FEDERAL COURT OF AUSTRALIA

Fernando v Minister For Immigration & Multicultural Affairs [2000] FCA 436

IMMIGRATION – application for review of decision of Refugee Review Tribunal – whether Tribunal failed to set out reasons for any material facts – existence of a material fact to be determined in all the circumstances – distinction between a material fact and a mere strand of reasoning in an argument – whether irrationality in setting out reasons provides a ground of review in cases concerned with credit – whether irrationality in determining a jurisdictional fact may take the Tribunal’s decision beyond jurisdiction – whether s 476(2)(b) operates effectively as a privative clause to oust the Federal Court’s jurisdiction in such cases

Migration Act 1958 (Cth), ss 430(1)(b), 430(1)(c), 476(2)(b), 476(1)(g), 476(4), 485

Careem v Minister for Immigration and Multicultural Affairs [1999] 378, cited.

Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (1999) 164 ALR 75, applied.

Emiantor v Minister for Immigration and Multicultural Affairs 48 ALD 635, distinguished.

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547, cited.

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, followed.

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

Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, distinguished.

Sundararaj v Minister for Immigration and Multicultural Affairs [1998] FCA 494, distinguished.

SONALI DINUSHA FERNANDO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 564 of 1999

MADGWICK J

SYDNEY

7 APRIL 2000

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant is to pay the respondent’s costs.

REASONS FOR JUDGMENT

HIS HONOUR:

1                     In this matter Sonali Fernando, the applicant, seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 May 1999 which affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs, the respondent, not to grant her a protection visa.  The Tribunal Member rejected the applicant’s claim because he did not believe any of her central claims.  Among other things it was argued on her behalf that the rejection of one aspect of her evidence was irrational, that this went to a jurisdictional fact and that, accordingly, despite the decision in Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411, this was reviewable under the limited form of judicial review available in this Court.

Background Facts

2                     The applicant is a Sri Lankan woman of Singhalese ethnicity.  She arrived in Australia on 19 April 1996 and on 9 July she lodged an application for a protection visa.  In 1992 and 1995 she had visited her sister in Australia.  Her initial application claimed that she had left Sri Lanka “because of unfair arrest, torture, abduction and death [at] the hands of security officers and the terrorists”, and that she feared that she “would be arrested, tortured, abducted, molested or put to death by the authorities or the terrorist groups” if she returned there.  Her application also claimed that she spoke, but did not read or write Tamil.

3                     In support of her application the applicant submitted a more detailed written statement for the consideration of the respondent’s delegate.  Her claims were that her father had been harassed by government security officers, she had been arrested by the police many times on suspicion of LTTE involvement, and she and her servant were arrested in October 1987 for interrogation with regard to such involvement.  She started to work for a travel agency, Gabo Travels, in 1989, where she claimed she encouraged Tamils to approach her for assistance.  She was interrogated by police in May 1991, arrested again by CID officers (I assume these are security police) and threatened in 1993 because of her association with Vinodan, a Tamil.  In 1995 she feared she might be targeted by police officers, was arrested, questioned and assaulted by police in August 1995, and finally arrested, assaulted, questioned and imprisoned by the CID police in February 1996.  She claimed that she was freed on conditions that she would leave the country.  Central to her application was the claim that “life in Colombo has turned out to be dangerous for any nationals who associate with the Tamils of Sri Lanka.”

4                     Neither in her original application or her April 1996 submission did she express any fear of harm from the manager of the agency.  There was a reference that her manager “had been scheming against me all throughout”.  Amongst various other claims, the applicant put forward the following:

“I … was successful in obtaining a job at Gabo Travels… I joined as a travel assistant and was in charge of the Main counter… Between 1989 and 1991, I came across a lot of Tamils who travelled out of Sri Lanka in order to save their lives from the grips of the LTTE and the government security forces. In order to increase the sales and to develop the business, I encouraged the Tamils to approach me for assistance under any [emergencies]. Most of my father’s students had been leaving the country after the peace talks collapsed in 1990. Through them I became known in the Tamil community …

