Case: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601
Outcome: considered
appellant is a male Tamil-speaking Muslim from Sri Lanka. He came to Australia on a passport and student visa issued to his brother. He applied for a protection visa under s 36 of the Migration Act 1958 (Cth) claiming that he was a refugee to whom Australia owed protection obligations under the Refugees Convention. The application for a protection visa was refused by a delegate of the Minister. The delegate's decision was affirmed by the Refugee Review Tribunal. The appellant later applied to the Minister under s 417 of the Act, seeking a more favourable decision. The Minister declined to exercise his powers under that section. The appellant then became a member of the group represented by the plaintiffs in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. When judgment in that case was handed down in favour of the plaintiffs, directions were given to enable the appellant to challenge the tribunal's decision based on the reasoning of the High Court. This he did in an application to the High Court for the issue of constitutional writs. The application was remitted to the Federal Court and in due course was transferred to the Federal Magistrates Court, where it was dismissed on its merits: M1014 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs &amp; Anor [2005] FMCA 1652. The appellant now appeals that decision. The basis upon which the appellant sought a protection visa was that Sri Lankan authorities suspect him of being a supporter of the Liberation Tigers of Tamil Elam (LTTE). The appellant says that he fears being persecuted as a dissident if he returns to Sri Lanka. The appellant claimed that he was tortured and imprisoned by Sri Lankan authorities following the discovery, by police, of weapons stored at the house in which he lived. The weapons belonged to the LTTE. The appellant claimed that these weapons were stored, against his wishes, by his brother and a Tamil-Hindu friend. In its reasons, the tribunal found the appellant's claims that he was implicated in LTTE gun-smuggling, that he was threatened by the LTTE or its agents, that he was detained and mistreated by government security forces and that his brothers have been harassed on his account, to be 'contrived'. Amongst other things, the tribunal did not accept that LTTE operatives would entrust a Tamil-speaking Muslim with information about weapons. In support of this finding the tribunal referred to 'the radical political divide between Tamil-speaking Muslims and the LTTE'. The appellant applied for a writ of certiorari to quash the decision of the tribunal on the basis that the decision was affected by jurisdictional error. The appellant's complaint related to the procedures that were adopted by the tribunal in dealing with his application. As in Muin , the appellant contended that certain documents containing country information that were referred to in part B of the delegate's reasons for decision, and which are said to be favourable to the appellant's case, were not provided to the tribunal. The appellant alleged that as a result of correspondence he received from the tribunal to effect that '[the tribunal] would ask the Department for, and would look at, all of the material relating to [the appellant's] case', he was mislead into believing that the tribunal had considered the part B documents and, as a result, he had been denied the opportunity to put this information before the tribunal. Specifically, the appellant said that 'had [he known] that the tribunal had not looked at this material (especially the parts that would have helped [his] case) [he] would have tried to make sure that the tribunal was aware of that material.' The appellant claimed that this failure to accord natural justice constitutes jurisdictional error and constitutional writs should issue. In his reasons, the Federal Magistrate made four findings which were fatal to the appellant's case. First, the Federal Magistrate concluded that 'the credibility findings against the applicant clearly stand alone in relation to [his] application. They are not dependent upon whether or not the tribunal did or did not have in its possession the part B documents'. Second, the Federal Magistrate was satisfied, on the balance of probabilities, that the tribunal did in fact have the part B documents before it. Third, the Federal Magistrate found that the appellant had 'failed to identify with sufficient clarity favourable material within the part B documents which he may have drawn to the tribunal's attention...'. Fourth, the Federal Magistrate found that the appellant had not 'identified with any degree of certainty the manner in which he was mislead into believing that the tribunal had received and considered all of the part B documents'. As a result the Federal Magistrate dismissed the application. The question before this court is whether these findings were reasonably open to the Federal Magistrate. Moreover, if it was reasonably open to the Federal Magistrate to find, as he did, that the tribunal had the part B documents, the appellant's other grounds of appeal cannot succeed. The second basis upon which the appellant says the court should infer that the part B documents were not provided to the tribunal is the assertion that, at the time of the appellant's application to the tribunal, there was a 'practice of the Secretary... not to forward country information documents referred to in part B of the delegate's reason for refusal'. As evidence of this practice the appellant sought to rely on the agreed statement of facts in Muin in which it was agreed that the Department did not include copies of the part B documents in the file concerning the plaintiffs that was dispatched to the tribunal. The respondents do not make the same concession in this proceeding. This submission fails to take into account s 435(1) of the Migration Act 1958 (Cth). That section provides that ' a member [of the Refugee Review Tribunal] has, in the performance of his or her duties as a member, the same protection and immunity as a member of the Administrative Appeals Tribunal '. This is the same protection and immunity as a Justice of the High Court: Administrative Appeals Tribunal Act 1975 (Cth), s 60. This immunity, which includes immunity from suit and compulsion to give evidence, will prevent any adverse inference being drawn from a failure by a member of the tribunal to give evidence: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601, paras 25, 118, 196-199. The rule extends to a failure to give evidence in relation to any aspect of the decision-making process including whether or not the tribunal had read, obtained, considered or taken into account particular documents: Herijanto v Refugee Review Tribunal [2000] HCA 49 ; (2000) 170 ALR 379.