FEDERAL COURT OF AUSTRALIA

De Silva v Minister for Immigration & Multicultural Affairs [1999] FCA 1074

MIGRATION - whether RRT failed to make findings on material questions of fact

Migration Act 1958 (Cth), ss 36(2), 65(1), 430(1)(c), 476(1)(a), 476(1)(c), 476(1)(e)

Migration Regulations 1994(Cth), reg 2.08A; Sch 2, reg 866.221

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, cited

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543, cited

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, cited

Saliba v Minister for Immigration and Ethnic Affairs (1998) 159 ALR 247, cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, cited

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

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, followed

Logenthiran v Minister for Immigration and Multicultural Affairs, Full Court, 21 December 1998, unreported, cited

A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545, cited

Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, cited

AMBROSU KANKANAMAGE LIONAL TUDER DE SILVA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 378 OF 1999

JUDGE:                      SACKVILLE J

PLACE:                      SYDNEY

DATE:                        13 AUGUST 1999

THE COURT ORDERS THAT:

1.      The decision of the Refugee Review Tribunal (“RRT”) made on 6 April 1999, be set aside.

2.      The matter be remitted to the RRT, differently constituted, to be determined according to law.

3.      The respondent pay the applicant’s costs of the proceedings.

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

REASONS FOR JUDGMENT

The Proceedings

1                     The applicant is a citizen of Sri Lanka, and an ethnic Sinhalese.  He arrived in Australia as a visitor on 28 January 1996.  Upon arrival, he applied for and was granted a Sri Lankan Special Protection Visa (subclass 435), a concession to Sri Lankan nationals enabling them to remain temporarily in Australia.  In March 1996, the applicant’s wife and children arrived in Australia and also secured subclass 435 visas. The applicant renewed his visa on 5 July 1996.

2                     On 15 May 1997, the applicant applied for a protection visa.  He took this step shortly before the Minister announced that people holding subclass 435 visas would have to leave the country by 31 July 1997 unless they made some other application.  The application for a protection visa was rejected by the Minister’s delegate on 24 May 1997, on the ground that the applicant had not put forward any specific claims and that the delegate was therefore unable to determine that he would be liable to persecution if he were to return to Sri Lanka.

3                     On 22 July 1997, the applicant sought review by the Refugee Review Tribunal (“RRT”) of the delegate’s decision.  The application to the RRT was accompanied by a typed statement, nine pages in length, in which the applicant set out his claims.  His wife and children claimed to be members of his family unit and combined their applications with his, as permitted by the Migration Regulations 1994 (Cth) (“Migration Regulations”), reg 2.08A.

4                     It will be necessary to refer to the applicant’s claims in more detail later.  At this stage, it is enough to note that he claimed to have been a long-term supporter of the United National Party of Sri Lanka (“UNP”).  He also claimed to have cultivated a friendship with the late UNP President of Sri Lanka, Ranasinghe Premadasa, who had been assassinated in May 1993.  According to the applicant, when President Premadasa was killed, he (the applicant) lost high level protection against acts of revenge directed at him by local elements of the Sri Lanka Freedom Party (“SLFP”).  He also claimed that the President of the Provincial Council and chairman of the local council had been responsible for threats, acts of violence and harassment which made the applicant fear for his life.  These incidents, and others, had prompted him to leave Sri Lanka for Australia.  He feared persecution by reason of his political opinions, or imputed political opinions, if he were to return to Sri Lanka.

5                     The RRT held a hearing on 18 December 1998.  The applicant gave evidence through a Sinhalese interpreter and was represented by a solicitor.  The applicant’s wife also gave evidence.  By a letter dated 28 January 1999, the applicant’s solicitor forwarded documents to the RRT which were said to support the applicant’s claims and made further submissions on the applicant’s behalf.

6                     The RRT gave its decision on 6 April 1999.  It affirmed the delegate’s decision not to grant the applicant a protection visa, holding that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention Relating to the Status of Refugees (“Convention”).

7                     The applicant now seeks review of the RRT’s decision.  The amended application raises two grounds.  The first is that the RRT failed to observe the requirements of s 430(1)(c) of the Migration Act by reason of its

“[f]ailure to make findings on material questions of fact, being whether the applicant’s relationship with President Premadasa, and whether his activities [engaged in support of] the UNP during its time in power in Sri Lanka could have imputed to him a political profile sufficient to make political opponents want to do him harm.”

This is said to provide a ground of review under s 476(1)(a) of the Migration Act 1958 (Cth) (“Migration Act”),which permits review of a decision of the RRT on the ground that procedures that were required by the Act to be observed in connection with the making of the decision were not observed.

