C A T C H W O R D S
ADMINISTRATIVE LAW - Procedural fairness - Immigration - Refugee status application by Sri Lankan national of Tamil extraction - Appeal to Refugee Review Tribunal - Delay of six months between final submissions to Tribunal and decision - Political developments during that period which, in the opinion of Tribunal, tended against the conclusion that the applicant's fear of persecution was well-founded as at the date of decision - Failure of Tribunal to draw these matters to applicant's attention or afford opportunity to comment - Tribunal influenced by belief that applicant could relocate in safer part of Sri Lanka with assistance from relatives or friends - Relocation not raised at hearing or in submissions - No evidence as to availability of relatives or friends currently able and willing to assist relocation - Breach of obligation of procedural fairness.
Administrative Decisions (Judicial Review) Act 1977, s5
Judiciary Act 1903, s39B
KOMATHI DAVID v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
No. NG238 of 1995
CORAM: WILCOX J
PLACE: SYDNEY
DATE: 12 OCTOBER 1995
IN THE FEDERAL COURT OF AUSTRALIA )
) No. NG.238 of 1995
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: KOMATHI DAVID
Applicant
AND: MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
First Respondent
ROSLYN SMIDT sitting as the REFUGEE REVIEW TRIBUNAL
Second Respondent
CORAM: WILCOX J
PLACE: SYDNEY
DATE: 12 OCTOBER 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. The decision of the Refugee Review Tribunal dated 10 March 1995 in relation to the appeal of Komathi David be set aside.
2. The matter be remitted to the said Tribunal for further determination.
3. The Minister for Immigration & Ethnic Affairs pay the applicant's costs of this proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
) No. NG.238 of 1995
NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )
BETWEEN: KOMATHI DAVID
Applicant
AND: MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
First Respondent
ROSLYN SMIDT sitting as the REFUGEE REVIEW TRIBUNAL
Second Respondent
CORAM: WILCOX J
PLACE: SYDNEY
DATE: 12 OCTOBER 1995
REASONS FOR JUDGMENT
WILCOX J: This application is made under the Administrative Decisions (Judicial Review) Act 1977 and s.39B of the Judiciary Act 1903. It challenges a decision of the second respondent, Roslyn Smidt sitting as the Refugee Review Tribunal, in connection with an application by the applicant, Komathi David, for recognition as a refugee. In accordance with usual practice, Ms Smidt filed a submitting appearance; but the Minister for Immigration and Ethnic Affairs, who was named as first respondent, appeared by counsel (Ms R Henderson) to defend her decision.
The facts
Ms David is of Tamil extraction. Although there are uncertainties about her personal history, it appears she was born in 1963 in Batticaloa, a town on the east coast of Sri Lanka. She has two children, a son born in June 1984 and a daughter born in August 1990. They reside with her in Australia. She married the children's father, apparently also a Tamil from Batticaloa, in February 1986. Ms David does not currently reside with her husband. His present whereabouts are uncertain but there is no reason to believe he is in Australia.
It appears that Ms David grew up in the Batticaloa area and continued to reside there until shortly after her marriage. Her son was born in Batticaloa. During the 1980s, there was considerable communal violence in the Batticaloa area, it being a portion of the country in which the Liberation Tigers of Tamil Eelam ("LTTE") were active.
It seems that Ms David's husband left Batticaloa not long after her marriage to him. According to Swiss migration records, he entered Switzerland in October 1986, possibly having travelled via India. At some stage after her husband left Batticaloa, Ms David travelled to Negombo, a town on the west coast of Sri Lanka. She stayed with her sister for a period, the duration of which is uncertain. Ms David travelled to India, where she may have stayed some time, before joining her husband in Switzerland in May 1988. Their daughter was born in Switzerland.
Mr and Mrs David sought asylum in Switzerland. Apparently, this application was not granted; it may not have been finally determined. In April 1990 they applied to migrate to Australia but this application lapsed, or was withdrawn, on 16 September 1990. According to Swiss records, Ms David told Swiss officials that she proposed to return to Sri Lanka. Instead, she travelled to Australia, arriving on 22 November 1990.