The General Manager of Gabo Travels is a Tamil known as Shayamala Rastaratnam (who is presently facing a lot of hardship from the security officers.)…

In 1994 I was promoted as an executive and a Supervisor in [the] firm and I was put in charge of handling money and more particularly cash coming in and out of the firm. As time past I found Vinodan [a friend of the applicant] negotiating with the General Manager and … discussing in Tamil [l]anguage in my presence. Though my Tamil relatives spoke English I never was fluent in Tamil language. I started to suspect the General Manager in the due course when I ended up handling [a] huge amount of money in [the] form of cash in the firm. When I put it to the manager and Vinodan they advised me to act ignorant of the above fact. Once I was sent to Thailand for a couple of days during which time Vinodan and the General Manager handled new customers in my absence. I came to know from the subordinates that some LTTE supporters were present at the office…

In August 1995 when Vinodan and I had been in a restaurant on a Saturday night we were taken again by the police to the Wellawatte police station… They accused me [of] dealing with Tamils only and sending the refugees out of Sri Lanka for huge amount[s] of undeclared money. They further said that I was obtaining passports for Tamils illegally and sending them abroad. I complained to the General Manager and she consoled me by way of sending me again on a trip to Australia to see my sister. I believed that she was genuine (but in fact she had been scheming against me all throughout).”

5                     Before the Tribunal the applicant’s solicitor complained in writing that the delegate had ignored various claims made by the applicant:

“The delegate had completely ignored the fact that the Applicant has been harassed and was let down by the General Manager of the firm on whom she relied on and who in turn ruined her life in Sri Lanka. The Delegate failed to see that the Applicant was used by the General Manager (by way of offering foreign trips) and her fiancee Vinodan to expand their illegal business and how the Applicant was let down by them during the investigations. The Applicant was protected by the General Manager and Vinodan from being questioned at the airport and from being suspected or involvement in illegal trade with the LTTE in order to expand their business.

The Applicant fears that the General Manager of Gabo Travels who has been bribing the CID police officers frequently would harm her on her return…

In the present climate the illegal travel trade is continuing involving huge amount[s] of money and the CID officers are scrutinising all the past and the present travel agents and most of the agents who were involved and [have] been suspected of having involvement with the LTTE, are taken for questioning who in turn are subjected to torture. Most of the past employees of the Gabo travels had fled the county before they were arrested by the CID police. Lately, the Applicant came to know some of the Gabo Travels employees who she knows have moved to Australia permanently…

The Applicant had given substantial facts and evidence for the delegate in the original statement of claim. It is obvious from the statement of claim that the Applicant feared torture and harassment [at] the hands of the government security officers and from her past employees and her fiancee if she gets back to Sri Lanka.”

6                     At the hearing before the Tribunal, the applicant and Tribunal member engaged in the following discussion:

“Q.      Tell me Ms Fernando, what do you think will happen to you if you go back to Sri Lanka.

A.                 If I go they will kill me. The place where I worked, because there was damage –

Q.                Who will kill you.

A.                He will take revenge because there was a lot of involvement with the LTTE movement.

Q.                Who is ‘he.’ You said you will be killed. I am asking you to identify who will kill you.

A.                The manager who was attached to that place

Q.                Why will he kill you.

A.                 I was the only person who was aware of their underhand secret activities and I was dealing with their travel matters.

Q.                 What underhand activities.

A.                  They are made lot of forged illegal passport.

Q.                 What is the connection between you being aware of their illegal dealings and the manager wanting to kill you.

A.                  What finally happened in ’96 the bomb exploded in the Central Bank [this is a reference to an act of LTTE (“Tamil Tigers”) terrorism].  Thereafter as I had fear of going to work I was in hiding, moving from one place to another.

Q.                 What were you in hiding from.

A.                  I was a friend of a Tamil sub agent who used to come there.

…

A.                  I was hiding from my workplace boss who was trying to hand me over to CID.

                        …

Q.                 Why would he hand you over to the CID.

A.         Well because he accused that I help the LTTE while I was in friendly terms with this person.

                        …

Q.                 So you can speak Tamil can you.

A.                  About two or three words only.

Q.                 It must have been a struggle doing those classes that were conducted in Tamil then if you can only speak two or three words.

