FEDERAL COURT OF AUSTRALIA

Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 622

MIGRATION - application for protection visa - application for review of decision of Refugee Review Tribunal - whether Tribunal failed in duty to give reasons for preference for evidentiary material upon which it relied in rejecting applicant’s claims of detention - whether Tribunal failed in duty to give reasons for rejecting applicant’s submission as to effect of contrary evidentiary material - whether Tribunal based decision on existence of particular fact which did not exist - whether no evidence or other material to justify making of Tribunal’s decision - whether Tribunal failed in duty to give reasons for accepting particular evidentiary material regarding current situation in applicant’s country of nationality.

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(3)(b)

Migration Act 1958 (Cth) ss 5(1), 36, 415(1), 475(1)(b), 476(1)(g), 476(4), 486

Migration Regulations Sch 2, Subclass 866--Protection

Nagaratnam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 569, cited

Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267, cited

Brackenreg v Comcare Australia (1995) 56 FCR 335, distinguished

Logenthiran v Minister for Immigration and Multicultural Affairs (Wilcox, Lindgren and Merkel JJ; unreported; 21 December 1998), cited

Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 (Wilcox, Hill and Madgwick JJ; unreported; 19 March 1999), cited

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, followed

Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 (Lee, Branson and Marshall JJ; unreported; 21 June 1999), cited

Doss v Minister for Immigration & Multicultural Affairs [1999] FCA 979 (Beaumont J; unreported; 9 July 1999), cited

Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212, discussed

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited

Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854 (French, RD Nicholson and Finkelstein JJ; unreported; 25 June 1999), followed

Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480 (Lee, Whitlam and Weinberg JJ; unreported; 23 April 1999), followed

AJIT PRABAHARAN ARUDSELVAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1388 of 1998

KATZ J

SYDNEY

9 AUGUST 1999

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.                  The application for review of the decision of the Refugee Review Tribunal dated 20 November 1998 be dismissed.

            2.         The applicant pay the respondent’s costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     Section 486 of the Migration Act 1958 (Cth) (“the Act”) confers upon this Court jurisdiction with respect to “judicially-reviewable decisions”.   Among the decisions which are reviewable by this Court in the exercise of that jurisdiction are decisions of the Refugee Review Tribunal (“the Tribunal”): see par 475(1)(b) of the Act.

2                     In this proceeding, review of a decision of the Tribunal is sought.

3                     The decision concerned was made by the Tribunal on 20 November 1998, determining an application for review which had been made to it on 22 September 1997 by Mr Ajit Prabaharan Arudselvan.  The Tribunal’s decision affirmed an earlier decision which had been made by a delegate of the Minister for Immigration and Multicultural Affairs (“the delegate” and “the Minister” respectively) on 10 September 1997, determining an application for a protection visa which had been made to the Minister by Mr Arudselvan on 11 October 1996.  The delegate’s decision on that application had been to refuse to grant it.

4                     Protection visas are dealt with in s 36 of the Act, which provides as follows:

“36(1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

(The Refugees Convention referred to in subs 36(2) of the Act is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, while the Refugees Protocol referred to is the Protocol relating to the Status of Refugees done at New York on 31 January 1967: see the relevant definitions in subs 5(1) of the Act.  Subsequently in these reasons for judgment, I will refer to the Refugees Convention as amended by the Refugees Protocol simply as “the Convention”.)

5                     As well as the criterion for a protection visa appearing in subs 36(2) of the Act, additional criteria for a protection visa also appear in Sch 2 to the Migration Regulations (Cth) (“the Regulations”), in a Part of the Schedule headed “Subclass 866--Protection”.  However, for present purposes, the only relevant criterion is that set out in subs 36(2) of the Act.  That criterion (like those in Sch 2 to the Regulations) applies to decision making by the Tribunal, just as much as it does to decision making by the Minister: see subs 415(1) of the Act. 

6                     A necessary condition for Australia’s having protection obligations under the Convention to a non-citizen in Australia is that that non-citizen be a “refugee” within the meaning of Art 1A(2) thereof.  That provision defines a “refugee” to include a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of that person’s nationality and is unable or, owing to such fear, is unwilling to avail him/herself of the protection of that country.

7                     Mr Arudselvan claimed before the Tribunal to be a “refugee” within the meaning of Art 1A(2) of the Convention because he was outside Sri Lanka, the country of his nationality, owing to a well-founded fear of being persecuted for a Convention reason and was unwilling, owing to such fear, to avail himself of the protection of that country.  It was the rejection of that claim by the Tribunal which led it to affirm the delegate’s decision refusing to grant to Mr Arudselvan a protection visa.

8                     It is not in dispute that Mr Arudselvan is a twenty-eight year old member of the Sri Lankan Tamil community who was born in Colombo, the Sri Lankan capital, and who, apart from a relatively brief period of time as a teenager, which period had ended in 1985, had lived there all his life before leaving Sri Lanka for Australia in July 1996.  Between his return to Colombo in 1985 and his departure therefrom in 1996 he had been first a student and then an employee in the computer industry.

9                     It is convenient to deal with the various respects in which Mr Arudselvan sought review of the Tribunal’s decision in the same order as that in which he dealt with them in his oral submissions before me.  I therefore begin my consideration of Mr Arudselvan’s application for review of the Tribunal’s decision by quoting one paragraph to be found in that part of its statement of findings and reasons which was headed “Findings and Reasons for Decision”.  In that paragraph, the Tribunal was setting out certain findings of fact which it had made, rejecting certain assertions of fact which had been made by Mr Arudselvan in support of his claim for refugee status.  In order to make the paragraph easier to digest, I have subdivided it into five numbered paragraphs, as follows:

“[1] In the present case the Applicant claims that between 1985 and [the beginning of] 1993 the police checked Tamil houses in the [Colombo] neighbourhood where his family lived whenever an incident occurred in Jaffna or Colombo and that he and his brother were taken for questioning.

[2] He claims that after the assassination of President Premadasa on 1 May 1993 he and his brother were taken in on suspicion and kept in custody for three days[;] and

[3] he claims that in October 1995 he was again taken in for questioning after the bombing of the oil tanks at Kolonnawa.

[4] However, as I put to the Applicant in the course of the hearing before me, all the information available to me suggests that those detained in cordon and search operations are young Tamils from the North or the East (Australian Department of Foreign Affairs and Trade (DFAT), cable CL38234, dated 15 December 1995, CX12970; Amnesty International, Sri Lanka: Wavering commitment to human rights, August 1996, page 21).  Tamils like the Applicant, with identity cards showing Colombo as their place of birth and residence, have few problems (DFAT cable CL463, dated 24 January 1997, CX21595). 

[5] I consider that it is implausible for the Applicant to claim, as he does, that he was taken in for questioning between 1985 and [the beginning of] 1993, after the assassination of President Premadasa on 1 May 1993 and again after the bombing of the oil tanks at Kolonnawa in October 1995.  He does not suggest that there was any reason for suspicion to fall on him on these occasions other than the mere fact that he is a Tamil and, having regard to the information available to me, I consider it implausible that someone like the Applicant, whose National Identity Card shows Colombo as his place of birth and residence, should have been repeatedly arrested on suspicion in this manner.”

10                  It will be seen that the Tribunal separated those assertions by Mr Arudselvan of detention for questioning with which it was dealing in the quoted passage into three different time periods.  First, there was the period between 1985 and (what Mr Arudselvan had asserted was the beginning of) 1993.  Next, there was the period after 1 May 1993 (which I refer to hereafter as having been during that month).  Lastly, there was the period in October 1995.