8                     The second is that the RRT erred in law in its interpretation and application of the concept of persecution by reason of political opinion, thereby providing a ground of review under s 476(1)(e) of the Migration Act.

Legislation

9                     Under s 65(1) of the Migration Act, the Minister may grant a visa only if satisfied that the criteria prescribed by the Migration Act or the Migration Regulations have been satisfied.  A criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention: Migration Act, s 36(2).  That criterion for a protection visa is fulfilled where, at the time of the decision, the Minister “is satisfied that the applicant is a person to whom Australia has protection obligations under the [Convention]”: Migration Regulations,Sch 2, reg 866.221.  Article 1A(2) of the Convention defines a refugee as a person who

“owing to 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 his nationality and is unable to, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The Applicant’s Claims

10                  The applicant said that his family had been traditional supporters of the UNP and that he had been an active supporter of its policies since 1975.  He was strongly opposed to the “corruption-ridden regime” of the SLFP and felt that only the UNP could defeat the separatist Tamils.

11                  In 1988, Ranasinghe Premadasa was elected to office as President of Sri Lanka on a platform of encouraging the growth of local industry.  The applicant concluded that the time was ripe to start his own concern.  Accordingly, he set up a cast iron manufacturing business.  He became successful and provided continuing financial and other support to the UNP.

12                  The applicant came under pressure from various political organisations and individuals to employ “doubtful” persons in his business.  These “requests” were made, among others, by the UNP, the Janatha Vimukthi Peramuna (“JVP”), and by the Provincial Council administration, which was in the hands of the SLFP. 

13                  Although the applicant attempted to accommodate the various factions, he found himself in difficulties.  In particular, the local SLFP made threats because the applicant employed members of the JVP, to which the SLFP was bitterly opposed.  This period (the late 1980’s and early 1990’s) involved a “reign of terror”, with abduction, concocted charges and even murder being rampant.

14                  The applicant was forced to intercede on behalf of those of his workers who were taken into custody.  Since these included JVP sympathisers, his actions earned him the deep hatred of the provincial SLFP leaders. The position worsened when the JVP mounted a campaign to bring down the national government, although the applicant received some protection because of his membership of the UNP.  Even so, he was forced to relocate his factory.

15                  The assassination of President Premadasa in May 1993 had “calamitous consequences” for the applicant.  According to the applicant, President Premadasa had regarded him as a “personal stalwart” because of the friendship the applicant had cultivated since 1975.  The President had been able to protect the applicant against acts of political revenge and his death left the applicant in a vulnerable position.  The new UNP President, Dingiri Banda Wijetunga, did not continue the personal protection afforded to the applicant.

16                  In 1994, at the presidential election, a coalition including the SLFP came to power.  Thereafter, the applicant received threatening letters and telephone calls warning him to close down his factory.  The local SLFP leaders openly reinforced that message.  The SLFP Chairman of the Provincial Council was an avowed political and personal enemy of the applicant.  The applicant suspected that the Chairman of the Council was behind the threats to his life.

17                  The applicant recounted a series of events which he claimed ultimately prompted him to leave Sri Lanka.  These were as follows:

·        On 11 May 1995, members of the local government works section attempted illegally to cut a drain in front of the applicant’s house.  In his written statement, the applicant said that the police had taken no action, but in his oral evidence he admitted that the police had stopped the unlawful works.

·        On the same day, the President of the Provincial Council appeared at the applicant’s house, ostensibly to conduct an on-the-spot inquiry.  The President threatened to kill the applicant and his wife, saying that the applicant was a “boot-licker of Premadasa and a hated member of the UNP”.  Police officers looked on and took no action.

·        On 25 May 1995, two weeks after the threats, a hand bomb was thrown at the applicant’s home, causing damage but no casualties.  The police took a long time to arrive, and took no action to trace the perpetrators.  The applicant also claimed that the police planned to arrest him for keeping a bomb in his house, presumably as a means of explaining away the explosion.  However, they were unable to carry through their plan because the bomb had struck high voltage cables after it had been thrown and thus did not explode inside the applicant’s house.

·        Four days later, the chairman of the local council entered the applicant’s compound and threatened his wife and son with death, saying that it was retribution for all the dirty things the applicant had done while the UNP was in power.  The applicant’s son called a police officer with UNP sympathies who sent a jeep-load of police to disperse a threatening crowd.

·        On 2 June 1995, a car belonging to a relative of the applicant was damaged while it was parked outside the applicant’s house.  The police took no action, despite a complaint being made.

·        On 6 June 1995, the applicant was notified that his factory premises were being compulsorily acquired to construct an access road.  According to the applicant, this was “purely an act of political revenge”.

