FEDERAL COURT OF AUSTRALIA

Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740

MIGRATION– appeal - Sri Lankan Tamil – application for protection visa refused by Refugee Review Tribunal – review dismissed – whether primary judge in error that Tribunal had not failed to deal with evidence contrary to its findings – whether Tribunal obligated by statute to address such evidence in its reasons – whether illogicality or lack of specificity in reasons amount to error of law  - whether failure to make findings on credible material disabled the Tribunal from applying the ‘real chance’ test in accordance with the law

Migration Act 1958 (Cth) ss 430, 476

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 28

Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B)

Abebe v Commonwealth (1999) 162 ALR 1 cited

Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 cited

Baljit Kaur Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1126 cited

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

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

Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 cited

Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 cited

Addo v Minister for Immigration  and Multicultural Affairs [1999] FCA 940 applied

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 cited

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

ANANDARAJAH SIVARAM V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N688 of 1999

WHITLAM, R D NICHOLSON and GYLES JJ

17 DECEMBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs of the appeal.

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from an order of von Doussa J made on 25 June 1999 dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 January 1999.  In that decision the Tribunal affirmed a decision made by a delegate of the respondent refusing the appellant a protection visa on the ground he is not a person to whom Australia has protection obligations under s 36(2) of the Migration Act 1958 (Cth) (“the Act”).  The Tribunal reached that view because it was not satisfied the appellant had a well-founded fear of being persecuted for a Convention reason if he returned to the country of his nationality, which was Sri Lanka.

2                     The ground on which review was sought from the Court was that procedures required by the Act to be observed in connection with the making of the decision were not observed: s 476(1)(a) of the Act.  This ground relied on the allegation that the Tribunal had failed to prepare a written statement which complied with the requirements of s 430(1) of the Act.  That is also the first present ground of appeal.  With the leave of the Court a second ground was added at the commencement of the hearing.  It alleges that the Tribunal erred in its interpretation and application of the law as to what constitutes a “well-founded” fear of persecution within the meaning of article 1A of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).  However, by this second ground it was not intended to raise for the consideration of the Court matters other than those arising in support of the first ground save the application of them to the terms of the second ground.

3                     The consequence is that the appeal raises the issue of the scope and purpose of s 430(1) of the Act.

Section 430(1) provides:

“Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)       sets out the decision of the Tribunal on the review; and

(b)       sets out the reasons for the decision; and

(c)        sets out the findings on any material questions of fact; and

(d)               refers to the evidence or any other material on which the findings of fact were based.”

4                     The precise wording of s 430(1) needs to be considered.  Leaving aside for the moment the effect of decisions of this Court concerning the sub-section, it seems to us that a plain reading of s 430(1)(c) and (d) supports the following understanding of their effect:

(1)        paragraphs (c) and (d) are to be distinguished because the latter refers to “evidence or any other material” whereas the former refers to “findings on any material questions of fact.”  The implication from this is that evidence is to be distinguished from material questions of fact.  This accords with the long recognized distinction drawn between facts in issue or principal facts and facts relevant to the issue: Phipson on Evidence 14^th ed 1990 pars 7-01 and 7-02.  The result is that the statute reinforces the distinction between material questions of fact and pieces of evidence.

(2)               the sub-section itself does not provide any test of materiality.  “Material” is defined in Butterworths’ Australian Legal Dictionary as “important, essential or relevant.”  The word material relates to the reasons for the decision.  What is material will be determined by reference to the requirements of the statute: cf Abebe v Commonwealth (1999) 162 ALR 1 at 195 and Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.  Because of the distinction drawn between pars (c) and (d) and because of the exclusion from the jurisdiction of the Court of the grounds of judicial review based on relevance (see s 476(1)(d) and (3)(d) and (e) of the Act), the test of materiality will not be determined by relevance alone.  It may be that notions of “essentiality” or “significance” could inform delineation of the concept of materiality but it is not necessary here to develop that issue further.  There will always, however, be the need for judgment by the Tribunal and courts of review as to whether questions of fact do or do not come within the circle of materiality.  Important to that will be consideration of the nature of the claim before the Tribunal.

(3)                    where the findings of fact of the Tribunal are positive findings of fact, par (d) will require reference in the written statement to the evidence or any other material on which those findings are based.

(4)        where the findings of material fact of the Tribunal are negative findings of fact, that is findings rejecting the existence of material questions of fact, par (d) may require the written statement to refer to the evidence or other material on which the rejection of the fact is based, depending upon the basis for rejection.

In our view, there is nothing in a plain reading of the section which requires the Tribunal to set out the evidence which is contrary to the findings of the Tribunal on any material questions of fact where such evidence is not evidence upon which a positive or negative finding is based.

It is against this background that we come to the decisions of the Court concerning the application of s 430(1) in the circumstance just mentioned.  The chain of decisions and the conflicts within it have been set out by Drummond J in Baljit Kaur Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1126.  It is sufficient for the present to state that the view that s 430(1) requires reference to evidence contrary to the findings of the Tribunal is supported by the decisions of the Full Court in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, see particularly Wilcox J at 30-31; Logenthiran v Minister for Immigration and Multicultural Affairs (Wilcox, Lindgren and Merkel JJ, 21 December 1998, unreported); and Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182. The contrary view was held by the majority of the Full Court in Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 (Branson J dissenting) and Addo v Minister for Immigration  and Multicultural Affairs [1999] FCA 940.  In Addo at par 24 the Court (Spender, O’Connor and Emmett JJ) said:

“Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based.  Section 430 does not require a decision maker to give reasons for rejecting evidence inconsistent with the findings made.  Accordingly, there was no failure to comply with s430(1) of the Act.”