11                  There are two points which should be made immediately about Mr Arudselvan’s assertions of detention for questioning during the three different time periods identified by the Tribunal.

12                  First, according to him, on every occasion of such detention for questioning during all three time periods, the security forces had come to his parents’ home and had arrested him there.  In a statutory declaration in support of his application for a protection visa, he had said,

“Between 1985 and the beginning of 1993 the army, and also the police, were checking Tamil houses in our neighbourhood whenever an incident occurred in Jaffna or Colombo.  Our house too was checked and I and my brother taken in for questioning.  …

On the 1^st May 1993 President Premadasa was assassinated by the LTTE [that is, the Liberation Tigers of Tamil Eelam].  Late that night houses in our area were raided by the police.  My brother myself and some other youth were taken in on suspicion….”

Further, while giving evidence before the Tribunal, he had said that the circumstances of his detention for questioning in May 1993 and October 1995 respectively had been as follows:

“They came to our house around 2.30 …, 3.00 in the morning, and … they were rounding up Tamil boys in that area and they arrested myself and my brother….

…

[T]his happened on a Thursday night, I think and they came to our place around early morning, around 4 o’clock, and they arrested me again….”

(It may be noted that, as well as speaking and being literate in Tamil, Mr Arudselvan also speaks and is literate in English and gave evidence in English before the Tribunal without the assistance of an interpreter. Further, although he only mentioned in his application for a protection visa his language abilities in Tamil and English, I infer from something he said in the statutory declaration to which I have referred above that Mr Arudselvan also speaks Sinhala.)

13                  The second point which should be made immediately about Mr Arudselvan’s assertions of detention for questioning during the three different time periods identified by the Tribunal relates to what, if anything, he had also asserted about his treatment during such detentions.  As to his asserted detentions for questioning in the period between 1985 and the beginning of 1993, Mr Arudselvan had also asserted that he had been “abused but not assaulted in custody at this time”.  As to his asserted detention for questioning in May 1993, Mr Arudselvan had also asserted that he had been “tortured” by the police during that detention and “abused and assaulted” by fellow detainees.  As to his asserted detention for questioning in October 1995, Mr Arudselvan had not asserted any attendant mistreatment during his period of detention, which period, he had asserted, had lasted for one day only.

14                  Given that any detention for questioning of Mr Arudselvan for one day only in October 1995, with no attendant mistreatment, would not amount to an act of persecution (see the discussion in Nagaratnam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 569 at 575-76 (Lee and Katz JJ)), his assertion of such detention appears to me to have been of little moment so far as his claim for refugee status was concerned.  Further, given that his assertion of detentions for questioning in the period between 1985 and the beginning of 1993 was coupled with a further assertion merely of some unspecified form of abuse during such detentions which did not rise to the level of assault, it can probably also be put to one side for present purposes.  (I note in that connection that, in written submissions made to this Court on Mr Arudselvan’s behalf, it was said that he did not claim to have been “mistreated” during those detentions.) However, one plainly cannot say that his assertion of detention for questioning in May 1993 can also be put to one side for present purposes, given his further assertion of, among other things, torture during that detention.  The occurrence or otherwise of that particular detention for questioning was a significant part of Mr Arudselvan’s claim for refugee status.

15                  It will be seen from the passage which I have quoted in par 9 above that the Tribunal relied upon three documents therein.  Apart from narrowing its reference to one of the three documents to a particular page therein, the Tribunal did not identify precisely which parts of the three documents were those upon which it was relying.  It is, however, possible to infer with some confidence which those parts were.  What I do in the following three paragraphs is set out from the three documents those extracts which appear to me to have been those relied upon by the Tribunal, adding emphasis to those parts of the extracts which use language similar to that used by the Tribunal in the quoted passage.

16                  First, in the December 1995 document, under the general heading of “Safety of Tamils in Colombo”, it had been said by the Australian Department of Foreign Affairs and Trade (“DFAT”),

“Since the LTTE attacks on oil and gas storage installations in the suburbs of Colombo on 20 October [1995] and the two LTTE suicide bomb attacks near the Defence Headquarters on 11 November [1995], there has been an increase in security activities in Colombo aimed at catching LTTE squads, which are known to be present in the city.  These activities have included … an increased use of sweep and search patrols and detentions.  There is no question that, while these activities are aimed at catching LTTE operatives, they do have an impact upon the lives of innocent people as well.

Of the security measures taken by the government, it is the sweep and search (or rounding up) patrols and the resulting detentions which have raised some concern among members of the Tamil community.  Most Tamils and human rights observers to whom we have spoken acknowledge that the government’s response to the very serious LTTE security threat is understandable.  But they claim that such operations can cause hardship to innocent Tamil people.  They claim that the round up operations do not discriminate sufficiently between likely suspects and obviously innocent persons and that many innocent persons are taken in and detained.  …

According to police sources, and confirmed by our other contacts, the typical profile of persons who would fall under scrutiny by security forces would be young Tamils from the north or east, but particularly those from the Jaffna peninsula or LTTE-controlled mainland areas.  The main ‘tool’ authorities use for identification is the National Identity Card (NIC).  When a sweep is conducted, only Tamil people will be stopped for detailed questioning.  If a person has an NIC showing a birthplace and/or residence in the north or east they will be asked to explain their presence in Colombo.  If they are unable or unwilling to explain their presence in Colombo, or if their explanation is considered implausible, they will be brought to a detention centre for further questioning or to allow relatives or business contacts to establish their bona fides.”

17                  Secondly, on p 21 of the August 1996 document, under the heading “Human rights violations by government forces and allied groups” and the subheading “Arbitrary arrests and detention”, it had been said by Amnesty International,

“Since the resumption of the armed conflict [in April 1995], thousands of Tamil people have been arrested, in particular in Colombo and the east, for suspected contact with the LTTE.  …

In Colombo, the number of arrests were particularly high in the aftermath of attacks attributed to the LTTE in the capital.  For instance, after the attack on the oil depots at Kollonawa in October 1995, at least 1,000 people were reported to have been arrested in the space of five days.  After the bomb attack on the Central Bank in late January 1996, another wave of arrests took place.  According to the HRTF [that is, the Human Rights Task Force, a government agency], during February 1996, 411 people were arrested in Colombo.

Among those most at risk of arrest were young Tamil men and women, particularly those who had recently travelled to Colombo from the north and east.  Tamil young people of Indian origin who traditionally live in the up-country area but travel to Colombo to seek employment were also frequently reported to have been arrested.”

18                  Thirdly, in the January 1997 document, under the heading “Human Rights Update: Tamils in Colombo”, it had been said by DFAT,

“We met with various human rights contacts, including key politicians from all parties, bureaucrats, academics, NGOs, credible journalists and diplomatic contacts, during December [1996] to discuss the present impact of the Emergency Regulations on the Tamil community in Colombo. … In most … respects, the situation for Tamils in Colombo has not changed substantially since the time of our last report in December 1995 The procedures remain largely the same….

The typical profile of persons who would fall under scrutiny by the security forces continues to be young Tamils from the north or east, but particularly those from the Jaffna peninsula or LTTE-controlled mainland area known as the Vanni region. … By contrast, Tamils with identity cards showing Colombo as their place of birth and residence have few problems.

…

The figures for arrest and detention fell slightly over the second half of 1996. This may in part reflect the decrease in the number of Tamils fitting the above profile coming to Colombo. …

The security forces are carrying out more spot checks and fewer of the sweep and search (round-ups) operations that cause concern among the Tamil community.”