·        On 18 July 1995, the applicant was arrested and accused of supplying cast iron artillery shell cases to the LTTE (the so-called “Tamil Tigers”).  He was taken to Colombo and interrogated for four or five days.  During this time, the applicant was severely beaten and kicked, at one point fainting with the pain.  The applicant was charged under the Prevention of Terrorism Act.  On 27 July 1995, he was released on bail, subject to reporting conditions.

·        On 19 November 1995, while free on bail, the applicant was abducted by unknown persons and driven towards Colombo.  However, he managed to escape.

18                  After the last incident, the applicant went into hiding, but still fulfilled his bail conditions by signing in at a police station each week.  He applied for a tourist visa to Australia, and left Sri Lanka on 27 January 1996, arriving in Australia the next day.

The RRT’s Reasons

19                  The RRT recounted at some length the applicant’s claims and evidence at the hearing.  It noted certain matters which cast doubt on the applicant’s credibility.  These included a claim, which the RRT found difficult to accept, that the applicant believed that he had a period of four weeks after lodging his original claim within which to provide further details.

20                  The RRT briefly outlined the political background in Sri Lanka during the 1980’s and 1990’s.  The RRT noted that the August 1994 Parliamentary elections had been won by the People’s Alliance (“PA”), comprising the SLFP and a number of smaller parties.  The UNP’s presidential candidate had been assassinated in October 1994.  The RRT commented that “[p]olitical violence is a perennial problem in Sri Lanka”.  However, it pointed to advice from the Department of Foreign Affairs and Trade (“DFAT”) that none of the reports of political violence in Sri Lanka suggested that the Government was supportive of, or turned a blind eye to violent actions by PA members against UNP supporters.  DFAT had advised that claims of political harassment by UNP supporters should be viewed with scepticism.  All parties had equal access to the law and to police protection.  There had been no cases of the PA Government or its local officials framing UNP supporters on criminal charges.

21                  The RRT considered the applicant to be an unimpressive witness.  He had failed to answer questions directly.  Moreover, he

“proved to be unable to give any cogent explanation as to why he would have been singled out from the many UNP supporters in his area to be harassed or why his political opponents would have been sufficiently motivated to want to kill him.”

The RRT rejected the applicant’s claim that he had been the only UNP supporter in his area.  It also rejected his claim that his acts in creating employment in the area had hindered the SLFP.  According to the RRT, that would not have provided a reason for harassment.  The RRT said nothing about his claim to have been regarded as a “personal stalwart” of President Premadasa.  Nor did it explain why the applicant’s claimed financial support for the UNP would not have provided a reason for harassment by local political opponents.

22                  The RRT then pointed out that, although the applicant claimed to have been released from prison at the end of July 1995, he took no steps to leave the country until January 1996, except for making some general inquiries.  Moreover, even when the applicant arrived in Australia, he had applied for the temporary subclass 435 visa rather than a protection visa.  The RRT rejected the applicant’s explanation that he had believed, until he lodged his application for a protection visa, that the subclass 435 visa adequately protected him and his family.

23                  The RRT said that it is well established that an applicant’s delay in lodging his or her application for refugee status is relevant in assessing the genuineness of the claimed fear of persecution, citing Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347.  Accordingly, the RRT was not satisfied,

“having regard to the Applicant’s actions both before he left Sri Lanka and after he arrived in Australia, that the Applicant genuinely holds a subjective fear of being persecuted for a Convention reason if he returns to Sri Lanka.”

24                  The RRT continued by accepting a number of factual propositions “for the purposes of this review”.  It did not explain why it employed this curious phrase, as distinct from simply finding that the relevant events had occurred.  Perhaps the RRT, having reached the conclusion that the applicant did not have a subjective fear of persecution for a Convention reason thought that detailed analysis was not required.  Later in its reasons, the RRT used language which implied that it may not have accepted that the applicant had incurred the enmity of local SLFP politicians.  Be that as it may, the only fair reading of the decision is that the RRT accepted key elements of the applicant’s account.

25                  The claims accepted by the RRT were as follows:

(i)         The applicant was a supporter of the UNP in Sri Lanka.

(ii)        In May 1995, officers of the Provincial Council had started to cut a drain in front of the applicant’s house.

(iii)       A bomb was thrown at the applicant’s house on 25 May 1995.

(iv)       Four days later the SLFP chairman of the local council threatened the applicant’s son and wife with death.

(v)        On 2 June 1995, a relative’s car was damaged.

(vi)       In June 1995, the applicant’s factory was compulsorily acquired.

(vii)      In July 1995, the applicant was arrested on suspicion of having supplied cast iron artillery shell cases to the LTTE.