A.                  I learned how. I was in a school where there were classes that had instructions in these languages.

Q.                 But you did not speak Tamil.

A.                  I know only two or three words. I know how to say ‘Good morning,’ yes.

Q.                … I have got to say it is a bit doubtful that anybody has a terribly close connection with the Tamil community who is 28 years of age and can speak only two or three words of Tamil.

A.                Well they are capable of speaking Sinhalese and English, some of them, a little bit.

…

Q.                So far you have kept telling me that you were in fear of harm from this fellow, this Tamil manager of the travel business and yet you have been unable to make me understand why it is that he wants to harm you and what form that harm will take.

A.         Because I as aware of all underhand secret work that was going on there.

            …

Q.                I am still trying to find out why this manager believes, why this manager wants to harm you and you are failing to help me understand that.

A.                They are in fear that I will reveal their activities to police.

Q.                Why would they fear that.

A.                They never told me, I felt that they were involved in a lot of secret activities.

Q.                Earlier on you told me that this Tamil manager was going to hand you over to the CID because he thought you were helping the LTTE. Now you tell me that the manager is working hand in glove with the LTTE doing illegal stuff and they are going to tell on them.

A.                 That’s what I am telling you.

Q.                I cannot believe that.

A.                 The manager was the person who was behind and he was getting all these things done.

Q.                Which is right. Before you told me he was going to accuse you of helping the LTTE. Now you tell me he was going to accuse you of helping the LTTE, so why is he going to accuse you.

A.                 Well I said that these persons are the ones who got things done through me.

Q.                This is just not making me understand at all. At the moment all I can say is that your evidence is terribly unconvincing. It is riddled with inconsistencies… I think I will give you a chance to chat to your adviser, because at the moment I am not satisfied that anything you tell me is true...

WITNESS STOOD DOWN

…

TRIBUNAL RESUMED

…

Q.                I can see absolutely no basis for concluding that whatever the police have done, they have done so because they believe the applicant is assisting the LTTE. There is no basis to come to that conclusion.

A.                [Adviser] The reason is the manager –

Q.                Why would a young Sinhalese women be supporting the LTTE. It is just ludicrous.

A.                [Adviser] As I understood from the applicant she has not helped the LTTE at all.

Q.                Why would anyone think that she was?

A         [Adviser] Because of the Manager who is involved in the LTTE.”

No further mention of the Manager was made during the interview.

7                     In its reasons for deciding to reject the application, the Tribunal said:

“CLAIMS AND EVIDENCE

…

The Applicant believes that she will be arrested if she returns to Sri Lanka. She will probably be harmed again [by the authorities]. Alternatively BBBB [the General Manager] may harm her for informing on [her] pro-LTTE activities.

The Applicant was asked to explain how it is that BBBB had accused her of pro-LTTE activities and yet he would suspect her of informing on him. No sensible or credible response was forthcoming…

The Tribunal put to the Applicant that her story was fanciful. She could speak virtually no Tamil. This was extraordinary given her claim to long involvement with Tamils, working with them, and support for them. This was central to her claim because she gave this involvement as the reason she would be suspected of assisting the LTTE. In addition her claims were riddled with improbabilities…

FINDINGS

The Tribunal is not satisfied that the Applicant was a truthful witness. In particular, the Tribunal is not satisfied that the Applicant had any significant involvement with Tamils in Sri Lanka.

The Tribunal is not satisfied that the Applicant has close friends or relatives who are Tamil, or that she did any appreciable amount of business with Tamils, or that she had a close long-term relationship with CCCC, a young Tamil.  If any of this were true the Applicant would have developed at least some facility in the Tamil language.

The Tribunal notes that the Applicant passed here school examinations in English and has further developed her skills here.  The Tribunal does not accept that she was incapable of learning any Tamil, or that she could have had the wide range of contacts with Tamils which she claims, without picking up more of their language.