19                  Having set out what I perceive to be those parts of the three documents relied upon by the Tribunal in the passage from its statement of findings and reasons which I have set out in par 9 above, I come now to Mr Arudselvan’s complaint arising out of that passage.

20                  Generally speaking, Mr Arudselvan submitted before me that, given both certain evidentiary material which had been before it and certain submissions which had been made on at least some of that evidentiary material, the Tribunal had made an error reviewable by this Court in its setting out of the findings of fact contained in the passage quoted in par 9 above.

21                  More specifically, it was submitted that, contrary to the Tribunal’s assertion in the passage quoted in par 9 above that all of the information available to it suggested that those detained in cordon and search operations were young Tamils from the North or the East and that Tamils like Mr Arudeslvan, with identity cards showing Colombo as their place of birth and residence, had few problems, there had been evidentiary material available to it which had suggested that Mr Arudselvan had been detained in those cordon and search operations (or round-ups) in which he had asserted having been detained on a number of occasions between 1985 and October 1995. That evidentiary material was said to have been contained in four documents which had been before the Tribunal: first, the very Amnesty International report upon the Tribunal had relied; secondly, a report of a joint fact-finding mission to Sri Lanka by the Danish Immigration Service and the Danish Refugee Council, which mission had taken place in February and March 1997; thirdly, written submissions made to the Tribunal on Mr Arudeslvan’s behalf dated 5 October 1998; and, fourthly, a report by the American State Department on human rights practices in Sri Lanka during 1997. (I will refer to that evidentiary material hereafter as the “contrary evidentiary material”.)

22                  It was further submitted that, in the written submissions dated 5 October 1998, submissions had been made as to the effect of the contrary evidentiary material contained in those written submissions.

23                  It was finally submitted in substance that the error reviewable by this Court which the Tribunal had committed was in failing to give, in the passage quoted in par 9 above, its reasons both for its preference for the evidentiary material upon which it relied, as opposed to the contrary evidentiary material, and for its rejecting the submissions which had been made in the written submissions of 5 October 1998 as to the effect of the contrary evidentiary material contained in those written submissions. Support for the submission that the Tribunal had committed that reviewable error was said to be found in the following decisions of this Court: Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 (Woodward, Jenkinson and Foster JJ); Brackenreg v Comcare Australia (1995) 56 FCR 335 (Sheppard J); Logenthiran v Minister for Immigration and Multicultural Affairs (Wilcox, Lindgren and Merkel JJ; unreported; 21 December 1998); and Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 (Wilcox, Hill and Madgwick JJ; unreported; 19 March 1999).

24                  The submissions made to this Court on Mr Arudselvan’s behalf to which I have referred above were first made in writing; however, those written submissions did not identify precisely which parts of the four documents upon which reliance was being placed in making them. Matters improved somewhat at the oral hearing, when I was taken on Mr Arudselvan’s behalf to particular passages in three of the four documents concerned (although there was still no reference made to any particular passage(s) in the American State Department document, which document I ignore hereafter).

25                  In the following ten paragraphs, I will refer to and comment upon those passages in the three documents which were relied upon in the oral submissions made before me on Mr Arudselvan’s behalf as constituting both the contrary evidentiary material and the submissions made on some of that material.

26                  First, as to the Amnesty International document, the passage relied upon, which, like the material I have already quoted in par 17 above, appeared under the heading “Human rights violations by government forces and allied groups” and the subheading “Arbitrary arrests and detention”, was as follows:

“The Secretary … [of the] Ministry of Defence and [the] IGP [that is, the Inspector General of Police] maintained that people were only arrested on ‘reasonable grounds’.  These, they explained, included things such as having recently travelled from the north and east, having a relative who is known to be or have been a member of the LTTE, anonymous petitions, information provided by other prisoners or not being able to substantiate the reason for your presence in certain [the next word is missing; presumably ‘areas’ was intended].”

27                  I note immediately that none of the grounds of arrest referred to in the passage quoted in the preceding paragraph had been, on Mr Arudselvan’s case, applicable to him, so that it is difficult to see how that passage tends to support a conclusion that he had been arrested on any occasion between 1985 and October 1995.

28                  Secondly, as to the Danish document, before quoting any passages from it, I should say something about its structure.  The document was relevantly reporting on the security situation for Tamils in Colombo and, more particularly, discussing the question whether Tamils were subject to special checks and, if so, on what scale and how intensively.  The special checks being discussed were of three types: checkpoints on public thoroughfares; round-ups; and searches of premises and vehicles for weapons.

29                  The passages from the Danish document relied upon in oral submissions on Mr Arudselvan’s behalf were as follows:

“At a checkpoint, everyone stopped was asked to show his or her identity card (as mentioned in 1 above) [which was headed ‘What is the significance of the national identity card?’].  If the name showed the person to be a Tamil, in some NGOs’ view, this would in itself be sufficient for him to be questioned further.  Other NGOs thought that only Tamils born in Jaffna risked further questioning.  Some NGOs pointed out that young Tamil men and women, especially, formed a particularly vulnerable group and others took the view that Tamils from the lower social classes were at greater risk of further interrogation than middle‑class Tamils.

The Family Rehabilitation Centre, for instance, said that in the past only unemployed young Tamil men had risked arrest, but Tamils from better social backgrounds were now also at risk.  An example given was of a 60‑year old woman who had been detained for three weeks in Colombo (Cinnamon Garden police station).  Having said that, if a young man had a job in Colombo, he would not normally be harassed by the police.

…

Deepika Udagama, the Director of the Centre for the Study of Human Rights at Colombo University, took the view that the police and the armed forces generally saw every Tamil man stopped by them at a checkpoint as a potential LTTE member.  She made the point that social class was also a factor here and that women, too, had recently been suspected of LTTE activism.

The Home for Human Rights regarded it as a problem per se if a Tamil stopped at a checkpoint did not speak any language other than Tamil.  A human rights campaigner expressed the view that even middle‑class Tamils from Colombo might be harassed at checkpoints, but a colleague of his did not think that to be the case.  Both agreed, however, that Tamils would be detained if there was anything unusual or suspicious about their identity cards.  MIRJE [that is, Movement for Inter-racial Justice and Equality] lawyers considered that the police and armed forces in Colombo regarded all Tamil men as potential LTTE members.  This applied especially if a young man was out of work or a student, or if he had just come from the north of the country.

The Institute of Human Rights pointed out that some Tamils were arrested solely on grounds of their race and Tamils could be arrested even if their papers were in order.  Having said that, it believed conditions in this respect to have improved in Colombo.

Neelan Tiruchelvam reported that all Tamils, even middle‑class ones, faced harassment at checkpoints, but he was particularly concerned for the safety of young men.

…

A Tamil wishing to remain anonymous took the view that many people were arrested and detained by the police for the sole purpose of blackmailing their family into paying bribes to have them released.  According to a number of interviewees, common knowledge that many of the Tamils living in Colombo received money from relations abroad made them soft targets for that kind of blackmail by the police.

…

Most interviewees reported that private homes or boarding houses were frequently searched in the course of a round‑up, but could also be searched if the police had received a tip‑off (often anonymously) about something suspicious at a house.  Both Tamil and Sinhalese homes could be searched, but Tamil homes most commonly were.  Several interviewees stated that the police usually carried out such searches at night or early in the morning.  Some boarding houses were searched more frequently than others if the police suspected them of being used by the LTTE.”