26                  In addition, the RRT referred to the applicant’s claim that the police stood by when the President of the Provincial Council “allegedly made threats against” the applicant on 11 May 1995.  The RRT did not expressly state whether it accepted the applicant’s account of the threats.  Nowhere, however, did the RRT indicate that it rejected the applicant’s account on this point.  Indeed, the RRT’s reasoning rather suggests that it accepted that the threats were made, but did not consider them especially significant for other reasons.

27                  The RRT commented on each of the particular events it accepted had occurred.  It dealt with them as follows (using the same numbering):

(ii)        As far as the incident concerning the drain was concerned, the RRT found that the applicant had been accorded effective protection by the police against the illegal actions of the Council.

(iii)       While a bomb had been thrown at the applicant’s house, he had been

                        “unable to suggest any cogent reason as to why his political opponents should have been sufficiently motivated to want to kill him.”

There was nothing inherently sinister in the fact that the police were unable to identify the perpetrators and there was no objective evidence to support the applicant’s theory that the chairman of the council was behind the bomb explosion.  Further, there was no basis for the applicant’s suggestion that the police had planned to arrest him for keeping a bomb inside his house.

(iv)       When the chairman of the council had threatened the applicant’s wife and son, the police had come to the house to protect his family.

(v)        The damage to the relative’s car was simply an accident.

(vi)       The compulsory acquisition of the applicant’s factory had been carried out in the same way as any other acquisition of land from a citizen.  The applicant was treated no differently by reason of his support for the UNP.

(vii)       There was no objective evidence to support the applicant’s contention that his arrest in July 1995 was politically motivated.  On the applicant’s own account, the LTTE may have been using valves manufactured by him as shell cases.  On the face of it, the police had legitimate grounds for suspicion and whether that suspicion was well-founded could only be determined at a trial.  This was reinforced by information from DFAT, indicating that there had been no cases of the PA Government or its local officials framing UNP supporters.  The RRT did not accept that the applicant would not receive a fair trial.  Nor did it accept that the applicant’s arrest and detention were because of any political opinion he had expressed or which had been attributed to him.

The RRT considered that the evidence did not establish that the applicant had been mistreated for a Convention reason “rather than simply [in] the normal course of the interrogation of criminal suspects in Sri Lanka”.  Such mistreatment constituted persecution, but it was not for a Convention reason.  The RRT did not accept that the applicant would be treated differently for his alleged crime by reason of the fact that he was a UNP supporter.

28                  The RRT’s only specific reference to the threats made by the President of the Provincial Council on 11 May 1995 was in the context of its examination of whether the Sri Lankan Government was powerless to prevent persecution of the applicant by local political opponents (to which I refer in par 29).  It is not clear why the RRT did not consider it appropriate to mention the threats when considering the significance of the bomb attack of 25 May.

29                  In the final part of its reasons, the RRT found that, even if it were prepared to accept that the applicant had attracted the enmity of the SLFP President of the Provincial Council or the chairman of the local council, it did not accept that the Sri Lankan Government either encouraged or was powerless to prevent persecution of the applicant by powerful local politicians.  The RRT reasoned as follows:

“In the present case the Applicant’s evidence is that when he has sought the protection of the police, as he did in relation to the digging of the canal and again when the Chairman of the local council came to his home and threatened his wife and children, that protection was forthcoming.  The Applicant claims that the police did not investigate the alleged attempt to kill him with a bomb in May 1995, that they stood by when the President of the Provincial Council allegedly made threats against him the same day, and that they did not investigate the attempt to abduct him in November 1995.  However the Applicant admitted that in the latter case he had been unable to identify the culprits.  As referred to above the Applicant apparently believes that the Chairman of the local council was responsible for the bombing but he was unable to suggest any reason why this person would be sufficiently motivated to want to kill him.  To the extent of any inconsistency I prefer the advice of the Australian Department of Foreign Affairs and trade that the PA Government is not harassing UNP supporters and that they have equal access to the law and to police protection (DFAT cable CL439, dated 30 December 1996, CX20894).  I do not accept, therefore, that the Sri Lankan Government either encourages or is powerless to prevent any persecution of the Applicant by powerful SLFP politicians in his local area.”

30                  The RRT concluded that it was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he were to return to Sri Lanka.  It followed that he was not a person to whom Australia had protection obligations under the Convention.

Curious Features of the RRT’s Reasoning

31                  The RRT’s reasoning contains a number of curious features.  The first concerns the manner in which the RRT reached the conclusion, early in its reasoning, that the applicant did not genuinely hold a subjective fear of being persecuted for a Convention reason if he were to return to Sri Lanka.  It might be thought that such a finding could be made only after an analysis of the applicant’s claims of persecutory conduct directed at him, and the making of findings as to whether those claims should be accepted: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 294, per Kirby J; Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, at 578-579 (joint judgment); Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC), at 551.  Yet the RRT apparently felt able to make the finding simply because of the applicant’s delay in leaving Sri Lanka and in lodging an application for a protection visa once he arrived in Australia.

