FEDERAL COURT OF AUSTRALIA Gomez v Minister for Immigration and Multicultural Affairs [2001] FCA 935 Adrian Gomez v Minister for Immigration and Multicultural Affairs V782 of 2000 ALLSOP J MELBOURNE 13 JULY 2001 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No V782 of 2000 BETWEEN: ADRIAN GOMEZ APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: ALLSOP J DATE OF ORDER: 13 JULY 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The matter stand over to 17 July 2001 in relation to costs. 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 No V782 of 2000 BETWEEN: ADRIAN GOMEZ APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: ALLSOP J DATE: 13 JULY 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application for an order for review by the Court of a decision of the Refugee Review Tribunal (the Tribunal) made on 22 August 2000 in which the Tribunal affirmed a decision of a delegate of the respondent Minister made, on 26 September 1997, not to grant to the applicant a protection visa under the Migration Act 1958 (the Act). I should add that it is not clear to me why it took the Tribunal three years to deal with the matter. There may have been good reason. In any event, the matter is now before the Court. 2 The applicant, Mr Gomez, is a male national of Sri Lanka. He arrived in Australia with his wife and child on 23 July 1996. On 14 March 1997 he lodged an application for a protection visa (class AZ), in which application his wife and child were included as applicants by virtue of being members of his family unit; that is, his wife and child did not, and do not, make separate claims for protection in their own right. 3 On 26 September 1997 a delegate of the Minister refused to grant the applicant a protection visa and by letter of that date enclosing the reasons for the decision, informed the applicant of the refusal. The letter and accompanying reasons reflected a decision by the delegate that the applicant was not a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, to which I will refer together as "the Convention". The letter also informed Mr Gomez that, on the basis that his application for a protection visa had been refused, his wife and child were, as members of his family unit, likewise refused such visas. 4 On 17 October 1997 application was made to the Tribunal for review of the delegate's decision. The applicant's wife and child were each included as applicants in that application. In addition to written submissions in support of the review application, the applicant and his wife gave oral expression to their claims before the Tribunal at a hearing held on 14 August 2000. On 22 August 2000 the Tribunal affirmed the delegate's decision. An application was made to this Court for an order of review on 10 October 2000. Leave was given on 4 December 2000 to file an amended application, and an amended application was filed on 28 February 2001 in this Court. 5 It is appropriate to outline briefly the claims put to the Tribunal in support of the application to it. In its written reasons for decision the Tribunal summarised what it understood those claims to be, noting that in addition to having heard the applicant (and, so it appears, his wife) at the 14 August hearing, it had before it the Departmental file, including the original application for a protection visa, an accompanying statement and some written submissions. For the purposes of the present review, I propose to summarise in turn that part of the Tribunal's reasons in which the claims to it are recounted as follows. I note that in doing so I will, for convenience, refer to the applicant and his family unit plurally as "the applicants", as did the Tribunal. 6 The applicant claimed that both he and his brother-in-law were members of a Sri Lankan political organisation to which I will refer, as the Tribunal did, as the UNP. His brother-in-law, to whom I shall refer hereafter as Trevon, had discovered that his, that is Trevon's, employer along with some members of the Sri Lankan government was and were involved in organised crime, as were some senior police officers. 7 The applicants returned to Sri Lanka from Oman on 21 June 1996, having been there in connection with the applicant's employment in Oman. On the next day they were travelling along with members of their extended family, that is, the applicant's wife and Trevon's family, in a vehicle supplied by Trevon's employer. The driver stopped the vehicle at a train level crossing and fled from it. The driver had stopped a number of times on approaching the crossing before stalling the vehicle on the crossing and jumping from it. The vehicle was struck by a train and a number of occupants of the vehicle, including members of Trevon's family, were killed. The applicant's wife also testified to the circumstances of the accident. The driver of the vehicle had subsequently been arrested by the police, but it was not clear what the outcome of the arrest was. 8 At the time, the applicants did not suspect that the driver may have intended harm to some of the occupants. I note at this point that in its summary of the claims made the Tribunal described local newspaper reports on the accident tendered to it by the applicants. It put to the applicants that these reports, part of which quoted remarks made to the journalist at the time by the applicant and Trevon, gave every indication that those involved, including the applicant, believed the event to have been an unfortunate accident for which the driver was not at fault. The applicants responded that this was their belief at the time of the accident. 