30                  I point out immediately that, except for the last paragraph in the passage which I have just quoted, all of the paragraphs quoted were dealing with the subject of checkpoints.  The last paragraph, on the other hand, was dealing with the subject of searches.  No reliance was placed on Mr Arudselvan’s behalf in oral submissions before me upon any of the material appearing in the report dealing with the subject of round-ups, nonetheless though Mr Arudselvan’s relevant assertions before the Tribunal had been of being rounded-up (see par 12 above).  As a matter of interest, on the latter subject, the report did contain the following passage (emphasis added):

“In a round‑up, everyone would be asked to show an identity card and, if this showed them to be from Jaffna, they would also, according to a number of organizations, have to show their police registration and explain their reasons for being in Colombo.”

31                  Thirdly, as to the written submissions made to the Tribunal on Mr Arudeslvan’s behalf dated 5 October 1998, they had been divided into a number of parts, one of which had been headed “Ethnic intolerance in Sri Lanka” and another of which had been headed “Mr Ajit Arudselvan’s situation”.  In oral submissions before me, reference was made both to evidentiary material contained in both of those parts and to submissions which had been made on the evidentiary material contained in the first of those parts.

32                  So far as the written submissions to the Tribunal under the latter heading had been concerned, reference was made in oral submissions before me to an editorial in a Sri Lankan newspaper of March 1996 which had been quoted in those written submissions.  My attention was particularly drawn to the following passage:

“Lamentably it has come to a stage where platoons of swaggering, asinine, jackbooted oafs are harassing innocent individuals in the name of national security.  It would be a sad day for the nation if we stand by passively and allow such unjustifiable horror and humiliation to be perpetuated on innocent civilians.  Or, are we becoming a nation tolerant of racial insensitivity among a fear ridden populace?

It is true that we have among us an oddment of odious bigots whose racial denunciations are delivered in tones of self righteous contempt and smouldering hatred.”

33                  What type of harassment was the subject of the foregoing comments was not made clear in the editorial, which was being relied upon in the written submissions to the Tribunal as a description of the then-current security operations in (apparently only) Colombo.

34                   So far as the submissions to the Tribunal on the subject of ethnic intolerance in Sri Lanka had been concerned, reference had been made in them to evidentiary material which suggested that antagonism to (relevantly) Tamils had long been deeply embedded in Singhalese society and had been exacerbated in relatively recent times by the actions both of Singhalese political leaders and of the LTTE.  Reference had also been made to a statement in the Sri Lankan media in about June 1997 that “some policemen took the law into their own hands, treating every Tamil visitor to Colombo as a suspected terrorist” (emphasis added) and to a statement by the Deputy Defence Minister in about October 1996 that “50% of Tamils who have settled in Colombo over the past three years are LTTE spies” (again, emphasis added).

35                  As to the effect of the evidentiary material to which I have referred in the preceding paragraph, the following submission was made:

“We submit that the result, as far as Tamil civilians are concerned, is that they are all tarred with the same brush.  Putting this another way, the ‘security forces’ cannot distinguish LTTE cadres from ordinary Tamils, and so that [sic] in a great many cases all Tamils are treated as guilty of LTTE atrocities, and are vicariously punished for the crimes of the LTTE.”

36                  Given that, for the reasons which I have already set out (see par 14 above), I am restricting my consideration of the Tribunal’s treatment of Mr Arudselvan’s assertions of detention for questioning on a number of occasions between 1985 and October 1995 to his rounding-up said to have taken place in May 1993, the question which now arises for my determination is whether the Tribunal committed an error reviewable by this Court by failing to give reasons in its statement of findings and reasons both for its preference for the evidentiary material upon which it expressly relied in rejecting Mr Arudselvan’s assertion of detention for questioning in a round-up in May 1993, as opposed to the contrary evidentiary material, and for its rejecting the submission which had been made in the written submissions of 5 October 1998 as to the effect of (some of) the contrary evidentiary material contained in those written submissions.  (I should perhaps add here that the analysis which follows would be just as applicable to Mr Arudselvan’s other assertions of detentions for questioning, if, contrary to the view which I take, they were considered to be relevant to his claim for refugee status.)

37                  In my view, the Tribunal did not commit an error reviewable by this Court of the sort to which I have referred in the preceding paragraph.

38                  It is convenient to begin to explain my reasons for that conclusion by referring to the decision of a Full Court of this Court in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 (Davies, Beazley and Sackville JJ).  At 414, Sackville J, with whose reasons for judgment Beazley J agreed (see at 406), said of subs 166E(1) of the Act, the predecessor to subs 430(1) of the Act (the two provisions being in identical terms),

“… s 166E(1) requires the Tribunal not merely to set out the decision, but the reasons for the decision and the findings on any material questions of fact.  It is also obliged to refer to the evidence on which the findings were made.

Care should be taken not to elevate the requirements of s 166E, or equivalent legislation such as s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), into an occasion for a minute examination of reasons ‘with an eye keenly attuned to the perception of error’: Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708.  As Lockhart J said in that case, if the Court is to keep within the proper bounds of judicial review of administrative decisions, it should approach the task of construing the reasons ‘sensibly and in a balanced way’.  See also Broussard v Minister for Immigration and Ethnic Affairs [(1989) 21 FCR 472] at 479.

Legislation such as s 166E(1) of the Migration Act does not require the Tribunal to prepare lengthy reasons dealing with every aspect of the evidence.  What is required is that the Tribunal set out in ‘short and measured, but specific terms its findings in connection with’ matters relevant to its decision: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 483, approved in Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437 at 444.  As Wilcox J observed in Our Town v Australian Broadcasting Tribunal at 481, it is not necessary that the reasons deal with all matters raised in the proceedings; it is enough that the findings and reasons deal with the substantial issues on which the case turns.  The standard required is not one of perfection and regard must be had to the composition of the Tribunal, which does not necessarily include trained lawyers: Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157 per Sheppard J.

Within these limitations, it nonetheless remains true that a failure by a Tribunal to comply with the statutory duty to give reasons may justify judicial review of the Tribunal's decision.  In Dornan v Riordan (1990) 24 FCR 564 at 573, a Full Court (Sweeney, Davies and Burchett JJ) held that a substantial failure to state reasons for a decision, where a statement of reasons is a requirement of the exercise of the decision-making power under the statute, constitutes an error of law.  The Court cited, among other authorities, Pettitt v Dunkley [1971] 1 NSWLR 376, where it was held that the failure of the trial judge to give reasons made it impossible for an appellate court to determine whether or not the verdict was based on an error of law.  See also Telescourt v Commonwealth (1991) 29 FCR 227 at 234; Anderson v Australian Postal Corporation (1993) 32 ALD 138 at 145.

In Rich Rivers v ABT, the Court expressed the rationale underlying the statutory duty to give reasons, by adopting the language used by Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507, in reference to the unsuccessful party:

‘Even though I may not agree with it, I now understand why the decision went against me.  I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.’

The observations of Sheppard J in Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88, although obiter, are also helpful:

‘The provision of reasons is an important aspect of the Tribunal’s overall task.  Reasons are required to inform the public and parties with an immediate interest in the outcome of the proceedings of the manner in which the Tribunal’s conclusions were arrived at.  A purpose of requiring reasons is to enable the question whether legal error has been made by the Tribunal to be more readily perceived than otherwise might be the case.  But that is not the only important purpose which the furnishing of reasons has.  A prime purpose is the disclosure of the Tribunal's reasoning process to the public and the parties.  The provision of reasons engenders confidence in the community that the Tribunal has gone about its tasks appropriately and fairly.  The statement of bare conclusions without the statement of reasons will always expose the Tribunal to the suggestion that it has not given the matter close enough attention or that it has allowed extraneous matters to cloud its consideration.  There is yet a further purpose to be served in the giving of reasons.  An obligation to give reasons imposes upon the decision-maker an intellectual discipline.  The Tribunal is required to state publicly what its reasoning process is.  This is a sound administrative safeguard tending to ensure that a Tribunal such as this properly discharges the important statutory function which it has.’”