In her first application for refugee status, Ms David claimed to have travelled to Australia direct from Sri Lanka and to have left that country on 19 November 1990. She said her daughter was born in Sri Lanka and her husband was still there. Her only reference to political activity was to say that she, her husband and all members of her family "were supporters of the Federal Party and later the Tamil United Liberation Front (TULF)". As I understand the position, TULF is a political party represented in the Sri Lankan Parliament. It does not engage in terrorist activities.
After investigation of the case and questioning, Ms David admitted her sojourn in Switzerland; including the fact that her daughter was born there. She said she left her husband because of his violence towards her and that she came to Australia without his knowledge. Ms David also alleged LTTE violence towards members of her family, involving the deaths of some of them.
The hearing before the Tribunal took place on 6 June 1994. Ms David was accompanied and assisted by Narelle Yeo, a case worker employed by the New South Wales Refugee Advice and Casework Service ("RACS"). Ms Smidt attempted to reconcile the various factual accounts given by Ms David and to obtain explanations of the discrepancies that remained. Some curious coincidences came to light. Understandably, there were questions about Ms David's credibility.
Towards the end of the hearing, Ms David stated for the first time that she had been raped by Sri Lankan army officers in Batticaloa. Ms Smidt rightly thought it important to investigate this claim, late though it was. She allowed RACS the opportunity to have Ms David assessed by a clinical psychologist, Tamara Kitson. In a report dated 23 August 1994, Ms Kitson set out a detailed history of the alleged sexual assault that she had taken from Ms David. It is not necessary to repeat it. It is sufficient to say that, if the history is substantially correct, it would support a finding by the Tribunal that, at least at the time of her departure from Batticaloa, Ms David had a well-founded fear of persecution. I say this because Ms David told Ms Kitson that, after the assault, the soldiers realised she was a woman living alone. They sexually harassed her and this was the reason she left home and went to her sister's house at Negombo. Ms Kitson summarised the history, and Ms David's subsequent reticence, in this way:
"Ms David reported being imprisoned and sexually assaulted by two army officers in Sri Lanka in 1986. Her reported behaviour, emotional reactions and psychological inventory scores were consistent with those of sexual assault victims. Considering the situation in which she was required to disclose this traumatic information and her cultural beliefs that she had no right to live following rape, her difficulty in disclosing this information in the context of a Tribunal interview is understandable."
Ms David had told Ms Kitson that the Tamil principle was that a raped woman must kill herself, but she had not followed that principle because of the effect her death would have on her son.
Under the hearing "Psychological Assessment", Ms Kitson reported:
"Her scores on the Impact of Event Scale (a recognised self report measure of post trauma symptoms) indicated that she still suffered from a clinically significant post trauma reaction in relation to the rape in 1986. Her score placed her in the severe range of symptoms."
Ms Kitson's report was sent to Ms Smidt. Early in September 1994, RACS forwarded written submissions to her. Despite at least one RACS reminder in the meantime, a delay of six months then ensued before Ms Smidt issued her decision, on 10 March 1995. There may have been good reasons for the delay but, as will appear, it had unfortunate effects.
The Tribunal's decision
It is not necessary for me to set out, or even summarise, the whole of Ms Smidt's reasons for decision. The reasons are lengthy (20 pages). The findings of fact and reasoning process are stated carefully and comprehensively. Although counsel for Ms David, Ms E Wilkins, raises several points in relation to the decision, only two warrant discussion. Both points are aspects of an argument that, under the circumstances, Ms David was denied procedural fairness.