9 However, on a later occasion the applicant and Trevon were travelling on a motorcycle when a vehicle was intentionally driven in such a manner as to force them off the road. A few days later, or on two different occasions, unknown people had come in search of Trevon and the applicant. Subsequently, Trevon had discovered an audio cassette at his place of work which had indicated that his employer was aware that he, Trevon, had information about the involvement of certain persons in organised crime. It was after these incidents that the applicants had realised that the level crossing accident was no accident at all. Neither the applicant nor Trevon had pursued further the matter of the level crossing accident in the sense of the bringing of any legal action relating to it, nor had they reported the motorcycle incident to the authorities. Trevon had not divulged the information relating to the crimes to the press or to a lawyer. 10 At the Tribunal hearing the applicant told the Tribunal that he was a UNP sympathiser but was not a member of that organisation, nor had he worked for it in relation to elections. The applicants obtained visas to travel to Australia on 10 July 1996 and departed Sri Lanka for Australia on 23 July that year. The applicant's family in Sri Lanka have advised him that unknown men have in the past continued to come to his home and inquire about him in connection with Trevon. 11 The applicants presented the Tribunal with two letters of December 1997 and May 1998, being letters from relatives in Sri Lanka to the effect that persons were still searching for them. Also presented to the Tribunal was an undated media report indicating the son of a Deputy Minister in the government had been remanded in a local court in connection with the murder of a foreign national. The applicant feared to return to Sri Lanka because he would be targeted by Trevon's employer because it would be thought or known that he knew what Trevon had discovered about the employer's involvement in crime and/or intended criminal activity. As the crimes involve politicians and senior police officers, the applicants would be unable to obtain the protection of Sri Lankan authorities and would be harmed. 12 The above is a general outline of the claims before the Tribunal. They are also set out in a document filed in this Court on 28 February 2001 entitled Contentions of Fact and Law. In paragraph 1 through to 10 of those contentions of fact, a similar summary is given as follows: 1. Personal particulars of the Applicant: a) Born in Colombo, Western Province, Sri Lanka on 16 January 1964 b) Belongs to the Burgher ethnic group c) Citizen of Sri Lanka d) Married with two children, all reside with him and are persons included in this application e) Was at the time of arrival in Australia employed in the hospitality industry in Sultanate of Oman 2. In June 1996, the applicant together with his family returned to Colombo on holidays from Sultanate of Oman. They arrived in Colombo on 21 June 1996. 3. Trevon Gararth is the applicant's brother in law who worked at a casino in Colombo as the Food and Beverage manager. The Applicant and Trevon are members of the United national Party (UNP). 4. Trevon was involved with the UNP activities and had close associations with UNP politicians. Trevon had in the course of his employment learnt that his employer and many politicians of the then/present government were involved in organised crimes with the help of may [sic] senior officers of the Sri Lankan authorities who backed the government. Trevon had confided in the Applicant many secrets known to him and had told the Applicant of his fears to work under his employer and that he had tried to get employment elsewhere. 5. On 22 June 1996, the Applicant was travelling with his wife and child, Trevon and his family and other members of his extended family in a van provided to Trevon by him employer. The van carrying them was involved in a fatal accident involving a train at an unmanned railway crossing. 6. The circumstances surrounding the "accident" are that – as the van was approaching the level crossing the driver stalled/stopped the van on two occasions within a few hundred meters of the level crossing when he apparently checked the oil and started to drive on although everyone heard the train. As they were approaching the railway crossing Trevon and the Applicant's aunt warned the driver about the train and told him to stop the van. The driver did not heed the warning and once again stalled the van on the level crossing, opened his door and leaving [it] open ran away. None of the occupants of the van could get out in time before the train collided with the van. In this incident Trevon's wife and two children and his brother in law were killed. 