39                  Approaching the Tribunal’s statement of findings and reasons as is mandated by the approach just set out, I am unable to perceive in the passage of the Tribunal’s statement of findings and reasons which I have set out in par 9 above the reviewable error alleged by Mr Arudselvan.

40                  First, as to the contrary evidentiary material, the Tribunal was (relevantly) dealing in the quoted passage with a specific assertion of fact by Mr Arudselvan, namely, that he had been rounded-up for detention and questioning in May 1993.  Much of the evidentiary material to which the Tribunal referred as being that material upon which its finding rejecting that assertion was based had been sharply focused on the circumstances of round-ups.  On the other hand, the contrary evidentiary material was not specifically directed to round-ups at all and fell, in my view, into one or other of three categories; it was: (at best, from Mr Arudselvan’s point of view) of very little persuasive force in support of his specific assertion; alternatively, simply irrelevant; or, finally, possibly even of some persuasive force against his specific assertion.  In those circumstances, I am unable to regard the Tribunal’s failure to refer to and explain its rejection of that material as amounting to a failure substantially to set out the reasons for its decision.

41                  Of the cases relied upon by Mr Arudselvan in support of this aspect of his challenge to the Tribunal’s decision (see par 23 above), the only one which it appears to me to be necessary to mention on the question of the Tribunal’s failure to refer to and explain its rejection of the contradictory evidentiary material is Brackenreg.  In that case, a decision of the Administrative Appeals Tribunal was set aside, in substance because of its failure in its statement of findings and reasons to refer to the existence before it, and explain its rejection, of evidentiary material which had tended in favour of a conclusion contrary to the one which it had reached on a material question of fact.

42                  Without in any way suggesting that that case was wrongly decided on its particular facts (although compare Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 (Lee, Branson and Marshall JJ; unreported; 21 June 1999)), I simply say that its circumstances were very much different from those of the present matter.  There, unlike here, the contradictory evidentiary material to which reference had not been made by the tribunal concerned was seen by the reviewing Court to have been of high relevance on the material question of fact determined by that tribunal and there, unlike here, that evidentiary material had been the testimony of a party to the proceeding before the tribunal concerned.  (As to the significance of the fact that the contradictory evidentiary material here was general information about Sri Lanka, rather than evidence specifically about Mr Arudselvan, see also Doss v Minister for Immigration & Multicultural Affairs [1999] FCA 979 (Beaumont J; unreported; 9 July 1999) at pars 36-46.)

43                  Turning now to Mr Arudselvan’s submission before me that the Tribunal failed to give its reasons for rejecting his submission before it which I have set out in par 35 above, I reject his submission before me because, as I read the Tribunal’s statement of findings and reasons, it did give its reasons for rejecting his submission before it.  In part of the passage which I have already set out in full in par 9 above, the Tribunal said (emphasis added),

“He [that is, Mr Arudselvan] does not suggest that there was any reason for suspicion to fall on him on these occasions other than the mere fact that he is a Tamil and, having regard to the information available to me, I consider it implausible that someone like the Applicant, whose National Identity Card shows Colombo as his place of birth and residence, should have been repeatedly arrested on suspicion in this manner.”

44                  I regard the passage which I have just quoted as constituting a sufficient giving by the Tribunal of its reasons for rejecting the submission made to it that,

“… they [that is, Tamil civilians] are all tarred with the same brush.  Putting this another way, the ‘security forces’ cannot distinguish LTTE cadres from ordinary Tamils, … so that in a great many cases all Tamils are treated as guilty of LTTE atrocities, and are vicariously punished for the crimes of the LTTE.”

(In so saying, I am assuming in Mr Arudselvan’s favour that the submission to the Tribunal which I have just quoted is properly to be read as having been directed to the issue of the rounding-up of Tamils in Colombo for detention and questioning, although the reference in it to punishment may be thought to cast doubt on the correctness of that assumption.)

45                  In effect, the Tribunal was saying that it rejected any suggestion of indiscriminate rounding-up of Tamils in Colombo at the relevant times, because there was evidentiary material to the contrary, which it accepted, so far as round-ups were concerned.

46                  I am reinforced in my conclusion that, in the passage from its statement of findings and reasons which I have quoted in par 43 above, the Tribunal was directing itself to Mr Arudselvan’s submission before it which I have quoted in par 44 above by the fact that, in that part of its statement of findings and reasons headed “The evidence of the Applicant and his parents”, the Tribunal had expressly noted,

“In a written submission dated 5 October 1998, produced to the Tribunal at the hearing, the Applicant's representative submitted that the prospects of Tamils on return to Sri Lanka should be assessed in the context of the ethnic conflict which had been building in Sri Lanka since before independence in 1948 and the ethnic riots which had occurred in 1958, 1977, 1979 and 1983.  He referred to LTTE terrorist outrages in the South of Sri Lanka and submitted that the security situation had exacerbated the racial antagonism in Sinhalese society.  He submitted that the security forces were unable to distinguish LTTE cadres from ordinary Tamils so that in a great many cases all Tamils were treated as guilty of LTTE atrocities.”

47                  I have already mentioned Brackenreg, which was one of the four cases relied upon by Mr Arudselvan in support of this aspect of his challenge to the Tribunal’s decision (see par 23 above).  For the sake of completeness, I should now mention that, as to the other three cases relied upon by him, Mr Arudselvan relied upon Dennis Willcox in so far as it had been concerned with the Administrative Appeals Tribunal’s failure to refer to a particular submission which had been made to it; he relied upon Logenthiran in so far as it had been concerned with the Tribunal’s failure to make findings as to certain important assertions of fact by a claimant for refugee status; and he relied upon Sellamuthu in so far as it had been concerned with the Tribunal’s failure to consider important elements of the claims of the claimant for refugee status.  In light of the view which I have expressed above about the present matter, I do not consider that any of those three cases is of any present relevance.

48                  I come now to the second respect in which Mr Arudselvan challenged the Tribunal’s decision.

49                  It had been part of Mr Arudselvan’s case before the Tribunal that, in July 1996, when he had left Sri Lanka through Colombo airport, he been wanted by the security forces.  Nevertheless, he had left using a passport bearing his own name.  That had only been possible, according to him, because of bribery on his behalf of the relevant airport officials, who would otherwise have had him arrested at the airport because of his wanted status.

50                  However, relying on the Danish document to which I have already referred in another connection (see par 21 above), the Tribunal concluded that, at the relevant time, a person who was wanted by the security forces would not have been able, through bribery of the relevant airport officials, to depart Sri Lanka through Colombo airport using his own name.  It therefore followed that, contrary to his assertion, Mr Arudselvan had not been wanted at the relevant time.

51                  In his application to this Court for review of the Tribunal’s decision (which application was filed in Court in its final form on the day of the hearing before me), Mr Arudselvan included as a ground of review the following ground:

“The Tribunal based its decision on the existence of a particular fact, and that fact did not exist.

Particulars

a)      The Tribunal found that the applicant would be unable to depart Katunayake Airport in Colombo on a passport issued under his own name if he was wanted by the Sri Lankan security forces…. 

b)      The Tribunal found that the Danish Immigration Service inits Report on the Fact Finding Mission to Sri Lanka drew a distinction between the ability of wanted people to leave Sri Lanka through Colombo airport on documents made out in their own names, and that of persons who leave or attempt to leave on false papers.”

