. The particulars given of that failure were as follows: "(1) The Secretary failed, pursuant to s.418, to identify and give to the Registrar of the Tribunal each document or part of a document that was in the Secretary's possession or control and considered by the Secretary to be relevant to the review of the decision. (2) The Tribunal erred by proceeding to conduct its review and make a decision without having regard to the documents in the Secretary's possession or control that the Secretary considered relevant." 7 That ground of review emerged from the filing of an amended application at the hearing. It had been notified to the respondent only with the outline of the applicant's submissions provided to the respondent on 5 June 2000, a few days before the hearing. The exchange of submissions then indicated that the respondent contended that the applicant had failed in any event to establish particular (1) above on the material before the Court. 8 There is also an interlocutory application before the Court. After Court hours on the evening preceding the hearing, the applicant provided to the Court and to the respondent her submissions in reply. They indicated that an application would be made at the hearing to seek leave under O 16 r 1 of the Federal Court Rules ("the Rules") to serve interrogatories upon the respondent in the following terms: "1. Did the Secretary, or a person acting on the Secretary's behalf, pursuant to s.418(3) of the Migration Act 1958, give consideration to whether documents or parts of document in the Secretary's possession and control were relevant to the review of the Respondent's decision in respect of the Applicant? 2. If the answer to question 1 is yes – did that person consider that no documents or parts of documents in the Secretary's possession and control were relevant to the review? 3. If the answer to question 1 is yes – did that person consider that documents or parts of documents in the Secretary's possession and control were relevant to the review? 4. If the answer to question 3 is "yes" – (a) what documents did that person consider relevant to the review? (b) were those documents given to the Registrar of the Refugee Review Tribunal? (c) If those documents were given to the Registrar – (i) how were they given to the Registrar? (ii) when where they given to the Registrar? (iii) how were those particular documents identified to the Registrar as documents considered to be relevant to the Applicant's review?" 9 It is an inevitable consequence of that application for leave to interrogate the respondent, if that application is successful, that the hearing will have to be adjourned. 10 At the hearing, with the agreement of counsel, I indicated that I would determine the application for leave to administer interrogatories in conjunction with the application for review itself. If the application for leave to administer interrogatories were successful, the application would have to be adjourned while those interrogatories (or such of them as were allowed) were answered and the matter then further listed for hearing. If the application to administer interrogatories were unsuccessful, the applicant nevertheless wished to maintain her claim for review as particularised in her amended application. I adopted that course because, it seemed to me that I should have some regard to the prospects of the applicant succeeding in her claim against the respondent in determining whether to permit the administration of the interrogatories at the late stage at which the application was made. 11 In the course of argument, it also appeared that the applicant was also invoking the grounds of review available under s 476(1)(b) or s 476(1)(c) in support of the claim that a reviewable error had been committed by the Tribunal in its consideration of the applicant's claim by reason of the provisions of s 418 of the Act. I gave leave to the parties to file further brief written submissions in relation to those matters. 12 The applicant subsequently sought leave to further amend the amended application by adding the following: "2. The tribunal did not have jurisdiction to make the decision [s.476(1)(b)]. Particulars The tribunal erred by proceeding to conduct its review and make a decision without having regard to the documents in the secretary's possession or control that the secretary considered relevant." 13 As that application for leave to further amend the amended application really only identifies another argument of law which the applicant relies upon in relation to the effect of s 418 I grant leave to further amend the amended application in those terms. The respondent was given the opportunity to respond to the argument able to be advanced in the light of the amendment. No prejudice was identified by the respondent as being suffered by him if the amendment was allowed in that circumstance. 14 The applicant's contention on this application bears some resemblance to the issue which underpinned the matters addressed by Gaudron J in Herijanto v Refugee Review Tribunal (2000) 170 ALR 379 ("Herijanto"). In that case, the plaintiffs sought leave to interrogate identified members of the Tribunal before proceeding with a challenge to the decision of the Tribunal against them. It was sought to show that the plaintiffs had not had the benefit of a review 'on the papers' prescribed by s 424 of the Act (as it stood at the time of their applications being considered by the Tribunal), and that the plaintiffs had not had the benefit of procedural fairness, because the Tribunal had not looked at certain documents of significance to the delegate of the Minister. It was argued that s 418(3) was directed to achieving those outcomes (at 381 [8–9]). There appears to have been either some evidence or agreed facts as to the way in which s 418 had been complied with by the secretary. It is recorded in her Honour's reasons (at 381 [7]): "In each case, the Minister's delegate set out, in his or her reasons refusing the relevant application for a protection visa, a list of documents to which he or she had regard in reaching the decision. Those documents have come to be known as "the part B documents". It seems that, in no case, were the part B documents forwarded by the Secretary to the Registrar. Rather, many of those documents were on a computer database to which members of the Tribunal had access. Others it seems were available only in libraries." 