7. The police subsequently arrested the driver of the van and the police have recorded statements of the incident. 8. A few days later, when Trevon and the Applicant were travelling on a motorcycle a Pajero van tried to knock them down. At that time they thought the Pajero was driven by a drunk. A few days later two unidentified persons attended their house in their absence inquiring about their whereabouts. 9. A few days after the accident, Trevon came across an audio tape at this work place, which revealed that his employer had learnt of Trevon's knowledge of their organised crimes. 10. Subsequent to the accident, the Applicant realised that it was not an accident but an attempt on their lives for political reasons. The Applicant together with Trevon feared persecution because they had information about intended criminal activities by individual politicians and senior police in Sri Lanka which would mean that they would be persecuted and unable to obtain the protection of the authorities in Sri Lanka. 13 The Tribunal, having set out earlier in its reasons what it considered to be the applicable legal framework relating to the decision to be made by it, about which there is no complaint made and which seems on its face to be unobjectionable, made the following findings in relation to the applicant's claims: a) It did not accept that the applicant would have been sought after in relation to any knowledge or information he might have of the criminal intentions of politicians and police, nor that he would be of any threat to such persons by virtue of having such knowledge. b) The Tribunal noted claims, not as such previously described by it in that part of the reasons summarised above, that the applicants had important information about planned political killings in Sri Lanka. The Tribunal said that it did not find the claims in this regard in any way convincing. c) It did not accept the claim of discovery by Trevon of an audio cassette indicating an intention of Trevon's employer to have Trevon killed. d) It did not, for the reasons it said it had given in relation to his separate claim, accept that Trevon in fact had any information about his employer's criminal activities. (The Tribunal in relation to Trevon's claim was constituted by the same Tribunal member as dealt with the applicant's claims and the Tribunal handed down reasons in Trevon's claim on the same day as it dealt with the applicants' claims. Those reasons for decision in Trevon's claim were included in the court book but it is unnecessary to address them.) e) It did not accept that the level crossing accident had been the result of a plot by Trevon's employer to have Trevon and themselves killed. It found that this was instead an accident of fate. Referring to what a witness to the accident had been quoted in the media report as saying about the circumstances of it, the Tribunal found that the actual sequence of events claimed to have occurred immediately prior to the accident, that is, that the driver had stopped the vehicle on more than one occasion when approaching the crossing, did not occur. f) Noting that they were vague and general, the Tribunal found Mr Gomez's, that is, the husband applicant's, claims of harassment after the accident, including the motorcycle incident, to be unconvincing. It did not accept that any of these events took place at all or as claimed, nor did it accept that persons continued to be interested in any relevant sense in the whereabouts of the applicant and his family, as had been claimed by reference to the content of letters from persons in Sri Lanka. g) In what appears to be a matter going to the Tribunal's assessment generally of the applicants' claimed fears as a whole, the Tribunal noted that, despite their claimed fears, the applicants did not depart Sri Lanka until some seven days after issue of visas to travel to Australia, nor had they attempted to return to Oman despite holding valid entry visas there. The Tribunal said – Had they indeed been in fear of their lives they would have left Sri Lanka as soon as they could by any means they could. It is also noted by the Tribunal in making this assessment that upon arrival in Australia the applicants had not applied for permanent protection visas but rather for a class of temporary protection visas apparently available at that time to any Sri Lankan citizen and had done so, as the applicant had said, "to kill some time." The Tribunal went on to say that the applicant and his wife had an incentive to seek to further their claims to remain in Australia, as all of the applicant's wife's family now live in Australia. It noted that the applicant had previously applied unsuccessfully to obtain a visitor visa to Australia. h) The Tribunal considered that the media report on the detention of a politician's son was, by virtue of what it clearly was concerned with, unhelpful to the applicants' case. i) The Tribunal then said: Having considered all the information, I do not accept that the applicants ever were threatened in any way by their brother's employer or any politicians