52                  The inclusion in the application for review of a ground of review in the terms which I have just set out was plainly misconceived, since the Act contains no ground of review that a decision maker based a decision on the existence of a particular fact, but that fact did not exist.  Reference is, of course, made in the Act to a decision maker’s having based a decision on the existence of a particular fact which did not exist (see par 476(4)(b)), but that is done only by way of erecting an additional hurdle to the making out of the ground contained in the Act that there was no evidence or other material to justify the making of the decision (see par 476(1)(g)).  The cumulative nature of par 476(4)(b) was made plain by a Full Court of this Court in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212, especially at 221 (Black CJ and Spender and Gummow JJ), when discussing the materially identical provision in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the JRA”), par 5(3)(b). 

53                  So far as Mr Arudselvan’s submissions, as opposed to his application for review, were concerned, they appear to me to have betrayed further confusion of thought about the nature of the complaint he was seeking to make about the Tribunal’s conclusion regarding his ability to depart Sri Lanka through Colombo airport in his own name if wanted.

54                  First, his written submissions said, “Here, it is submitted that there is an absence of evidence ‘from which the decision maker could reasonably be satisfied that a particular matter was established,… (ABT v. Bond (1990) 170 CLR 321,358)’ to support a finding essential to the decision” (I have quoted the submission verbatim.) However, the language from Bond being quoted in the written submissions had been directed, not to the JRA equivalent of par 476(4)(b) of the Act, upon which Mr Arudselvan was relying before me, but to the JRA equivalent to par 476(4)(a) of the Act, upon which he was not.  Further, the quoted language had simply been paraphrasing the language of the JRA equivalent to par 476(4)(a) of the Act, rather than interpreting that provision in any way.

55                  Secondly, in his oral submissions, Mr Arudselvan took me to (only) one paragraph in the reasons for judgment in Curragh, at 223.  However, far from assisting him, that paragraph had not only reinforced the cumulative nature of the JRA equivalent to par 476(4)(b) (see par 52 above), but had also emphasised the “heavy burden” (later described (at 224) as “an insurmountable obstacle to an applicant in some cases”) which the JRA equivalent to par 476(4)(b) may cast upon an applicant for review who relies, “especially where the facts are obscure”, upon the combined effect of that paragraph and of the JRA equivalent to par 476(1)(g).  That burden is “to negative the fact” for the existence of which the applicant concurrently bears the burden, under the JRA equivalent to par 476(1)(g), of establishing that there was no evidence or other material before the decision maker.

56                  (I draw attention, incidentally, to the way in which I have just framed an applicant’s burden under the JRA equivalent to par 476(1)(g).  Although that provision speaks of there having been no evidence or other material to justify “the decision”, in Curragh the Full Court treated the provision, at least in the context of the JRA equivalent to par 476(4)(b), as referring, not to the decision itself, but to the particular fact which it is alleged by the applicant did not exist.  For instance, it was said (at 221; emphasis added), “If a decision is … based … on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed”.  Later (at 224; emphasis added), it was said,

“The additional requirement [imposed by the JRA equivalent to par 476(4)(b)] will … preclude the making of an order for review in a case where, although there was no evidence or other material of a particular fact upon which the decision was based, it is clear enough that the particular fact did exist.”

I will proceed hereafter on the same basis as did the Full Court in Curragh.)

57                  Having emphasised the heavy burden which may be imposed on an applicant by the JRA equivalent to par 476(4)(b), the Full Court later pointed out (at 223-24), that the terms of the JRA equivalent to par 476(4)(b) necessarily permit an applicant to rely upon evidence admissible in this Court, which evidence was not before the decision maker, in order to negative the particular fact.  That, however, Mr Arudselvan did not do.  Instead, his complaint about the Tribunal’s conclusion regarding his ability to depart Sri Lanka through Colombo airport in his own name if wanted was based entirely upon the terms of the Danish document, which had, of course, been before the decision maker. 

58                  Yet a further problem with the aspect which I am now discussing of Mr Arudselvan’s challenge to the Tribunal’s decision is the second particular in his application for review of the “particular fact” said not to have existed, namely, that the Danish document had drawn a distinction between the ability to leave Sri Lanka through Colombo airport of, on the one hand, a person who was wanted by the security forces and was using documents made out in his/her own name and, on the other hand, a person who was using false documents.

59                  I am unable to regard the Tribunal’s construction of a document as itself being, within the contemplation of par 476(4)(b), a “particular fact” upon which the Tribunal’s decision was based.  At the same time, however, I should add that, in so far as a document is construed by the Tribunal as evidentiary of a particular fact, it may be that, because the Tribunal has misconstrued the document, there was in truth no evidentiary material before it of the existence of that particular fact.

60                  The question which now arises in my mind, given all that I have said above about this aspect of Mr Arudselvan’s challenge to the Tribunal’s decision, is whether I should simply reject it without more or whether I should give further consideration to it, in spite of the absence of any real assistance on it from Mr Arudselvan.

61                  It appears to me to be best to take the latter course and so the following questions arise with respect to it: was the Tribunal’s finding that Mr Arudselvan would not have been able to leave Sri Lanka through Colombo airport on a passport issued under his own name if he had been wanted by the Sri Lankan security forces a finding of the existence of a “particular fact” for present purposes; if so, was the Tribunal’s decision “based on” the existence that particular fact; if so, was there no evidence or other material before the Tribunal of the existence of that particular fact; and, if so, did that particular fact not exist.

62                  As to whether the Tribunal’s finding that Mr Arudselvan would not have been able to leave Sri Lanka through Colombo airport on a passport issued under his own name if he had been wanted by the Sri Lankan security forces was a finding of the existence of a “particular fact” for present purposes, it may be argued that, in truth, the finding being complained of by Mr Arudselvan was a finding as to the non-existence of a particular fact, namely, that the relevant airport officials could be bribed, and that par 476(4)(b) is only concerned with findings as to the existence of facts, rather than with findings as to their non-existence: compare Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854 (French, RD Nicholson and Finkelstein JJ; unreported; 25 June 1999) at par 59.  However, I am prepared to assume in Mr Arudselvan’s favour that such an argument would fail and that the Tribunal’s finding was of the existence of a particular fact for present purposes.

63                  As to whether the Tribunal’s decision was “based on” the existence of that particular fact, in Curragh, the Full Court said (at 220), “If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact”.

64                  Recently, in Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480 (Lee, Whitlam and Weinberg JJ; unreported; 23 April 1999), a Full Court of this Court had occasion to apply that test in the context of a refugee claimant’s application for review of a decision of the Tribunal.  Chopra had claimed before the Tribunal to have a well-founded fear of persecution for a Convention reason if he were to return to India, his country of nationality.  He had asserted, as part of his case before the Tribunal, that he had been a member of the Rashtriya Swamayamsevak Sangh (“the RSS”), a nationalist Hindu organisation, but the Tribunal found, contrary to his assertion, that he had not been such a member.  Before the Full Court, Chopra sought to rely upon pars 476(1)(g) and 476(4)(b) of the Act in respect of that finding.  In rejecting Chopra’s argument based upon those provisions, the Full Court said (at pars 64-65; emphasis in original),

“64      We are not persuaded that the decision to refuse the appellant a protection visa was, in any relevant sense, based on the existence of a particular fact, namely that identified by Mr Elliott as ‘his non-membership of the RSS’.  That seems to us to have been but one of a number of considerations, any one of which would have been sufficient to lead the Tribunal to refuse his application.  It was not, in our view, in any relevant sense, ‘critical to the making of the decision’ – Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-1 per Black CJ with whom Spender and Gummow JJ agreed.