15 Various provisions of Pt 7 Div 4 of the Act were amended by the Migration Legislation Amendment Act (No 1) 1998 (Cth) which relevantly came into force from 1 June 1999. The review "on the papers" now appears only as a circumstance in which it is not necessary for the Tribunal to give an applicant an invitation to appear to give evidence: s 425(1) and (2)(a). Because the Tribunal's review in this matter was not completed by June 1999, it was obliged to comply with the Act as amended: Migration Legislation Amendment Act (No 1) 1998 (Cth), Sch 3 (Pt 2) cl 20. 16 Section 418 provides: "(1) If an application for review is made to the Refugee Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application. (2) The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that: (a) sets out the findings of fact made by the person who made the decision; and (b) refers to the evidence on which those findings were based; and (c) gives the reasons for the decision. (3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision." 17 The decision of the delegate of the respondent records that the respondent "used" the following sources of evidence in considering the claim: (1) Departmental file relating to the applicant; (2) United Nations High Commissioner for Refugees Handbook for Determination of Refugee Status; (3) US State Department Annual Report on Human Rights (1996); and (4) Department of Immigration and Multicultural Affairs ("the Department") Country Information Service Data Holdings. 18 The applicant contended that the Secretary failed to comply with s 418(3) by failing to give to the Registrar of the Tribunal a document or part of a document held by the Department which is considered by the Secretary to be relevant to the review of the delegate's decision. She assumes the Secretary would delegate to the respondent's delegate who made the initial decision to be reviewed by the Tribunal the role of identifying the relevant document or documents, or would seek information from that person about the relevant document or documents. She submits the Secretary would not satisfy that obligation by merely providing to the Registrar the Department's data base of information about countries or about a particular country. She submits that that is what happened in her case. 19 The Tribunal's failure to receive that identified information relevant to the delegate's decision is said then to lead the Tribunal to either: · failing to have regard to material it was obliged to consider under the Act, so as to constitute a failure to observe a procedure required by the Act to be observed in connection with the making of the decision: s 476(1)(a), or possibly so as to constitute an error of law by an incorrect application of the facts as found: s 476(1)(e); and · proceeding to determine the applicant's claim without having jurisdiction to do so, because the exercise of the Tribunal's jurisdiction depended upon it having received from the Secretary the document or documents to which s 418(3) refers: s 476(1)(b). 20 There is no objection in principle to the respondent being required to answer interrogatories in appropriate circumstances: Chan v Minister for Immigration and Ethnic Affairs (1983) 49 ALR 593. The proposed interrogatories are directed to determining whether (and in the applicant's expectation, to exposing the fact that) the Secretary did comply with s 418(3) of the Act. Depending upon the particular circumstances that may be a relevant topic upon which leave to interrogate the respondent may be given. The objection in this instance arises from the timing of the application, and the absence of utility in the proposed interrogatories. The only explanation for the belated timing of the application for leave to interrogate proffered in submissions, is that the applicant assumed that the respondent would include information in the book of Relevant Documents filed pursuant to directions given on 2 March 2000 the material indicating the extent to which the Secretary had complied with s 418 of the Act. I do not accept that contention. At that time the directions were given to prepare the book of Relevant Documents, the application did not contain any hint that the applicant was seeking to rely upon s 418 of the Act or that the nature of the communications between the Secretary and the Tribunal might be relevant. 21 There was no basis for the applicant to have made any such assumption at that time. There is no evidence of any request by the applicant later to have included in the book of Relevant Documents any such material, nor any evidence of any request by the applicant to inspect the Tribunal's file. As noted, the claim based on s 418 first emerged on 5 June 2000. Given its timing, the applicant could not necessarily have expected that the respondent then would adopt the course of reviewing the book of Relevant Documents and the Tribunal's file. 22 Moreover, there is no satisfactory explanation for the issue having been signalled so late. 23 On 2 March 2000 directions were given by the Court that the respondent should prepare a book of Relevant Documents. At that time the application gave no hint of the sole point now argued on this application. The book of Relevant Documents, in those circumstances, understandably did not contain the material communications between the Tribunal and the Secretary of the Department. The directions then given required the applicant to provide any appropriate particulars of the grounds of review and any affidavits proposed to be relied upon in support of the application by 31 March 2000. No such particulars were given. No such affidavits were filed. The directions also required the applicant to file submissions in support of her application ten days before the hearing date, that is by Monday 29 May 2000. That direction was not complied with. The outline of contentions which first signalled the point now argued was provided, so far as I can determine, with the proposed amended application late in the afternoon of 5 June 2000. 24 I do not propose to grant leave to the applicant to interrogate the respondent in terms of the proposed interrogatories in the particular circumstances of this case. 25 The discretion to allow interrogatories is a broad one, and one which should be exercised in the interests of justice: per Toohey J in Hughes v Western Australian Cricket Association( Inc) (1986) ATPR 40-726 at 47934. The lateness of the application, and the inevitable consequence of the adjournment of the hearing, is but a small factor in my consideration of the application. More importantly, I am not satisfied that the refusal of the application would work injustice to the applicant. That is due to the fact that her application was refused by the Tribunal because it did not accept her claims. There is nothing of any substance to suggest that the Tribunal's reasons for that conclusion would have been any different, even assuming that the Secretary failed to comply with s 418(3) of the Act. The Tribunal had the benefit of the reasons for decision of the delegate of the respondent, which (as noted below) referred to certain reports about the state of affairs in Sri Lanka to which the Tribunal also explicitly referred. It is entirely speculative in the circumstances to suggest that the outcome of the Tribunal's consideration would have been any different whether or not the Secretary complied with s 418(3). 