32                  One consequence of this approach is that the RRT’s reasons do not analyse the significance of the pending prosecution against the applicant under the Prevention of Terrorism Act in relation to the applicant’s delay in seeking a protection visa.  Later in its reasons, the RRT found that the prosecution was not motivated by the applicant’s political profile, but was an ordinary incident of the processes of the criminal law in Sri Lanka.  But the RRT acknowledged that the physical ill-treatment the applicant claimed to have experienced in custody amounted to persecutory conduct, albeit not inflicted for a Convention reason.  There is nothing in the RRT’s reasons to suggest that it rejected the applicant’s account of his maltreatment in custody; on the contrary, the RRT appears to have accepted that the applicant was physically abused, but that this was a normal incident of the Sri Lankan criminal justice system.

33                  The RRT’s reasons do not consider the obvious point that, if the applicant faced prosecution under the Prevention of Terrorism Act and if he faced the prospect of further physical ill-treatment while in custody, he had the most powerful incentive to remain in Australia permanently and to take steps to bring about that result.  This does not mean, of course, that the RRT was bound to accept his explanation for his apparent delay in applying for a protection visa.  But the applicant’s fear of prosecution and further ill-treatment (whether or not for a Convention reason) was plainly relevant to the plausibility of the explanation that, until May 1997, he thought the subclass 435 visa adequately protected him.

34                  A second curious feature of the RRT’s reasoning is its insistence on the proposition that the applicant had failed to give any cogent explanation as to why local SLFP officials would have been sufficiently motivated to want to kill him.  The RRT specifically stated that “[p]olitical violence is a perennial problem in Sri Lanka”.  In this setting, the applicant’s claims that he was a prominent supporter of the UNP and had been a close friend of the assassinated President, might have been thought to have some cogency as a basis for attracting the enmity of local political opponents.  (Whether or not the applicant’s claims were soundly based in fact is, of course, another question.)

35                  More importantly, the RRT accepted that on two separate occasions the applicant or his family had been subjected to death threats by local SLFP officials.  The RRT did not suggest that the threats were anything other than serious.  Moreover, the threats had been punctuated (so the RRT accepted) by a bombing of the applicant’s house by unknown perpetrators.  These factual findings rather suggest that, whether or not motivated by “cogent” considerations, the SLFP officials were in fact motivated to harm the applicant and his family and that they expressed the reason for their hostility as his relationship with the UNP and the late President.  It is, of course, well established that a person can be persecuted for his or her imputed political opinions, even though the victim does not hold those opinions: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, at 433, per McHugh J; Saliba v Minister for Immigration and Ethnic Affairs (1998) 159 ALR 247, per Sackville J.

36                  Thirdly, the RRT dismissed the significance of the bomb explosion of 25 May 1995, on the basis that there was nothing to support the applicant’s theory that the SLFP chairman of the council was responsible and that there was nothing “inherently sinister” in the police being unable to identify who was responsible for the attack.  Yet the RRT accepted that the chairman of the local council, four days later, had threatened to kill the applicant’s wife and son.  A death threat by another official of the SLFP (so the RRT appeared to have accepted) had been made two weeks earlier.  In the light of the findings concerning the bombing and the threats, it is not easy to follow the process of reasoning leading to the conclusion that the applicant did not have a well-founded fear of persecution for a Convention reason.

37                  Fourthly, the RRT concluded its reasons by finding that, even if it were prepared to accept that the applicant had attracted the enmity of the local SLFP politicians, the Sri Lankan Government was not powerless to protect him.  This passage implies that the RRT elsewhere had found that he had not attracted the enmity of the local SLFP politicians.  Yet the RRT accepted that the chairman of the local council had threatened the applicant’s wife and son, and also appears to have accepted that the President of the Provincial Council had also made death threats.  The reasons do not explain the apparent contradiction.

38                  These features of the RRT’s reasons do not, however, necessarily suggest reviewable error on the part of the RRT.  Factual errors – even egregious factual errors – do not provide a basis of themselves for setting aside a decision of the RRT.  As the High Court has emphasised on many occasions, most recently in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, at 589, per Gleeson CJ and McHugh J, it is not for the Court to canvass the merits of the RRT’s factual analysis.  The point was forcefully made by the Full Court in Minister v Epeabaka, at 551-553, holding that illogicality or unreasonableness in fact-finding, of themselves, do not constitute an error of law.