In order to deal with the first point, it is necessary to mention that Ms Smidt accepted Ms Kitson's opinion "that victims of sexual assault find it extremely difficult to provide details of their treatment, particularly in circumstances such as a formal hearing at the Tribunal and that Ms David presented during her interview with Ms Kitson in a manner consistent with someone under considerable stress such as that experienced by women who have been victims of sexual assault". Nonetheless, the facts that Ms David had not earlier mentioned the assault and that, in her interview with Ms Kitson, Ms David had claimed she was assaulted because her husband was active in LTTE (a claim of activity that Ms Smidt did not accept) caused Ms Smidt "to seriously doubt that she was assaulted at all". She added, however, that there was "evidence that village women were raped by soldiers during security sweeps and the possibility that Ms David may have been threatened or even assaulted by soldiers cannot be completely ruled out. However, I do not accept that she was raped in the circumstances she has claimed, that is by soldiers seeking her husband because of his involvement in the LTTE". After referring to other matters, Ms Smidt said:
"The issues which remain to be determined are therefore, whether Ms David is at risk of persecution in Sri Lanka because of her support for the Federal Party and the TULF, her Tamil ethnicity or her status as a woman alone or a woman who has been assaulted in the past or her status.
In order to properly consider these matters, it is first necessary to understand the current situation in Sri Lanka."
Under the heading "The current situation in Sri Lanka", Ms Smidt referred to the situation that had applied, in respect of LTTE violence, over a period of 12 years until a truce was negotiated in January 1995. Most of what she said related to events that occurred after the June 1994 hearing, many of them after the September 1994 written submissions. She referred particularly to the Parliamentary election in August 1994 and actions taken by the new government elected at that time. She concluded this section of her reasons with some general comments:
"Some observers see these changes as significant and lasting. A recent human rights delegation from Norway concluded that the war has ended and the human rights situation in Sri Lanka has improved to such an extent that it is now safe to return Tamil exiles to Sri Lanka. Justice Ministry officials point out that other countries have made similar assessments and Sweden and Switzerland have been returning Tamils for some time (Reuters Oslo 25 January 1995).
Others are less optimistic. Asiaweek notes that the LTTE used two previous cease-fires to replenish their armouries, rest and regroup before resuming fighting more fiercely than before while articles in the British Times newspaper point out that Singhalese nationalist (sic) will resist concessions which greatly (sic) substantial autonomy to the Tamil north.
From the evidence it is clear that the government's human rights performance has improved considerably in the last year or so and the new government appears to be committed to ending the conflict, further improving its human rights record and investigating past abuses. However, as pointed out in advice from UNHCR received on 3 March 1995, the situation remains fragile. In these circumstances I consider that the possibility of a return to open conflict and reimposition of the emergency regulations cannot be ruled out."
"UNHCR" is, of course, the United Nations High Commissioner
for Refugees.
After
this general discussion, Ms Smidt posed the question: "What then are Ms David's prospects on
return to Sri Lanka?" She said that
Ms David came from the Eastern Province, "a region which has experienced
considerable violence during the civil war as government troops and the LTTE
have fought for control of the region".
She noted that, since the early 1990s, government forces have controlled
Batticaloa town and the other main towns of the region and the
remainder of the region is "officially cleared" of LTTE. She said:
"LTTE FORCES are currently reported to be largely confined to the jungle in the east of the region (Information provided by UNHCR to the Swiss Appeals Board on 14 October 1993 (UNHCR Swiss Report) para. 3.14 and Reuters Report of 7 February 1995). Despite this the LTTE has continued to operate throughout the region and the sporadic clashes continued until the recent cease-fire (see for example Inform: Sri Lanka Information Monitor Situation Report December 1994 p 1-4)."
Ms Smidt referred to "some improvement in the conduct of government forces in the region in recent times". She said "there have been no reports of massacres or vigilante killings in Sri Lanka in recent years and the number of detentions and disappearances has declined considerably". She referred to figures concerning disappearances in the Batticaloa region contained in a cable to the Department of Foreign Affairs and Trade dated 14 May 1993 and went on:
"In these circumstances, I find the chance that Ms David would experience treatment amounting to persecution as result of her political opinion or imputed political opinion at the hands of the government security forces in Batticaloa to be remote. As discussed above, I do not accept that Ms David, her husband or other members of her immediate family were ever involved with or supporters of the LTTE. Furthermore, there is no reason to suppose that she would be seriously suspected of supporting them on her return. She is, if anything, likely to be remembered as a supporter of the TULF, a legal organisation which co-operates with the government.