65        The reality is that the Tribunal rejected a number of the appellant’s assertions as utterly implausible.  It was entitled to arrive at that conclusion.  Some of his claims were made without a shred of evidence to support them, and one such claim … was made in the face of such objective evidence as did exist.  The Tribunal’s rejection of the appellant’s claim to past association with the RSS was not, in our opinion, a matter which assumed anything like the importance before the Tribunal which Mr Elliott has submitted that it did.  The Tribunal’s decision was not based on that finding of fact, but rather upon its refusal to accept that the specific acts of violence to which he alluded were brought about by Muslim extremists attacking him because of his religious beliefs, and practices.  It follows that whether or not the fact that he did not have a past association with the RSS, as he claimed, did not exist… cannot be of any relevant consequence.  That issue simply does not arise.  The ‘no evidence’ point cannot, therefore, succeed.”

65                  As with the first of the questions which I said in par 61 above I would discuss on this aspect of Mr Arudselvan’s case, it appears to me to be possible to argue, for reasons like those which were given in Chopra, that this question should be answered against Mr Arudselvan’s interests.  However, again, I am prepared to assume in Mr Arudselvan’s favour that such an argument would fail and that the Tribunal’s decision was “based on” the existence of the particular fact discussed above.

66                  As to whether there was no evidence or other material before the Tribunal of the existence of the particular fact discussed above, it is necessary now to refer to the terms of the Danish document.  Among the matters discussed in that document was how departure control was organised at Colombo airport.  In that connection, it was pointed out in the document that departing passengers at the airport were required to attend one of a number of booths staffed by both an immigration and a National Intelligence Bureau (“NIB”) officer, at which “the NIB officer checked the passport holder’s name against a constantly updated manual list of wanted … persons”.  Later in the document, it was said,

“As regards illegal departure of wanted persons on documents made out in their own name, it was agreed [by those representatives of the Criminal Investigation Department (‘CID’) and the NIB interviewed by the Danish delegation] that such a case would have to involve complicity on the part of one of the NIB departure control officers.  It was added that, at any rate, no cases of NIB staff taking bribes had come to light over the past six years or so (the time for which the delegation’s CID and NIB interviewees had been working at the airport).”

67                  Given the passage which I have just quoted, I am not satisfied that there was no evidentiary material before the Tribunal of the fact that Mr Arudselvan would not have been able to leave Sri Lanka through Colombo airport on a passport issued under his own name if he had been wanted by the Sri Lankan security forces.  To my mind, it was open to the Tribunal, given that passage, to act upon the basis that no cases of the taking of bribes by NIB departure control officers had come to light over the six years or so before the delegation’s visit to Sri Lanka in February and March 1997.  It was put to me by Mr Arudselvan that the assertion that no such cases had come to light had been unreliable, given its source, but I am unable, without exceeding my proper function, to accept such a submission.  Further, the fact that no such cases had come to light during that time rendered it more probable than it would otherwise have been that no such cases had occurred.  The fact that no such cases had come to light was thus some evidentiary material of the particular fact concerned.

68                  Since I have answered contrary to Mr Arudselvan’s interests the third of the four questions which I said in par 61 above I would discuss on this aspect of his case, it is, strictly speaking, unnecessary for me to discuss the fourth of those questions, namely, whether the particular fact discussed above did not exist.  However, I do wish to draw attention again for two particular reasons to the three matters to which I have already referred in par 57 above, namely, the ability of an applicant relying upon pars 476(1)(g) and 476(4)(b) to tender evidence admissible in this Court, which evidence was not before the decision maker, in order to negative the existence of the particular fact concerned, the failure of Mr Arudselvan to tender any such evidence before me and his reliance instead solely upon the terms of the Danish document.

69                  First, I point out that the material in the Danish document which was relied upon by Mr Arudselvan was not relied upon by him as suggesting that the Tribunal had misconstrued what the Danish delegation had reported it had been told by the NIB and CID, but only as suggesting that NIB departure control officers had taken bribes in order to permit wanted persons to depart Sri Lanka through Colombo airport.  That material had come from “representatives of a western embassy wishing to remain anonymous”.

70                  Secondly, in Yilan, to which I have already referred in par 62 above, the Full Court said (at pars 57 and 58),

“57      Paragraphs 5(3)(b) of the ADJR Act and 476(4)(b) of the Migration Act contemplate that an applicant will be able to establish that the particular fact did not exist.  In so doing the applicant is not limited to the material before the decision-maker.  The requirement of establishing that a particular fact did not exist can be satisfied by admissible evidence in court not limited to the material before the decision-maker – Curragh Qld Mining Ltd (supra) at 224.  In Lay Kon Tji v Minister for Immigration and Ethnic Affairs (1998) 158 ALR 681 Finkelstein J received in evidence a press communique issued by the Embassy of Portugal which established the non-existence of certain critical facts found by the Tribunal leading to its conclusion that the Portuguese nationality of East Timorese people was an ‘effective’ nationality for the purposes of Article 1A(2) of the Refugee Convention as construed by the Full Court in Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 14 FCR 508.  The tender of the communique was objected to by the Minister in that case but Finkelstein J observed at 698:

‘…its reception into evidence is permitted by reason of the fact that s 476(1)(g) of the Migration Act requires an applicant who seeks to establish the ‘no evidence’ ground of review to lead evidence that the ‘fact’ in question does not exist.  In the ordinary case the non-existence of the asserted ‘fact’ will usually be proved by the tender of evidence at the hearing of the application for review ….’

58        The requirement posited by the Full Court in Curragh Qld Mining Ltd (supra) that evidence adduced, upon judicial review of an administrative decision, to demonstrate the non-existence of a particular fact be ‘admissible evidence’ may at first seem unduly stringent.  The decision-maker’s findings, after all, are not required to be based upon such evidence.  The RRT in particular is not bound by the rules of evidence – Migration Act s 353(2)(a).  The requirement that material to support the no evidence ground of review be admissible is however consistent with the policy of the ADJR Act and Part 8 of the Migration Act which generally limits judicial review of administrative and tribunal decisions to grounds of law and procedure.  Review of basic error in fact finding lies at the border between traditional judicial and merits review.  It is appropriate therefore that the non-existence of the particular fact found by the Tribunal to be proved be established in the judicial review process according to the rules of evidence.  The argumentative material contained in the report prepared by Paul White, whose affidavit it was sought to tender, would not be admissible to prove the fact of the Ankara demonstrations.  The content of the Turkish newspaper reports and statements about what is depicted in accompanying photographs which were exhibited to that report would also appear to be inadmissible as hearsay.  Given the difficulty of establishing the admissibility of this additional evidence it is perhaps not surprising that the submissions about it were limited to its use as demonstrating the inadequacy of the Tribunal’s inquiry, rather than the non-existence of a particular fact.  In the event, whatever criticism may be made of the Tribunal’s selection of newspaper references, the no-evidence ground has not been made out.”

71                  The approach of the Full Court in Yilan appears to me to lead to the conclusion that, even where an applicant seeking to make out a case under pars 476(1)(g) and 476(4)(b) of the Act relies, in order to negative the existence of the particular fact concerned, upon evidentiary material which was before the decision maker, that material must be admissible according to the rules of judicial evidence before it can be relied upon in this Court for that purpose.  Yet it must be highly doubtful, to say the least, whether what was reported in the Danish document as having been said to the delegation by representatives of a western embassy wishing to remain anonymous was admissible, according to the rules of judicial evidence, for the purpose of negativing the existence of the particular fact concerned here. 