The Submissions

39                  Mr Karp, who appeared for the applicant, recognised that it was not open to the applicant to challenge the RRT’s decision on the merits.  He relied primarily on what was said to have been the failure of the RRT to set out “the findings on any material questions of fact” as required by s 430(1)(c) of the Migration Act.  In particular, he submitted that the RRT had failed to make findings on the following issues:

·        whether the applicant (as he had claimed) was a personal friend and ally of the late President;

·        why the threats against the applicant and his family had been made; and

·        who had thrown the bomb at the applicant’s home, and for what reason.

Mr Karp submitted that the failure to make findings on these issues constituted a ground of review under s 476(1)(a) of the Migration Act.

40                  Mr Karp also submitted that the RRT had not considered “the real question which it was its duty to consider” and had thus erred in law within s 476(1)(e) of the Migration Act.  Alternatively, the RRT had constructively failed to exercise its jurisdiction, thereby making a “decision” not authorised by [the Migration Act]” within s 476(1)(c) of the Act. Perhaps as another way of making the same point, Mr Karp contended that the RRT, having made findings on specific claims made by the applicant, should have considered the ultimate question, namely whether he had a well-founded fear of persecution for reasons of actual or imputed political opinion, by reference to all the circumstances of the case.  According to Mr Karp, it had failed to do so.

41                  Mr Godwin, for the Minister, identified three bases for the RRT’s decision.

42                  First, the RRT had not been satisfied that the applicant held a subjective fear of being persecuted for a Convention reason.  This finding, in turn, had three limbs: the applicant’s inability to provide a cogent reason why he would be singled out for harassment or why his opponents would be motivated to kill him; his delay in attempting to leave Sri Lanka; and his failure to apply for a protection visa until May 1997.

43                  Secondly, the Sri Lankan Government neither encouraged nor was powerless to prevent any persecution of the applicant by local SLFP politicians.  This finding was based on the fact that on two prior occasions effective protection had been afforded to the applicant.  It was also based on independent evidence suggesting that the Government had not harassed UNP supporters and that they had equal access to the law.

44                  Thirdly, the events relied on by the applicant to establish his fear of persecution for reasons of political opinion had been found by the RRT either not to have occurred or to have occurred for reasons completely unconnected with his political opinions, actual or imputed. Mr Godwin contended that it was implicit in the RRT’s reasons that it had found that the bomb which had been thrown at the applicant’s house on 25 May 1995 had not been the work of the applicant’s local political opponents.  This followed from the RRT’s finding that the applicant had been unable to give a cogent reason why the political opponents would threaten to kill him.  Further, the RRT had intended to find that the threats made by the applicant’s political opponents were “empty”.  This, too, followed from the applicant’s inability to provide a cogent reason for the making of a “real threat”.

45                  Nor was it necessary for the RRT to make a specific finding as to the applicant’s friendship with the late President.  This was because the applicant had never given his friendship with the President as a reason for the acts directed against him.  Rather, he had referred to the death of the President as significant simply because he had lost the protection of the President’s patronage.  Despite being asked to explain why he had been targeted, the applicant had not identified his relationship with the late President as the reason.  It was not for the RRT to make out the applicant’s case for him.

Reasoning: Duty to Set Out Findings on Material Questions of Fact

46                  Certain points can be taken as established so far as the requirement in s 430(1)(c) of the Migration Act is concerned:

(i)         A failure by the RRT to comply with the requirement in s 430(1)(c) activates the ground of review provided for in s 476(1)(a) of the Migration Act: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 (FC), at 414-415, per Sackville J; Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 (FC), at 37, per Lindgren J; at 63, per Merkel J; Logenthiran v Minister for Immigration and Multicultural Affairs (Full Court, 21 December 1998, unreported), at 13.

(ii)        Section 430(1)(c) does not require the RRT to make findings about every factual matter raised by the applicant.  Findings need only be stated in relation to questions material to the ultimate decision: that is, in relation to substantial issues on which the application turns: Paramananthan, at 27, per Wilcox J; Muralidharan, at 414.

(iii)       The reasoning and findings of the RRT are to be given a beneficial construction and are not to be scrutinised in an overly critical manner: Minister v Wu Shan Liang (1996), at 271-272.  The RRT’s reasons, read as a whole, may suggest that, although findings have not been made on a particular issue, they have nevertheless been made implicitly: A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 (FC), at 557.

(iv)       The purposes underlying provisions such as s 430(1)(c) include ensuring that the RRT’s reasoning process is disclosed and that an unsuccessful applicant understands why he or she failed: Muralidharan, at 414-415, Paramananthan, at 27.