of the government or police for reason of their knowledge or imputed knowledge of criminal intentions or actions on the part of the employer, the politicians, or the police. j) The Tribunal rejected the claim that any harm would come to the applicant and his family by virtue of them being UNP voters or being associated with the UNP through Trevon. It found that the claimed level of support of that organisation was of the most passive kind, while Trevon had not come to any harm in relation to his own activities in the 1994 election campaign. The Tribunal referred to and quoted from Country Information Reports, including reports of the Australian Department of Foreign Affairs and Trade, saying by reference to these that there was no information that ordinary people were harassed by pro-government supporters in Sri Lanka or, if there was, such harassment or violence only occurred at a particular time and the protection of the law was available in that regard. k) The Tribunal concluded by saying: I find that there is not a real chance that the applicants would be harmed by reason of their political opinion, imputed political opinion or membership of their extended family if they were to return to Sri Lanka now or in the foreseeable future. I therefore find that the applicants do not have a well-founded fear of persecution for this or any other reason if they were to return to Sri‑Lanka now or in the foreseeable future. 14 Since no individual claims were made by or on behalf of the balance of the male applicant's family, the Tribunal said that there was no basis upon which it could be satisfied that those members of the family were people to whom Australia would owe protection obligations independently of the claim of Mr Gomez. It found that, since the child's application for a protection visa was therefore dependent for grant upon success of the applicant's claims, the child would not be granted a visa either. 15 In short, the Tribunal rejected in a wholesale fashion the evidence and claims of the applicant. Before turning to the specifics of the ground of review set out in the written submissions I should note that, on the matter being called on for hearing this morning, Mr Gomez and his family were not legally represented. In discussion with Mr Gomez he indicated to me that in effect he had two fundamental complaints with the Tribunal's reasons and approach. Shorn of legal trappings they can be expressed as follows. The first is a general complaint that he was not accepted in his evidence and in his family's evidence about the circumstances of his claim. I accept that Mr Gomez and his family have, as they expressed to me, a deep disagreement with the findings of fact made by the Tribunal. 16 The second aspect of his complaint was a particular one, referred to in the written submissions, that being that neither the Minister through his delegate nor the Tribunal investigated the question of the terms of the police report about the accident. I will deal with this particular matter more fully below in dealing with the written submissions, but before turning to them I should add that, save and except for specific legal grounds identified in s 476 of the Act, I have no jurisdiction to supplant findings of fact made by the Tribunal, especially those made after the Tribunal has had the benefit of listening to witnesses before making them. 17 It sometimes appears to applicants in these kinds of cases that this Court should undertake a form of general appellate review of findings, sometimes of the most serious kind as here, about the truthfulness of applicants and their witnesses. It is simply not my function and I have no jurisdiction or power whatsoever to undertake such a general review. My task is limited to that which parliament has identified in s 476. I now turn to consider the application for review to this Court. 18 As noted earlier, the applicant filed on 28 February this year, pursuant to leave, an amended application styled as "particulars of grounds". I have before me in addition the written contentions of fact and law of the same date, which I have read and considered. The applicant briefly elaborated his contentions orally before me today in the manner to which I have referred above. 19 If I may say so, with respect, the manner in which the applicant's written contentions are set out, is in part, revealing of a misconception as to the nature of this sort of review, and that is otherwise apparent in parts of the applicant's argument to which I will come. The written submission advances some 10 paragraphs by way of contentions of fact. These are the contentions of fact to which I have alluded earlier and set out. They are simply descriptive of the claims the applicant made to the Tribunal which were comprehensively dealt with in an unfavourable way by the Tribunal. 