The Tribunal considers that it is inconceivable that she could have done all the business with Tamils which she claims without speaking any Tamil.  It is improbable that she could have encouraged Tamils to approach her for assistance without speaking any Tamil.  It is inconceivable that she could have been close friends with CCCC, a young Tamil man, without learning to speak any more of his language than hello or good morning.

The Tribunal considers this to be central to the Applicant’s application.  It is her claim to a long association with Tamils which is the reason she gives for the police suspicion of her as an LTTE supporter or sympathiser.  It is that which she claims led to her arrests.  It was the reason why the neighbours suspect her of assisting the LTTE.  It was the reason why the police would believe that it was the Applicant and not the Tamil manager who was assisting the LTTE militants to depart Sri Lanka.

Without the applicant’s claimed long involvement with Tamils, her claims about past arrests and harm because of that involvement become incredible.  Without that claimed involvement there was no reason for the Sri Lankan authorities to suspect her of supporting the LTTE, or to arrest her on suspicion of such support.  It is inconceivable that the Sri Lankan authorities would suspect a Singhalese woman who does not speak any Tamil of being an LTTE supporter.

The Tribunal is not satisfied that the Applicant has been suspected of assisting the LTTE by anyone, or that she has been arrested and harmed on suspicion of assisting the LTTE or Tamils.

In addition the Tribunal considers that it is highly improbable that the Sri Lankan police would continue to release someone who they suspected of assisting the LTTE. It is equally improbable that the police would continue to allow such a suspect to travel in and out of Sri Lanka at will, on her own passport.

For all these reasons, and having had the benefit of observing the Applicant give evidence, the Tribunal is not satisfied that the Applicant had any close involvement with Tamils in Sri Lanka.  The Tribunal is not satisfied that the Applicant did any significant amount of business with Tamils, nor that she came under suspicion of assisting the LTTE, nor that she was arrested on any such suspicion.  The Tribunal is not satisfied that the Applicant has suffered persecution for reasons of her political opinion.

It follows that the Tribunal is not satisfied, on the evidence available, that the Applicant is at risk of arrest and detention, or any form of persecution, should she return to Sri Lanka.

The Tribunal is not satisfied that the Applicant has a well-founded fear of persecution should she return to Sri Lanka.”

Material question of fact

8                     The applicant submitted that the Tribunal had failed adequately to address her claim that she would be harmed by the Manager if she were to return to Sri Lanka.  In particular it was said that, from the material that she had presented to the Tribunal, in both oral and written form, there were two facts, critical to her case, that the Tribunal member did not adequately address in his written reasons.  Those two facts it was suggested were:

“(1)     Whether or not the Manager of Gabo travel was involved in making illegal travel arrangements for the LTTE.

 (2)      Whether the Manager knew that the applicant knew about it.”

(It is assumed for the purposes of considering this, and other, submissions based on s 430 of the Migration Act 1958 (Cth) (“the Act”), that the decision of Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681 ought to be preferred over the reasoning in Xu v Minister for Immigration & Multicultural Affairs [1999] FCA 1741).

9                     Section 430(1)(c) requires the Tribunal to prepare a written statement that “sets out the findings on any material question of fact”.  The Tribunal did not set out any findings with respect to the prospect of the applicant suffering harm at the hands of the Manager.  The applicant submitted that it is not open to the Tribunal to simply reject the applicant’s case on grounds of credibility, it must also address the material questions of fact raised by the applicant:  see Sundararaj v Minister for Immigration and Multicultural Affairs [1998] FCA 494 and Emiantor v Minister for Immigration and Multicultural Affairs 48 ALD 635. 

10                  However, the preliminary question arises, whether or not the facts asserted by the applicant relating to the Manager may be considered to be material facts.  The existence of a material fact is to be judged in the light of all the circumstances relating to the claim put forward by a party, or in the case of the Tribunal, an applicant.  The case put by the applicant before the Tribunal, in relation to harm that she may suffer from the Manager, was twofold.  It was suggested that she may suffer harm at the hands of the manager either by the Manager informing the authorities of her activities (the authorities would then persecute the applicant for her association with the LTTE), or alternatively, she would suffer direct harm from the Manager in order to prevent her informing the authorities of the Manager’s involvement with the LTTE.