47                  In my opinion, the RRT in the present case failed to make findings on several factual contentions critical to the applicant’s case.  It was central to the applicant’s case that his home had been bombed and that he had been subjected to death threats by local SLFP officials by reason of his high political profile as a prominent UNP supporter closely associated with the assassinated President Premadasa.  The RRT found that the bombing had occurred and that threats had been made.  It made no finding as to the identity or motivation of the perpetrators of the bombing, beyond finding that there was nothing inherently sinister in the fact that the police were unable to identify who was responsible for the bomb attack.  In particular, it made no finding that, whoever the perpetrators might have been, the bombing had nothing to do with the applicant’s political opinions or affiliations, actual or imputed.  Nor did the RRT make a finding that the death threats were anything other than genuine and (as the applicant claimed) based on his political profile.

48                  It is quite true that, as Mr Godwin pointed out, the RRT found that the applicant could give no cogent reason as to why his political opponents would wish to threaten him.  There are difficulties with this finding, in the absence of a specific rejection of the applicant’s claim to a high political profile by reason of his association with the assassinated President.  Nonetheless, the RRT’s finding might, in some circumstances, be thought to imply that the RRT intended to find that the bombing incident was entirely unrelated to the applicant’s political profile.  But in this case, the RRT found that local SLFP officials had made death threats to the applicant and his family shortly before and shortly after the bombing.  In these circumstances, in the absence of further findings of fact, it is difficult to understand how the RRT reconciled the threats and the bombing with its conclusion that the applicant had neither a fear nor a well-founded fear of persecution for a Convention reason.

49                  This is not to suggest that the RRT, even if it found that the threats had been made and the bombing had occurred, was bound to accept the applicant’s claim.  But why was the claim rejected?  Did the RRT intend to accept that the perpetrators of the bombing, although not identified, might have been associated with the applicant’s political opponents?  If so, how was this finding to be reconciled with the conclusion that the applicant did not have a genuine fear of persecution for a Convention reason?  (If the RRT was uncertain as to whether the applicant’s political opponents had been involved in the bombing, that very uncertainty may have been relevant to an assessment of whether the applicant had a well-founded fear of persecution: Minister v Guo, at 576-577; Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 (FC), at [62]-[63] per Sackville J.)  Did the RRT intend to find affirmatively that the perpetrators, whoever they were, had no connection with local SLFP officials?  If so, how was this conclusion to be reconciled with fact of the death threats?  Did the RRT take the view, as Mr Godwin suggested, that the threats were not “real”?  Or did it consider that the threats were genuine, but that the local SLFP officials could be kept in check by the local police force?  If the RRT took the view that the police force could adequately protect the applicant and his family, how was this conclusion to be reconciled with the fact that the police were apparently powerless to prevent someone throwing a potentially lethal device at the applicant’s house?

50                  It was, of course, a matter for the RRT to make findings of fact.  For example, having regard to the RRT’s expressed view that the applicant lacked credibility as a witness, it may have been open to the RRT to find that the alleged threats had never been made and the bombing had not taken place (although there was some contemporaneous material tending to corroborate aspects of the applicant’s account).  Such a finding at least would have enabled the applicant to understand why his claim had been rejected.  The absence of any finding as to whether the local SLFP officials were or might have been involved in the bombing, or as to whether the threats were seriously intended and understood as seriously intended, makes it impossible to follow exactly why the RRT rejected the applicant’s claims.

51                  As I have explained, it is necessary to give the RRT’s reasons a beneficial construction.  But I think a distinction is to be drawn.  It is one thing to interpret reasons as making findings which, although not expressed, are clearly implied by the RRT’s process of reasoning and explicit findings of fact.  It is another to impute findings on material issues that the RRT has not addressed.  In the latter case, it is not enough to avoid the effect of s 430(1)(c) of the Migration Act to conclude that, had the RRT turned its attention to the material issues, it was likely to have found against the applicant.  I think that this case falls into the second category.

52                  In my opinion, the RRT’s failure to make a finding as to whether the applicant’s claimed association with the assassinated President gave him a high political profile also involved a contravention of s 430(1)(c) of the Migration Act.  A consistent theme throughout the RRT’s reasons is the inability of the applicant to suggest any plausible reason why his local political opponents would want to kill him.  Some reasons put forward by the applicant (such as the fact that he had provided substantial local employment) were specifically rejected by the RRT.  Yet it did not address his claims to have been a “personal stalwart” of the President and to have enjoyed the latter’s personal protection.  If these claims had been accepted by the RRT, they might well have been capable of providing a plausible reason as to why local SLFP officials might have wished to harm the applicant.  As I have pointed out, the RRT’s assessment of the motives of the local SLFP officials had to take place in the context of its finding that some of the officials had indeed made death threats to the applicant and his family.