26 In addition, having regard to the lateness of the application, I consider it appropriate to see whether the applicant has any real foundation for the suspicion which gives rise to the present application. Unlike the position which apparently applied in Herijanto, there is here no evidence to indicate that the Secretary did not comply with s 418 of the Act and no acknowledgment that the Secretary did not do so, or did so in a particular and limited way. 27 Following the lodging of the application for review to the Tribunal, the Tribunal wrote to the applicant on 23 April 1998 informing her that it had asked the Department "to send a copy of its documents about your case to the Tribunal", and that it would then consider those documents together with any other documents on the Tribunal file to decide whether it could make a decision in her favour. It invited her to send any documents or written evidence to the Tribunal. Subsequently, on 16 November 1999, the Tribunal again wrote to the applicant informing her that it had "looked at all the material relating to your application" but was not prepared to make a favourable decision on that information alone. It fixed a hearing date, and invited her to appear to give evidence on that occasion. 28 In its reasons, the Tribunal noted that it had received the Department's file including the applicant's protection visa application, and written submissions in support of the application. It referred also to oral evidence to the Tribunal given by the applicant on 10 December 1999. In the course of its discussion of the applicant's claims, and of the independent evidence before the Tribunal, the Tribunal referred to a number of reports apparently from the Department of Foreign Affairs and Trade ("DFAT") concerning the state of affairs in Sri Lanka. They are identified by number and date. It also had regard to certain other research papers available tot he Tribunal including from the UNHCR. It is accepted by counsel for the applicant that the reports from DFAT to which the Tribunal referred fall within the description of the Department's Country Information Service Data holdings referred to by the Tribunal. It is also clear that the delegate of the respondent in her reasons referred to certain reports described as Country Information Reports which also are explicitly referred to by the Tribunal. Those reports are, I infer, part of the Department's Country Information Service Data holdings. 29 It is quite apparent that the Secretary complied with s 418(2) of the Act. I infer that the Secretary has given the Registrar copies of a statement about the delegate's decision setting out the findings of fact made by the delegate and referring to the evidence on which those findings were based, and containing the reasons for the decision of the delegate of the respondent because that document appears in the book of Relevant Documents. 30 In my judgment, that compliance, together with the request of the Tribunal for the Department's file, and the clear evidence that the Department's file was conveyed to the Tribunal does not, in the present circumstances, support any finding or possible finding that the Secretary of the Department did not address the obligation under s 418(3) or endeavour to comply with it. 31 Those matters, the timing of the application, and the lack of any satisfactory explanation for the reason why the application was made so belatedly, all indicate to my mind that the applicant merely hopes to make a case and to find out if she has a case of which she presently knows nothing: WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 567 per Brennan J and at 575 per Lockhart J. 32 It is then necessary to address the ground of review in the light of the material before the Court. The consideration of that material discussed above is sufficient to show that I am not persuaded that the Secretary failed to comply with s 418(3) of the Act. The material tends to suggest, in this particular matter, that the Secretary did comply with that provision. The lateness of the issue being identified is, in my judgment, a sufficient reason not to infer that the Secretary did not comply with that provision even though there is no direct evidence that it was complied with: Jones v Dunkel (1959) 101 CLR 298 ("Jones"). It would, in any event, be appropriate to draw that inference only if there were evidence from which the inference might otherwise be drawn, but, the applicant really seeks to convert suspicion into inference without any evidence at all: see Jones at 308, 320 – 321. As noted above, there is evidence in the material before the Court which tends to show that the Secretary did comply with s 418(3) of the Act. 33 As the fact upon which the grounds of review has not been made out, it is not necessary to separately address the provisions of ss 476(1)(a) or (b) or (e) to determine whether they could give rise to one or more of those grounds of review in relation to the Tribunal's decision. It is not clear that the ground of review in s 476(1)(a) is available (in the circumstances as the applicant suspects them to be) because it is not in Div 4 Pt 7 of the Act: Minister for Immigration and Multicultural Affairs v Abebe (1999) 162 ALR 1 at 28 fn 63 and at 41; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 600 fn 61. It is also not clear that the failure of the Secretary to comply with s 418(3) leads to the Tribunal not having jurisdiction at all to proceed to hear and determine the application for review so as to give rise to the ground of review under s 476(1)(b): Craig v State of South Australia (1995) 184 CLR 163 and cp Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 and see ss 412 and 414 of the Act. 34 In my judgment, this application should be dismissed. I consider that the applicant should pay to the respondent costs of the application to be taxed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 29 June 2000 Counsel for the Applicant: Mr C Colborne Solicitors for the Applicant: Siva Logan Solicitors Counsel for the Respondent: Mr T Reilly Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 8 June 2000 Date of Judgment: 29 June 2000