FEDERAL COURT OF AUSTRALIA

Sundararaj v Minister for Immigration & Multicultural Affairs [1999] FCA 692

ADMINISTRATIVE LAW – administrative appeals – failure to establish any ground for review within s 476(1) of the Migration Act 1958 – disquieting process of reasoning of Refugee Review Tribunal not a basis for review.

COSTS – appeals as to costs – discretion of court to depart from the usual order as to costs – the exercise of discretion by primary judge not shown to be erroneous.

Migration Act 1958  s476(1)

Minister for Immigration and Multicultural Affairs v Eshetu  [1999] HCA 21, discussed.

MUTHAIAH PILLAI SUNDARARAJ V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 158 OF 1999

SPENDER, EMMETT & HELY JJ

14 MAY 1999

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

2.                  The cross-appeal be dismissed with costs.

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

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

SPENDER J:

1                     This is an appeal from the judgment of a single judge of this Court, Burchett J, who on 3 February this year dismissed an application for review by the appellant from a decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 August 1998, by which that Tribunal affirmed a decision by a delegate of the Minister not to grant a protection visa.  The appellant before us appeared on his own behalf aided by an interpreter.

2                     The sole ground relied on by the appellant was that the court below failed to identify that the procedures required by the Migration Act 1958 (“the Act”) to be observed by the Tribunal in making its decision were not observed.  In particular, it was said that there was a failure by the court below to identify that the Tribunal had in three respects arrived at its conclusion on credibility adverse to the appellant by a wrongful process.

3                     In his Honour’s ex tempore reasons for judgment of 3 February 1999, Burchett J referred to the fact that there was no doubt that the present appellant had given false evidence about the situation of his wife and family and his ability to communicate with them after his departure from Sri Lanka.  His Honour’s conclusion was that the Tribunal had used as a basis for its decision an assessment of the credibility of the appellant and in particular, noted that the Tribunal had specifically disbelieved claims by the appellant that he had been arrested in December 1995, re-arrested in February 1996 because, as the Tribunal had put it, in September or October 1995 he unwittingly gave accommodation to five people who it subsequently transpired were Tamil Tiger members responsible for an attack on oil storage tanks on 20 October 1995.

4                     His Honour stated that, in addition to the question of inconsistencies identified by the Tribunal, the demeanour of the appellant must have played a part in its disbelief of his oral evidence, along with the inherent probability that the appellant would have appreciated that the group of person who stayed over a period at his house were (as was in fact the case) LTTE terrorists.  His Honour concluded that:

“…the central question of the credibility of the applicant’s story…dictated the [Tribunal’s] decision, and…no error of law actually affected it…”

5                     However, he was critical of the reasoning process leading to the Tribunal’s conclusion, and noted:

“…many pages of the decision obfuscate quite seriously the straightforward question of fact on which it depends.”

6                     His Honour observed that:

“A series of discrepancies as to times and other details [was] discussed at length [by the Tribunal in its reasons].”

7                     His Honour further noted:

“In other circumstances, the extraordinary idea that discrepancies of this kind are damaging to the credit of an almost illiterate person communicating through an interpreter…in respect of past events involving considerable trauma, events the substance of which would tend overwhelmingly to assume the important place in anyone’s memory, might well cast doubt on whether the evidence was considered in accordance with the applicable legal principles.

And added:

“The Tribunal should understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.”

8                     There is in my view a great deal of force in the adverse criticisms made by his Honour of the Tribunal’s reasoning process.  The Tribunal made quite sweeping conclusions, including one that:

“…the entirety of [the Appellant’s] evidence with regard to the events since September or October 1995 is a fabrication intended to provide support for his application for refugee status in this country.”

9                     It seems to me that that conclusion, which is a very strong and adverse one, seems to have been reached either by reference to what are in truth trifling inconsistencies in quite peripheral matters, or by reference to differing estimates or assessments of the periods involved in the series of detentions claimed to have been experienced by the appellant in December 1995, February 1996 and August 1996.