53                  It will be recalled that Mr Godwin submitted that the RRT was not obliged to make any finding concerning the applicant’s claimed association with President Premasada, because the applicant had never contended that that association was a reason why the local SLFP officials might want to kill him.  I agree that if the applicant had never advanced the contention, the RRT was not obliged to make a finding about it.  In such circumstances, the truth of the claimed association between the applicant and the late President could not have been a “material question of fact” in the proceedings.

54                  I do not, however, accept Mr Godwin’s submission that the applicant had merely referred to the President’s death as a reason why he had lost political patronage, rather than as a reason for his political opponents to kill him.  That seems to me to be a rather too subtle and narrow interpretation of the applicant’s case.  The applicant’s written statement to the RRT said this:

“It was he [the President] who was able to protect me against acts of political revenge which were directed against me by the Provincial SLFP administration.  His death left me in a most vulnerable position.  His assassination triggered open clashes between UNP and SLFP supporters and I too became a victim, eventually.”

This passage, referring to “acts of political revenge”, immediately followed the applicant’s assertion that he enjoyed a close friendship with President Premadasa.  A fair reading suggests that the applicant was claiming that his association with the late President rendered him vulnerable to acts of political revenge.  The point is strongly reinforced by the applicant’s specific claim (apparently accepted by the RRT), that the threat made by the President of the Provincial Council, on 11 May 1995, was accompanied by the statement that the applicant was “a boot-licker of Premadasa and a hated member of the UNP”.

55                  Mr Godwin relied on what he said was the applicant’s failure, when asked by the RRT member why people would have been sufficiently motivated to kill him, to mention his association with the late President.  But the applicant, in his response, referred to the fact that he was “a leading supporter and helper of the UNP”.  Earlier, he had been asked about problems he had experienced after the President’s assassination by reason of his membership of UNP.  He replied:

“As a supporter of President Premadasa, after his assassination, the opposition party was taking control.  They were looking forward to attack UNP supporters.  Because of this I also had severe problems....”

I think it clear enough that the applicant was asserting that his ties with President Premadasa increased his perceived political profile and provided a motive for local SLFP opponents, operating within (as he claimed) a culture of political violence, to kill him.  In these circumstances, I think that the applicant’s claimed association with the President, and the effect of that association on his political profile, were material questions of fact on which the RRT should have made findings, especially in view of its insistence that the applicant had provided no plausible explanation for his claim that his political opponents wished to kill him.

56                  In my opinion, the conclusion that the RRT failed to comply with s 430(1)(c) of the Migration Act is not affected by the RRT’s finding that, even if it were to accept that the applicant had attracted the enmity of local SLFP politicians, it nonetheless did not accept that the applicant had a well-founded fear of being persecuted for this reason.  In reaching this conclusion, the RRT repeated its observation that the applicant could not suggest any reason why the chairman of the local council would want to kill him.  It seems, therefore, that the RRT’s reasoning rested on the assumption that, even if there were enmity between the applicant and the local SLFP politicians, the latter would not act in a manner that would seriously threaten the physical well-being of the applicant.  As I have already explained, it is difficult to follow how the RRT could make such an assumption without making findings on the issues I have identified.

Additional Arguments

57                  In view of the conclusion I have reached, it is not necessary to consider the additional arguments put forward on behalf of the applicant.  In a sense, those arguments amounted to different ways of presenting the same fundamental point.  Nonetheless, I think that there is force in the applicant’s submission that the RRT erred in law, by failing to take into account its own findings in determining whether the applicant had a well-founded fear of persecution.

58                  The RRT was entitled to put to one side events which it found had not occurred, or which it found had occurred for reasons making them irrelevant to the applicant’s claims.  For example, the RRT was entitled to put to one side the applicant’s claim that he had been prosecuted by reason of his political beliefs, since it found that the applicant’s arrest was not politically motivated, and that the police had legitimate grounds for suspicion.

59                  But when these events were put to one side, there remained on the RRT’s own findings, the bombing of the applicant’s house and the more or less contemporaneous death threats by the local SLFP officials.  The RRT did not consider whether, in the light of those claims put forward by the applicant it was prepared to accept that he was at risk of physical harm in Sri Lanka by reason of his actual or imputed political profile.  The omission suggests that the RRT did not correctly apply the test for determining whether the applicant had a well-founded fear of persecution for a Convention reason if he were to return to Sri Lanka.  However, it is not necessary to express a final view on this issue.

Conclusion

60                  The applicant has made out a ground of review under s 476(1)(a) of the Migration Act.  The decision of the RRT made on 6 April 1999 should be set aside and the matter remitted to the RRT, differently constituted, for determination according to law.  The Minister should pay the applicant’s costs.

Associate:

Dated:              13 August 1999