11                  The former of these claims was adequately dealt with by the Tribunal’s findings that  (a) the applicant did not have sufficiently close connections with the Tamil community, including by way of the travel agency’s business, to be at risk of being considered by the Sri Lankan authorities to be an associate of LTTE members and (b) the implicit rejection of her claim that “the police would believe that it was the Applicant and not the Tamil manager who was assisting the LTTE militants to depart Sri Lanka”.  Thus, even were the manager to inform on the applicant to the authorities, she would face no fear of persecution by them.  Considerations as to whether or not the Manager was involved in making illegal travel arrangements for the LTTE, and whether the Manager knew that the applicant knew about this were therefore not material to this aspect of the applicant’s claim.

12                  The suggested material facts do, however, appear to be relevant to a consideration of the applicant’s second claim, that the Manager might harm her in order to prevent her informing the authorities of the business operations.  Yet, it is not clear that it was necessary for the Tribunal to consider the applicant’s second claim.  As noted by the Tribunal member in his reasons:

“The Applicant was asked to explain how it is that BBBB had accused her of pro-LTTE activities and yet he would suspect her of informing on him. No sensible or credible response was forthcoming.”

13                  The two claims apparently presented an internal inconsistency in the applicant’s case.  It was suggested by counsel for the applicant that the applicant’s alternative claims were capable of standing together.  If, for example, the Tribunal had considered that the Manager intended to malign the applicant before the authorities in order to deflect attention from the Manager’s own illegal activities, it is conceivable that the applicant’s claims may not have contradicted one another.  However, despite being granted ample opportunity to do so, the applicant offered no such explanation before the Tribunal.  Although the inquisitorial nature of the Tribunal may oblige it, in some cases, to examine claims that may not be explicitly stated but that nevertheless inherently form part of an applicant’s case, the evidence before the Tribunal on this occasion could not, in the light of the Tribunal’s express conclusions, present material to suggest a reasonable prospect that the applicant might be persecuted.  Therefore, the facts suggested by the applicant to be material, were not germane to any claim arising from the evidence before the Tribunal.

14                  This issue was dealt with by Merkel J in the Full Court decision of Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, at 56 – 57:

“In general, an administrative tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration … and is entitled to have regard to the case put.  However, ultimately the RRT is under a duty to fulfil its statutory obligation to 'review the decision' before it … Unlike an adversarial proceeding, parties do not appear and put a case, as such, to the RRT.  As stated above, the RRT is required to determine whether it is 'satisfied' that the applicant is a person to whom Australia has protection obligations under the Convention.

Material and evidence, as well as arguments, may be presented to the RRT but its inquisitorial procedures or enquiries are not limited to or by the materials, evidence, or arguments presented to it.  In an appropriate case the RRT may undertake its own enquiries and, in some instances, may be obliged to do so. … Similarly, the RRT is not to limit its determination to the 'case’ articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant…

In my view the inquisitorial function of the RRT and the combined effect of the provisions to which I have referred, is such that the RRT is required to determine the substantive issues raised by the material and evidence before it.  That duty, which was recognised by Brennan J in Bushell, is a fundamental incident of the inquisitorial function of an administrative tribunal such as the RRT.”

15                  This passage was quoted with approval by the Full Court in the decision of Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, however, an important limitation was also noted at para [24]:

“We should emphasise that our conclusions depend on the circumstances of this case.  In many other cases the sole substantial basis for judging whether a person falls within the Convention criteria for a ‘refugee’ will be the information as to his/her supposed history and background furnished by an applicant.  Upon legally proper rejection of the credibility of an applicant in such a case, there will be no basis for requiring that the RRT do more than forthwith reject the claim for refugee status.”