At par 31 the same Court said:

“It is not necessary, in order to comply with section 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.”

5                     In our opinion the view of the Full Court in Addo is to be preferred.  This follows from the considerations which we have set out above.  We therefore approach the appellant’s case on the basis that a proper understanding of the requirements of s 430(1) shows that it does not require a Tribunal to set out evidence or any other material on which the findings of fact were not based in that such evidence was contrary to those findings.

6                     The appellant’s grounds previously referred to are particularised in four ways.  The reasons of the Tribunal to which they are directed are fully set out in the reasons of von Doussa J and we do not propose to repeat them here, except so far as it may be necessary for the purposes of these reasons.

7                     The first particularisation is that there is a lack of logic in the reasoning of the Tribunal.  It is contended that when the Tribunal accepted that all the information available to it suggested that it is young Tamils recently arrived from the North or the East who are most at risk of being arrested in Colombo, it does not follow that there is not a real chance that a Tamil from Jaffna who is over forty and does not speak Singhalese will be arrested, detained or questioned by the Sri Lankan authorities in Colombo.  This is to be considered in conjunction with the second particularisation which is to the effect that the Tribunal referred to evidence on this point without specificity and that a proper reference would show that those materials do not contain, in terms, the suggestion that it is young Tamils recently arrived from the North or the East who are most at risk of being arrested in Colombo. 

8                     These, and other particularisations, are said to arise from the following paragraph of the Tribunal’s reasons:

“The Applicant’s representative submitted that it was not reasonable to expect the Applicant to relocate to Colombo because he did not speak Singhalese and because he would face a risk of arrest as a Tamil from the Jaffna Peninsula or more specifically from Valvedditturai. 

For reasons that I have given above, I do not consider that the Applicant will be at particular risk of arrest merely because he comes from Valvedditturai and I do not accept that there is a real chance that he will be arrested, detained or questioned by the Sri Lankan authorities in Colombo merely because he is a Tamil who comes from Jaffna.  As I put to the Applicant in the course of the hearing before me, all the information available to me suggests that it is young Tamils recently arrived from the North or the East who are most at risk of being arrested in Colombo (DFAT cables CL821, dated 13 February 1998, CX28768, CL12970; Amnesty International, Sri Lanka: Wavering commitment to human rights, August 1996, page 21).  The Applicant is aged over 40 and therefore can no longer be regarded as a ‘young Tamil’ nor, if he returns to Colombo now, will he have recently arrived from the North or the East.

9                     There are two answers to these contentions for the appellant.  The first is that illogicality in reasons does not give rise to error of law: Minister for Immigration and Multicultural Affairs v. Epeabaka (1999) 84 FCR 411.  The second is that, upon examination, what these contentions are inviting the Court to do is to engage impermissibly in merits review: Minister for Immigration and Multicultural Affairs v. Eshetu (1999) 162 ALR 577 at 603 per Gummow J.  The Tribunal was required to evaluate the material before it in relation to the differential level of risk faced by Tamils in Colombo.  Reference to the material show that the conclusion which the Tribunal drew from it was open to it.

10                  The third particularisation is that the reasons of the Tribunal make no reference to the British Refugee Council’s report dated February 1997, extracts of which were referred to in a letter of submission from the solicitors for the appellant to the Tribunal.  It is not disputed that the submissions were referred to in the reasons.  Nevertheless it is contended that by rejecting the appellant’s significant factual claim that all Tamils were at some risk without referring to the British Council report, the Tribunal fell into error.  The British Council report is the same report which was at issue in both Paramananthan at 30-31 and Logenthiran. 

11                  In similar vein is the fourth particularisation to the effect that the Tribunal’s reasons failed to address a report of the Danish Immigration Service.  This report also arguably supported the appellant’s claim that all Tamils are at risk.  It is not the case that no reference was made in the reasons to this report.  Its effect was set out in detail.

12                  In his reasons von Doussa J accepted that each of these reports was relevant.  We accept that finding and so do not attempt to distinguish this case from Paramnanathan or Logenthiran, although there are arguable differences in the degree of relevance in this case to that in those cases.

13                  These contentions for the appellant are answered by the view which we take of the effect of s 430(1).  The contentions seek to raise pieces of evidence to the level of material questions of fact.  Furthermore, they seek to extend the application of the section to pieces of evidence not relied upon by the Tribunal in reaching its findings on material questions of fact and to evidence contrary to the evidence on which such findings were based.

14                  With reference to the second ground of appeal, it is contended that because the Tribunal had failed to make findings on credible material tending to establish the appellant’s fear was or could have been well-founded, the Tribunal was necessarily disabled from applying the ‘real chance’ test in accordance with the law: Paramananthan at 60 per Merkel J.  It follows from our rejection of the appellant’s primary grounds that there were not failures to make such findings so that this ground also fails.

15                  For these reasons we conclude that the appeal should be dismissed.  The appellant should pay the respondent’s costs on the appeal.    

Associate:

Dated:  17 December 1999