I also find the chance that Ms David would be targeted by the LTTE as a result of her political opinion if she returned to her home in the Batticaloa region to be remote. While I acknowledge that the LTTE has persecuted those belonging to rival groups or believed to oppose their views, they did not take any serious action against Ms David or her husband prior to their departure and it seems unlikely that they would take a great interest in her after an absence of some eight years. Furthermore, the Batticaloa region has been largely under government control for the last four years.
It has also been argued that all Tamils in the north and east of Sri Lanka are at risk of persecution as a result of their ethnicity or imputed political profile because both sides have used excessive force against non combatants, carried out reprisal attacks against civilians and, in the case of the government, arbitrarily detained or disappeared civilians.
Ms David also fears that she is at greater risk because she is a woman alone and also at risk of sexual assault. In my view the recently signed peace treaty means that the chance that Ms David would experience serious harm for these reasons in the immediate future is remote. Furthermore, I consider it unlikely that she would experience harm amounting to persecution merely by virtue of her Tamil ethnicity, even if the truce breaks down. As noted above, while there have been sporadic attacks in Batticaloa in recent times, the area has not been subjected to widespread conflict and there have been improvements in the conduct of government troops, with significant reductions in the numbers of detentions and disappearances over recent years. However, as pointed out above, determination of whether an applicant has a well-founded fear of persecution requires consideration of their prospects not merely in the area in which they resided prior to departure, but in the country as a whole. I consider that Ms David could avoid such harm by relocating to a part of Sri Lanka firmly under government control, such as Colombo or Negombo where her sister lives. It is therefore not necessary to determine whether her chance of persecution in Batticaloa in the event that conflict resumes is real or remote, or whether the harm in these circumstances comes within the scope of the Convention.
I find the chance that Ms David would be targeted by the authorities or the LTTE in those areas of Sri Lanka firmly under government control as a result of her political opinion or because a political opinion was imputed to her to be remote. As discussed above, I do not accept that she or her husband were involved with the LTTE or any other group considered a threat to the government of Sri Lanka. Furthermore, while the LTTE sporadically carries out terrorist attacks on high profile targets, Tamils who oppose or are seen to oppose the LTTE are at risk of harm from them in Colombo ..." (sic; the word "not" may have been omitted inadvertently.)
Ms Smidt turned to the question whether Ms David would be at risk of persecution in areas like Colombo because of her Tamil ethnicity. She said that, although relations between Tamils and Singhalese have been greatly strained by the ethnic conflict, there have been no outbreaks of ethnic violence in Colombo since 1983. Ms David might experience social and economic difficulties but there was no evidence that Tamils "are generally at risk of serious discrimination, communal violence or lengthy periods of detention involving ill treatment (in) these areas as a result of their ethnicity". After some detailed comments about the treatment of Tamils in Colombo, Ms Smidt found:
"the chance that Ms David would be detained for more than a brief period while checks on her identity were carried out or that she would be ill treated in detention in the reasonably foreseeable future to be remote".
After considering some other matters, Ms Smidt said:
"The final question for the Tribunal to consider is whether it is reasonable to expect Ms David to relocate within Sri Lanka. I acknowledge that it would not be easy for Ms David and her children to establish themselves outside their home region in Sri Lanka. They have been absent from the country for a considerable time, unemployment rates are high and government economic assistance would no doubt be limited and relations between Tamils and Singhalese are no doubt strained, even in areas outside the war-zone. However, I do not consider that the protection Ms David would find in areas outside the north and east would be illusionary or unpredictable, or that it would fail to reach basic norms of civil, political and socio-economic human rights. As discussed above, Tamils have the same civil, political and socio-economic rights as Singhalese and do not face serious discrimination in these areas. I might perhaps have found it unreasonable to expect Ms David (to) relocate internally had she had not friends or relatives outside the north and east able to assist her. However, I note that she has a sister and brother-in-law in Negombo with whom she stayed for several months after first leaving Batticaloa and who could no doubt assist her again should she return."