16                  This case was such an instance.  The material before the Tribunal raised no claim such as that now argued.  Section 430 imposes no obligation on the Tribunal to deal with matters that may have arisen before it but did not.  The Court should not be quick to entertain criticism of the Tribunal on the ground that the evidence before it could be reconstructed, after the Tribunal’s decision, so as to give it a new complexion that was not in truth reasonably apparent before the Tribunal.

17                  The foregoing discussion proceeds on the assumption that any police interest in the applicant, if it were believed, on misinformation by an informer that she had assisted the LTTE would be of relevance under the Convention.  The assumption is not, however, in the circumstances of this case, a valid one.  It would certainly be a criminal act in Sri Lanka to assist the insurgent LTTE.  However, to be investigated or arrested by police, because they had false information from someone who might be expected to have actual knowledge of particular facts, does not of itself bespeak a Convention reason.  Other facts were rejected by the Tribunal which might possibly have given a fear of such police activity a Convention flavour.

Material questions of fact relating to credit

18                  The applicant next claimed that the Tribunal had breached s 430(1)(c) of the Act by failing to set out its findings on the material facts underpinning its adverse conclusions as to the applicant’s credit.  It was submitted that the Tribunal’s finding on credit was based upon its conclusion that, despite claiming to have a close association with Tamils, the applicant could not speak the Tamil language.  Indeed, so it was put, the member stated in his reasons, that “[t]he Tribunal considers this to be central to the Applicant’s application.”  Thus, according to the applicant’s understanding of the Tribunal’s reasons, the fact that the applicant could not speak Tamil was material.  It was submitted that the Tribunal did not set out its findings on this fact because it did not address the applicant’s claim, found in the transcript, that the Tamils that she associated with spoke English or Singhalese.

19                  However this view of the Tribunal’s reasons is, in my opinion, incorrect.  The Tribunal was not, in the relevant passage, speaking of the inability of the applicant to speak Tamil as being “central” to the application but of her claim to long and close association with Tamils.  Further, on a beneficial reading of the Tribunal’s reasons, it becomes apparent that the finding as to credit based on lack of ability to speak the Tamil language, although important, was but one strand in the Tribunal’s reasoning rather than a “material fact”.  The material fact was whether the applicant had such an association with Tamils.  The Tribunal did not believe her claim.  There were several matters that led to the Tribunal’s adverse finding of credit.  These included:

·        The Tribunal member’s assessment of the applicant’s demeanour whilst giving evidence.

·        The improbability that any person suspected of involvement with the LTTE would be permitted to travel in and out of Sri Lanka with the frequency with which the applicant had between 1992 and 1996.

·        That it was “inconceivable” that a Singhalese woman who spoke no Tamil would be suspected of being an LTTE supporter.  In this regard, it is worthy of note that the independent country information before the Tribunal stated that “apart from a Sinhalese collaborating with the LTTE for illegal financial gain, it is utterly implausible that a Sinhalese would support the LTTE” and “it is almost unheard of that a Sinhalese person would assist the LTTE or be approached to assist the LTTE, particularly in Colombo”.

·        “In addition her claims were riddled with improbabilities.”  This claim is borne out by an examination of the transcript.

·        The improbability that the applicant had a close association with many Tamils and yet could not herself speak more than a few words of Tamil.

No error has in my view been demonstrated under s 430 of the Act.

No evidence

20                  A further ground raised by the applicant was that, given the claims put forward to the Tribunal as to why the Sri Lankan authorities might arrest the applicant on suspicion of supporting the LTTE, there was no evidence to support the Tribunal’s view that:

“Without that claimed involvement [with Tamils] there was no reason for Sri Lankan authorities to suspect her of supporting the LTTE, or to arrest her on suspicion of such support.”

This was said to breach s 476(1)(g) of the Act which provides: 

“Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

…

(g)               that there was no evidence or other material to justify the making of the decision.”

21                  That is to be read in conjunction with s 476(4) which provides:

“The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)               the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)               the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

22                  Whatever the precise reach of these provisions, the foregoing discussion disposes of this submission, since it is clear that there was abundant evidence before the Tribunal to indicate that the Sri Lankan authorities would have no interest in the applicant, absent her claimed association with Tamils. 