20 The contentions of fact with which I have to deal are the facts as found, unless there is some amendment to those facts or difficulty with those facts caused by a legal reason reflected in one of the subparagraphs of s 476. The applicant's case is advanced, as I understand it, on several grounds, those being paragraphs (a), (d) and (e) of subs 476(1) of the Act. In addition, there may also be embedded within the submissions a claim under paragraph (g) of subs 476(1) of the Act. I say that because, though I have difficulty assessing how it arises, the respondent Minister and his advisers have perceived such an attack and have dealt with it in their written submissions. 21 At least in relation to the grounds based on paragraphs (a) and (d) of subs 476(1) the same particulars are relied on. I will consider these first. Under the first ground put, based on para 476(1)(a), it is said that procedures were not observed that were required to be observed under the Act and regulations. Paragraph 476(1)(d), on the other hand, provides a ground of review of certain decisions where the decision was an improper exercise of the power conferred by the Act and regulations. Subsection 476(3) provides that the reference in para 476(1)(d) to an improper exercise of power is to be construed as a reference to, amongst other things, an exercise of discretionary power in accordance with a rule or policy without regard to the merits of the case: see para 476(3)(c). 22 The applicant's case on these two grounds is that the Minister failed to obtain information relating to the level crossing accident of June 1996, which information was contained in the Sri Lankan police report on the accident. As indicated by the Minister's counsel in submission before me, that has been taken as a failure of the Tribunal to make that same inquiry. It is not entirely clear from the submissions how it is put. Thus, I will deal with it on both bases, that is, the basis of a failure to exercise the power under s 56 of the Act (by the Minister and his delegate) and under para 427(1)(d) (by the Tribunal). 23 It is clear from a number of decisions of this Court that neither s 56 nor para 427(1)(d) create a duty in any general way upon a Tribunal or the Minister to make inquiries. Each is quite plainly a power. In relation to para 427(1)(d) I refer to the decision of Katz J on 15 March 2001 in Kabir and Others v Minister for Immigration and Multicultural Affairs [2001] FCA 248, where in particular from para [50] onwards his Honour sets out a number of authorities to support the proposition to which I have referred. 24 In relation to para 427(1)(d), I also refer to and am bound by the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 where, at para [86], their Honours agreed with the primary judge that para 427(1)(d) does not impose any duty on the Tribunal to make further inquiries. 25 In relation to s 56, I refer to the decision of Marshall J in Minh Cong Tran v Minister for Immigration and Multicultural Affairs [1998] FCA 1749, and his Honour's reference to the decisions of Mansfield J in Tam Anh Bui v Minister for Immigration and Multicultural Affairs of 9 April 1998 and Emmett J in Zeljana Velmir v Minister for Immigration and Multicultural Affairs, 9 July 1998. 26 Neither of those bodies of principle referred to in those cases, however, in my view, gainsay the proposition that there could be circumstances thrown up by a particular claim in its context where it could be said that the circumstances were such as to oblige the Minister or the Tribunal to consider whether it ought exercise such a power. Indeed, it is conceivable that there could be a confluence of circumstance and claim whereby there came to be an obligation to exercise the power. 27 I do not say that this conclusion is one which is necessary for this case. None of the body of case law to which I have just referred can gainsay, in my view, the proposition founded in the considerations expressed by Ryan J in Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 or Finn J in Yusuf v Minister for Immigration and Multicultural Affairs at first instance ([1999] FCA 1053) that there could be circumstances in which there was an obligation on the Minister or the Tribunal to consider whether to exercise the power. A question might well arise, but it is unnecessary to decide here, that there could be circumstances of such a character and in such a context that the power in s 56 and para 427(1)(d) had to be exercised to fulfil some obligation on the Minister or the Tribunal to deal adequately or fully with a particular jurisdiction for its exercise. It is unnecessary, however, to explore any such question in this case. 28 For the reasons I express below, I do not think that this case throws up any such material whereby it could be said that in some relevant fashion under s 476 that duty to exercise the power had arisen. Section 420 is relied upon as founding the grounds of review under paras 476(1)(a) and (d). It is said that a procedure was not followed which ought to have been followed. This proposition is capable of rejection at the level to which I have already referred, that is, that there was no procedure not followed which ought to have been followed simply because a power was not exercised which was a power not accompanied by a duty for its exercise. But even if one sense that were wrong, the High Court in Eshetu v Minister for Immigration and Multicultural Affairs (1999) 197 CLR 611 makes