Counsel's contentions
None of
the information, relied on by Ms Smidt, concerning events in Sri Lanka between
the date of the hearing and the date of her decision, was drawn to the
attention of Ms David or RACS. Nor was
there any discussion, at the hearing or otherwise, of the practicality of Ms
David relocating in Negombo or Colombo.
Ms Wilkins argues that, in this situation, the decision denies
procedural fairness. She concedes that Ms
David would not have been able to comment, from personal knowledge, about
events in Sri Lanka after June 1994. But
she says that, if Ms David and her advisers had known the factual assumptions
being made by the Tribunal, they could have checked their accuracy and
corrected any errors.
In making this submission, Ms Wilkins referred to an affidavit by Ms Yeo
stating the course she would have taken if the Tribunal had given her access to
the material upon which it relied in respect of the alleged change in the Sri
Lankan political situation since the hearing.
Ms Yeo said:
"Had this material been made available to RACS for comment I would have further researched the issue, consulted other migration agents and legal practitioners familiar with the political situation in Sri Lanka and made additional submissions and provided further evidence to the RRT to the effect that there had been no significant and/or lasting change in the political situation in Sri Lanka. In particular I would have obtained further historical information to support a submission that a ceasefire in Sri Lanka could not be called a lasting and significant change in the political situation in Sri Lanka, and that it should not adversely affect Ms David's claim to be a refugee. I would have taken the opportunity to provide the RRT with recent reports from Asiawatch, Human Rights Watch and Amnesty International regarding the political situation in Sri Lanka."
In relation to Ms David's prospect of relocating in Negombo, Ms Wilkins points out that there is no evidence that she has "friends or relatives outside the north and east able to assist her". The only evidence before Ms Smidt was that Ms David's sister was living in Negombo, apparently with her husband and family, before Ms David left Sri Lanka in 1987 or 1988. There is no evidence as to whether or not she still lives there or concerning her ability or willingness to assist Ms David, and her two children, if they were to attempt to relocate in Negombo.
On behalf of the Minister, Ms Henderson disputes that Ms Smidt's failure to reveal the information she had obtained about public events in Sri Lanka amounted to a denial of procedural fairness. In relation to the obligation of a decision maker to reveal information obtained otherwise than from an applicant and detrimental to the applicant's case, she draws a distinction between information about public events and personal information. She contends that the disclosure obligation is limited to personal information. In support of this contention, she cites the words of Mason J in Kioa v West (1985) 159 CLR 550 at 587:
"In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter." (Emphasis added.)
Conclusions
I do
not think the obligation to reveal relevant information is as limited as Ms
Henderson suggests. In Kioa the
relevant information was personal to the applicant; consequently, it was
natural for Mason J to use the language he did.
Neither Wilson J nor Deane J indicated the nature of
the information that must be revealed.
But the other majority Justice, Brennan J, discussed the content of the
obligation in a way that does not support the suggested limitation. He referred at 612-613 to the chameleon-like
quality of natural justice and quoted the well-known statement of principle by
Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118:
"The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth".
Brennan J also quoted the statement of Lord Morris of Borth-y-Gest in Furnell v Whangarei High Schools Board [1973] AC 660 at 679 about natural justice being "but fairness writ large and juridically. It has been described as 'fair play in action'". Brennan J added other citations, including from earlier decisions of the High Court of Australia. The point he was making was that the best way of determining what is required in a particular case is to ask oneself what would be fair, having regard to the nature of the decision and the circumstances under which it must be made. If that approach is taken, it seems erroneous to limit the present disclosure obligation to matters personal to Ms David.