10                  I confess to a disquiet as to the satisfactory nature of the expressed reasons for the Tribunal’s conclusion.  However, it is my view that disquiet of that kind does not provide a basis on which this Court at first instance, or a Full Court on appeal, can validly overturn a decision of the Tribunal.

11                  Yesterday the High Court gave judgment in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21.  In the course of the reasons for the judgment of the Chief Justice and McHugh J, their Honours said (at paragraph 45):

“In the present case the question was whether the Tribunal was satisfied that Mr Eshetu’s fear of persecution was well-founded.  The Tribunal took as its commencing point his explanation of the reasons for his fear and then subjected those reasons to investigation and scrutiny.  Having done that the Tribunal expressed a lack of satisfaction.  It was criticised on the ground that it gave inadequate weight to certain considerations and undue weight to others.  Its ultimate decision was said to have been based upon a process of reasoning flawed in those respects.  It is not a case of Wednesbury unreasonableness, and it does not constitute a proper basis for the grant of constitutional relief under s 75(v) of the constitution.”

Later, at par 47, their Honours said:

“In s 476(2)(b) the legislature has expressed an intention to define the jurisdiction of the Federal Court in such a manner as to exclude review of a Tribunal’s decision upon the ground presently under consideration.   The ground thus excluded corresponds to the that referred to, for example, in s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

It is not an acceptable approach to statutory interpretation to negate the clear intention of the legislature by reliance on s 420 of the Migration Act.  In any event, s 420, when understood in its legal and statutory context, is an inadequate foundation for an attempt to overcome the provisions of s 476(2).”

Later, at paragraph 52, their Honours said:

“The proposition that Tribunal’s decision manifested “Wednesbury unreasonableness” has not been sustained.”

Importantly for the present purposes, their Honours continued:

“Even it had been sustained, Hill J was right to conclude that it did not provide a ground upon which the Federal Court could set aside the Tribunal’s decision.”

12                  In this case, the position is not one of Wednesbury unreasonableness. It seems to me that if Wednesbury unreasonableness is not a basis on which we could interfere, a process of reasoning which falls short of Wednesbury unreasonableness, but which gives rise to genuine feelings of disquiet as to the correctness of the reasoning process and of the logical basis for the conclusion to which the Tribunal came, is also not able to be relied upon as a ground for this Court to interfere.  It seems to me that, as a matter of principle, this Court is not able to do anything but dismiss the appellant’s appeal.

13                  The cross appeal may be disposed of shortly.  Burchett J, having referred to the process by which the Tribunal reached its conclusion, and having condemned the Tribunal’s process of examining the credibility of the witness’s story by “picking it to pieces to uncover little discrepancies”, made no order as to costs.  The Minister appeals from that decision.

14                  The power to order costs is subject to the well known discretion.  Ordinarily, a successful party is entitled to its costs.  However, there are many circumstances when a different result can be justified in the discretionary judgment of the judge considering the question of costs.  Burchett J in this case said that, in the circumstances of the case, “…the applicant was well entitled to seek the only form of review open to him”.

15                  The unsatisfactory nature of the reasons by the Tribunal invited an application for review, even though that review ultimately has proved to be unsuccessful.  It seems to me that those circumstances provide a sufficient basis for his Honour to exercise the discretion that he undoubtedly had to make no order as to costs of the review before him.

16                  Both the appeal and the cross-appeal should be dismissed with costs.

EMMETT J:

17                  I agree and will add some remarks of my own.  The Appellant is a citizen of Sri Lanka who arrived in Australia in September 1997.  He applied for a protection visa on 10 September 1997.  A delegate of the Minister decided to refuse that application on 25 September 1997.  The Appellant sought review of that decision by the Refugee Review Tribunal (“the Tribunal”) on 26 September 1997.  The Tribunal affirmed the decision on 30 October 1997 and the Appellant then sought review of that decision by the Federal Court.  On 13 May 1998 the Court, constituted by Lindgren J, ordered that the decision of the Tribunal be set aside, and that the matter be remitted to the Tribunal to be determined according to law.