72                  I come now to the third and final respect in which Mr Arudselvan challenged the Tribunal’s decision.

73                  As is common in proceedings in the Tribunal, Mr Arudselvan’s case of a well-founded fear of being persecuted for a Convention reason if he should return to the country of his nationality had concentrated on his assertions of having suffered persecution for a Convention reason in that country on specific occasions in the past.  In Mr Arudselvan’s case, those assertions of past persecution for a Convention reason had primarily been of being detained for questioning in Colombo by the security forces and of attendant mistreatment during such detentions.  As is already apparent from my discussion of the first respect in which Mr Arudselvan challenged the Tribunal’s decision, the Tribunal rejected his assertions of such detentions between 1985 and October 1995.  He had, however, also asserted that such detentions and attendant mistreatment had occurred twice in the first half of 1996.  Those assertions were also rejected by the Tribunal, a rejection which was not made the subject of any complaint before me of reviewable error on the Tribunal’s part.  Further, he had asserted mistreatment at checkpoints in Colombo between 1985 and the beginning of 1993.  Those assertions were also rejected by the Tribunal, relying upon an adverse view which it had formed of Mr Arudselvan’s credibility based on his demeanour while giving evidence before it, a rejection which was also not made the subject of any complaint before me of reviewable error on the Tribunal’s part.

74                  In spite of the fact that the Tribunal had rejected Mr Arudselvan’s assertions of past detentions in Colombo and of past mistreatment at checkpoints in Colombo, it nevertheless asked itself in the course of its decision making process whether, if Mr Arudselvan were now to return to Colombo, he might suffer harm of the type which he had (falsely) asserted he had suffered there in the past.  Its conclusion in that respect, set out in that part of its statement of findings and reasons headed “Findings and Reasons for Decision”, was that “as a Tamil whose National Identity Card indicates that he was born in Colombo and that he resides there, the Applicant will have few problems if he returns to Colombo (DFAT cable CL463, dated 24 January 1997, CX21595)”.

75                  It may be recalled that, in par 18 above, I have already quoted from the DFAT document referred to in the passage from the Tribunal’s statement of findings and reasons which I have just quoted.  However, I set out again the portion of the document obviously being relied upon by the Tribunal in that passage:

“The typical profile of persons who would fall under scrutiny by the security forces continues to be young Tamils from the north or east, but particularly from the Jaffna peninsula or LTTE-controlled mainland area known as the Vanni region.  … By contrast, Tamils with identity cards showing Colombo as their place of birth and residence have few problems”.

76                  The DFAT document from which I have just quoted was not the most recent DFAT document before the Tribunal in Mr Arudselvan’s case.  There were before the Tribunal more recent documents from the same source, including ones from February and April 1998.  The Tribunal did not refer explicitly to either of those two documents in that part of its statement of findings and reasons which was headed “Findings and Reasons for Decision”.  Its failure to do so led Mr Arudselvan to make an argument before me with respect to those two documents materially identical, as he told me in oral argument, to the argument which he had made with respect to the three documents which I discussed when dealing with the first aspect of Mr Arudselvan’s challenge to the Tribunal’s decision.  The argument was that the February and April 1998 documents tended to show that Tamils with identity cards showing Colombo as their place of birth and residence no longer merely had few problems so far as the security forces were concerned.  That being so, if the Tribunal were to accept the January 1997 document in preference to the February and April 1998 documents, it was incumbent upon it to give its reasons for doing so, something which it had not done. 

77                  Although the Tribunal did not refer explicitly in that part of its statement of findings and reasons which was headed “Findings and Reasons for Decision” to either the February or the April 1998 document, it should not be thought that those documents had not been present to its mind when making its decision, since it had made numerous references to both of them in those parts of its statement of findings and reasons which had preceded the part headed “Findings and Reasons for Decision”.

78                  For instance, as well as making one additional incidental reference to it, the Tribunal had referred as follows to the February 1998 document, when dealing in its statement of findings and reasons with what it referred to as background evidence regarding Colombo:

“With regard to the current situation in Colombo, the Australian Department of Foreign Affairs and Trade reported in February 1998 that:

‘Since October 1997, the LTTE has launched an attack in the south every month, including two in Colombo, one in Kandy and one in Galle.  The frequency of LTTE attacks has led to a considerable tightening of security in Colombo.  In the last month an additional reason for tighter security was the 4 February celebrations for the 50th anniversary of independence.  The tighter security situation is felt especially by members of the Tamil community.  As security tightens, more people are being arrested, and the impact of the security measures are [sic] being felt by more Tamil people.’ (DFAT cable CL821, dated 13 February 1998, CX28768)”

79                  Further, as well as making one additional incidental reference to it, the Tribunal had referred to the April 1998 document twice.  First, when dealing with Mr Arudselvan’s written submissions to the Tribunal dated 5 October 1998, the Tribunal had said,

“The Applicant's representative referred to the fact that the most recent advice from the Australian Department of Foreign Affairs and Trade suggested that approximately half the people detained in Colombo were mistreated, and that in a small number of cases the mistreatment was serious, and that a large number of Tamils were being held under the Emergency Regulations or the Prevention of Terrorism Act without being tried (DFAT cable CL855, dated 22 April 1998, CX29633).”

Secondly, when dealing with background evidence regarding Colombo, the Tribunal had said,

“In its most recent assessment of the human rights situation in Sri Lanka the Australian Department of Foreign Affairs and Trade stated that there had been no reports of disappearances in police custody in Colombo over the past twelve months.  However it was estimated that approximately half of the people in detention in Colombo were mistreated and that in a small number of cases the mistreatment was serious (DFAT cable CL855, dated 22 April 1998, CX29633).”

80                  I have examined carefully those passages from the February and April 1998 documents to which Mr Arudselvan took me in oral argument.

81                  As to the passage from the February 1998 document to which Mr Arudselvan took me in oral argument, only part of it is reproduced in par 78 above.  Although the passage speaks generally of an “intensification of security” since October 1997 as a result of increased LTTE attacks, I find nothing in it which contradicts the Department’s January 1997 assertion that “Tamils with identity cards showing Colombo as their place of birth and residence have few problems” so far as the security forces are concerned.  More to the point, I consider that it was open to the Tribunal to take that view of it, as it obviously did.

82                  As to the passage from the April 1998 document to which Mr Arudselvan took me in oral argument, that passage was not the passage upon which he had relied in his written submissions to the Tribunal of 5 October 1998 (see par 79 above).  Just as with the passage in the February 1998 document to which he took me in oral argument, I consider that it was open to the Tribunal to take the view, as it obviously did, that there was nothing in the passage in the April 1998 document to which he took me in oral argument which contradicted the Department’s January 1997 assertion that “Tamils with identity cards showing Colombo as their place of birth and residence have few problems” so far as the security forces are concerned.  In any event, the April document was, in terms, describing certain “markedly increased” operations of the security forces during March 1998 only, which operations, it was said in the document, had ceased by the end of that month.  Reference was also made in the document to steps taken by the Sri Lankan Attorney General intended to prevent such a marked increase in operations as had occurred during that month from recurring.

83                  In those circumstances, I consider that there was no obligation on the Tribunal to refer explicitly to those two documents in that part of its statement of findings and reasons headed “Findings and Reasons for Decision” and to give reasons for preferring what had been said in the January 1997 document to what had been said in the February and April 1998 documents.

84                  For the reasons given above, Mr Arudselvan’s application for review will be dismissed with costs.

Associate:

Dated:              9 August 1999