Ms Smidt had to determine whether or not Ms David was a "refugee" within the meaning of the Convention relating to the Status of Refugees. That question required her to consider whether Ms David had, at the date of her decision, a well-founded fear of persecution, for one or more of the reasons stipulated in the Convention, if returned to Sri Lanka: see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. Having regard to the relevant date, Ms Smidt was correct in thinking it necessary to take into account political developments in Sri Lanka between the date of the oral hearing and her decision. It is apparent from her reasons that she thought these developments important. Ms Smidt thought that, even if Ms David retained a fear of persecution, the recent developments tended to refute the view that the fear was well-founded. In Ms Smidt's opinion, the recent political developments were facts antithetic to the case Ms David was putting to the Tribunal. But they were facts not previously canvassed. They could hardly have been. Most of the relevant developments, as Ms Smidt accepted them, occurred after the oral hearing; many of them after the written submissions. No doubt, Ms Smidt would have read and considered any additional written submission that RACS might have lodged, dealing with political developments since the earlier submissions. But passive willingness to do this was not enough. Ms Smidt had an obligation to disclose. Neither Ms David nor RACS knew what information Ms Smidt had received about events in Sri Lanka. They did not even know when she would be likely to reach a decision. They could not be expected to provide a running commentary on the Sri Lankan news reports.
If the information accepted by Ms Smidt is correct, there were major developments in the Sri Lankan situation during the period between the written submissions and her decision. Although Ms Smidt seems to have accepted that Ms David had a fear of persecution, it is apparent from her reasons that she placed considerable weight on these developments in rejecting the claim that the fear was well-founded. Having regard to that chain of reasoning, it was not sufficient that Ms Smidt get accurate information about the developments; as she may have done, though this is disputed. If procedural fairness was to be provided, it was necessary for Ms Smidt to give Ms David the opportunity to point out any errors in the information she had received and to state any additional relevant facts.
Even if I accepted Ms Henderson's submission that the disclosure obligation extended only to personal facts, her argument would encounter the difficulty that Ms Smidt failed to raise with Ms David the possibility of relocating in Negombo. Ms Smidt's reasons demonstrate that this possibility was decisive. Although Ms Smidt thought that the position had improved since the truce, she accepted that, as a woman living alone, Ms David would be at some risk in Batticaloa; she thought Ms David "could avoid such harm" by relocating at Colombo or Negombo. And the critical factor that caused her to accept the possibility of relocation at Negombo, at least, was the presence in that town of "friends or relatives ... able to assist her"; a subject about which she had no current information and which she had not raised with the applicant. It seems to me that it was clearly unfair to determine the application on a basis that did not arise out of the material put before the Tribunal by the applicant and that was not raised, at any stage, by the Tribunal for the applicant's comment.
Ms Henderson presses on me the submission that, if Ms Wilkins' argument is accepted, the Tribunal will experience practical difficulties in disposing of appeals. I do not agree. Particularly if decisions are given quickly, there will usually be no significant change in the political situation within the relevant foreign country between the hearing date and the decision date. The present problem stems from a conjunction of two factors: delay in the making of the decision and events in Sri Lanka during that time which, in the belief of the Tribunal, markedly changed the political situation and reduced the risk of persecution. If this conjunction of circumstances should be repeated in other cases, there would seem to be no problem in the Tribunal forwarding a summary of the relevant developments to applicants, or their representatives, with an invitation to comment or mention additional facts, in writing and within a specified time. Provided that a reasonable time was allowed, say 21 days, this procedure would discharge the Tribunal's obligation of fairness. Sometimes, it might also result in the factual picture being corrected or completed, with a consequential improvement in the quality of the decision.
The application for review should be granted. The decision of the Tribunal should be set aside and the matter remitted to the Tribunal for further determination. The Minister must pay the applicant's costs.
I certify that this and the preceding eighteen (18) pages
are a true copy of the Reasons for Judgment
of the Honourable Justice Wilcox.
Associate:
Dated: 12 October 1995
APPEARANCES
Counsel for the Applicant: Ms E Wilkins
Solicitors for the Applicant: Bryson-Taylor & Associates
Counsel for the Respondent: Ms R Henderson
Solicitors for the Respondent: Australian Government Solicitor
Dates of hearing: 2 October 1995