18                  Lindgren J in his reasons for that decision, expressed the view that the Tribunal did not observe two procedures which the Act required to be observed.  That is a ground for review in this Court under section 476(1)(a) of the Migration Act 1958 (“the Act”).  The first of the procedures to which his Honour referred was the requirement for the Tribunal to set out the findings which it made on certain material questions of fact as required by section 430(1)(c) of the Act.  The material questions of fact were whether the Appellant was detained and tortured on the three occasions claimed and, if so, whether that signified that his fear of returning to Sri Lanka for reasons of imputed political opinion was well founded.

19                  Upon remitter to the Tribunal, the Tribunal differently constituted, came to the same conclusion, affirming the decision of the delegate not to grant a protection visa.  That decision was given on 10 August 1998.  The Tribunal, in its reasons for that decision, indicated that the Appellant was not accepted as a witness of truth.  A number of matters were advanced for that conclusion.  First was the fact that the Appellant had acknowledged, in the earlier hearing before the Tribunal, that he had lied on his oath before the Tribunal concerning the whereabouts of his family and about whether he had any friends in Nuwara Eliya.  In addition, the Tribunal based its conclusion as to the credibility of the witness on what it considered were confused and internally inconsistent statements and evidence made and given by the Appellant.

20                  Spender J has characterised some of those inconsistencies as being of a trifling nature.   They are, however, matters which it was open to the Tribunal to take into account in forming a judgment.  It is not for this Court, in considering a review under the Act, to form its own view or substitute its own findings for those of the Tribunal.  The Court’s power to intervene is very much constrained.

21                  The only grounds upon which the Court may intervene are those specified in section 476(1) of the Act.  The original application for review from the second decision of the Tribunal specified no ground within section 476(1).  The ground stated in the amended notice of appeal, filed with leave during the course of the hearing before us to which reference has been made by Spender J, also fails to identify a ground within section 476(1) except to the extent that it asserts that the Court below failed to identify that the procedures required by the Act to be observed in connection with the making of the Tribunal decision were not observed.  That, of course, is the ground contained in section 476(1)(a).  However, the particulars do not refer to any procedure other than the procedure said to be laid down by section 420.  The decision of the High Court in Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21makes clear that section 420 does not lay down a procedure with which compliance must be had. 

22                  In short, the Appellant has failed to establish any ground within section 476(1).  I share the disquiet expressed by Spender J at the conclusion reached by the Tribunal.  However, as I have said, that is not a ground for review.  The right of review conferred by the Act is not a right of appeal but one of judicial review of administrative action.  It may well be that, had there been a general right of appeal to this Court at first instance or the Court sitting as a Full Court, the Court may have come to a different conclusion.  The Tribunal’s assessment of the Appellant’s credibility was not based on his demeanour or his conduct in Court and, accordingly, it may well have been open to this Court, on a full appeal, to come to a different conclusion.  However, it is not necessary, and in fact probably undesirable, for us to express a view one way of the other as to whether or not we could have come to a different conclusion.

23                  I agree with the conclusion expressed by Spender J that no ground for appeal has been made out and accordingly that the appeal should be dismissed.  I do not wish to add anything to what has been said by Spender J on the question of the cross-appeal.  I agree with the orders proposed by Spender J.

HELY J:

24                  I agree that the appeal and the cross-appeal should each be dismissed for the reasons given by my colleagues.  I would simply like to add that I share the disquiet expressed by the presiding judge as to the process of reasoning by which strong and sweeping conclusions of fact were reached by the Refugee Review Tribunal adverse to the Appellant upon the basis of what might be thought to be somewhat slender foundations.  The trial judge obviously shared that disquiet, but as he correctly recognised, that did not expose the existence of any error of law or other ground of review on the part of the Tribunal.  I agree with the orders proposed.

Associate:

Dated:              14 May 1999