it abundantly plain that any such error in procedure under s 420 is not a matter which falls within s 476(1)(a) to the extent that the failure to follow the procedure is said to have led to the Tribunal not having dealt with the matter in accordance with para 420(2)(b); that is, acting in accordance with substantial justice on the merits of the case, which is the ground claimed here. 29 In my view, and in the context of this case, the Tribunal was under no duty to make the further inquiry to which reference is made in the submissions. It had a power. It was not obliged to exercise it and I do not see the circumstances as such as leading to the conclusion that in some fashion a failure to further exercise any consideration of the matter by investigation led to the Tribunal failing to fulfil its jurisdictional tasks as contemplated for it by s 414 so as to lead to any jurisdictional error of the kind dealt with by the High Court in Craig v South Australia (1995) 184 CLR 163 and Yusuf v Minister for Immigration and Multicultural Affairs [2001] HCA 30 and which might, if otherwise made out, lead to an error under paras 476(1)(b) or (c). 30 I turn now to consider the alleged error of law being an incorrect interpretation or application of the law said to found grounds of review under para (e) of subs 476(1). In paras 17 and 18 of the applicant's written submissions it is alleged that the Tribunal "has fallen into error in that the evidence indicated a real ground for believing the applicant is at risk of persecution and that the critical question is whether the factual findings were clearly open to the Tribunal. The Tribunal has refused, neglected and/or ignored to make such inquiry as may have been necessary to make a finding on a material question of fact", being the circumstances of the accident. It is said that the finding that the level crossing incident was accidental only is infected with error in consequence of the failure to obtain the police information. 31 The Tribunal made a finding that there was no other explanation for the level crossing collision other than that it was an accident. It very clearly stated, for the reasons it gave, which I have listed above, that it simply did not accept that the other matters and events claimed were true or took place either at all or as claimed. It may be that the applicant deeply disagrees with the factual findings of the Tribunal. However, I am unable to detect any reviewable error in the manner in which the Tribunal has made those findings or in the decision that it arrived at based on those findings. Nor do I see any basis for an application of para (g) under subs 476(1). 32 I should add that, while it is perhaps difficult or impossible for the applicant to know of the contents of any further police documentation, which he says the Tribunal should have obtained, I am not assisted in consideration of this matter by any understanding of what the further information would objectively have shown. As I said, I do not say that by way of a criticism of the applicants but it reinforces in my view the fact that, to the extent that there may be a circumstance whereby one could conclude that the power under s 56 or para 427(1)(d) could become in some circumstances a duty, this matter is a long way from such a circumstance. It simply cannot be the case that the Tribunal has to track down all documents which bear and touch upon the inquiry being made of it. 33 The Tribunal, for a number of reasons, took a distinctly unfavourable view of the evidence put forward on behalf of the applicants at the hearing. That no doubt is something which it is difficult for the applicants personally to accept, and I understand that. Many litigants in cases have, necessarily, findings made against them which they do not think are correct. It is the nature of the process that someone has to decide these things, and in this case the Tribunal did make findings against the applicant and the evidence brought by him and on behalf of him and his family which were distinctly unfavourable. 34 What the applicants say in effect is that if another body of inquiry had been undertaken the whole investigation would have come to another result. This is said when it cannot be shown the nature or result of the inquiry said to have been mandated otherwise by the Act or the circumstances. There is a circularity in the difficulty facing the applicants which I appreciate, but in one sense it is a circularity brought about by process and by the need for the process at some point to stop. 35 It follows from what I have said that in my view the application must be dismissed. 36 The orders I make today are, for the reasons I have given, that the application be dismissed. 37 I adjourn part-heard the balance of the matter in relation to costs to Tuesday 17 July 2001 at 4.30 pm in Sydney and Melbourne by video-link, should that video-link be available. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 26 July 2001 Mr A Gomez appeared on his own behalf Counsel for the Respondent: Mr S G E McLeish Solicitor for the Respondent: Clayton Utz Date of Hearing: 13 July 2001 Date of Judgment: 13 July 2001