Unreasonableness within jurisdiction

23                  It was submitted that the Tribunal had breached s 430(1)(b) of the Act, which requires the Tribunal to set out “the reasons for the decision”, because the Tribunal had failed to present a rational explanation for the adverse inference that the Tribunal drew as to the applicant’s credibility from the fact that she could not speak Tamil.  The applicant sought to distinguish the decision in Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, which held, at 422, that a “want of logic in drawing an inference will not of itself constitute error of law”.  It was submitted that whereas a non sequitur in determining the primary facts of a matter would not be reviewable, such an illogical step in the Tribunal’s reasoning ought to be reviewable if made in coming to a conclusion on credit.

24                  The applicant relied upon the decision of Careem v Minister for Immigration and Multicultural Affairs [1999] 378 to support this distinction.  However, this decision does not support such a proposition.  In Careem the Court discussed the prior decision of Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547, in which the Full Court focused upon the manner in which the Tribunal ought to approach decisions raising an applicant’s credit:

“We accept that refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia. Ordinarily, the knowledge and experience of members of the RRT may be expected to ensure that they are sensitive to these special considerations…

Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency.”

25                  Neither case establishes a separate rule for illogicality or irrationality in cases of credit as distinct from substantive issues and it would be bizarre if there were any such rule.

Unreasonableness beyond jurisdiction

26                  Finally, the applicant submitted that there is a distinction between an error of irrationality made with regard to a matter within the Tribunal’s jurisdiction and one that goes to establishing a jurisdictional fact, which would put the Tribunal beyond its jurisdiction under the Act.  It was submitted that the Tribunal’s satisfaction (or the lack of it) that an applicant qualified for refugee status was the relevant jurisdictional fact established by s 65 of the Act.  If the Tribunal’s lack of satisfaction was not supported by some probative material or logical grounds then, in forming a conclusion that such satisfaction was lacking, the Tribunal had committed a jurisdictional error.  The respondent did not contest the distinction in principle, and it appears to have been lent support by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at para [130] (I assume the law to be as stated by Gummow J although, as I understand it, his remarks were, strictly understood, obiter dicta).

27                  The applicant contended that in this case the Tribunal’s lack of satisfaction was based solely on its finding of credit, and that that credit finding was based on what was said to be the entirely illogical ground that the applicant could not speak Tamil.  Therefore, it was argued, the Tribunal had fallen into jurisdictional error. 

28                  There is, however, a number of answers to the submission.  In the first place, as Einfeld J noted in AAA v Minister for Immigration & Multicultural Affairs [1999] FCA 1699, Gummow J was speaking in the context of the High Court’s original jurisdiction, entrenched by s 75(v) of the Constitution, to afford relief against Commonwealth officers for excess of their statutory jurisdiction.  By contrast, ss 476(2)(b) and 485 of the Migration Act effectively limit the jurisdiction of this Court.  Section 476(2)(b) provides:

“The following are not grounds upon which an application may be made under subsection (1):

…

(b)              that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.”

29                  As Gummow J indicates, at para [145], adopting the formulation of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118 – 119, the question is whether the decision “appears so unreasonable that no reasonable authority could properly have arrived at it”.  But s 476(2) specifically excludes this as a ground upon which an application may be made to this Court.  Subsection (2) of course applies to all of the grounds of review listed in subs (1). The grounds excluded by subs (2) are plainly intended to have been excluded notwithstanding that, in particular cases, a ground caught by subs (2) might also be accurately framed as one of the grounds nominated in subs (1).  In this respect, subs (2) is in marked contrast to subs (3) and subs (4).

30                  It makes no difference that the decision turned upon a power to arrive at a jurisdictional fact.  Parliament may, in general, by a suitably framed law, validly exclude from judicial review, other than a constitutionally granted power of judicial review, non-Constitutional “jurisdictional facts”:  see Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (1999) 164 ALR 75.  While privative clauses should be jealously construed, it is clear from the terms of s 476(2)(a) and (b) that judicial review by the Federal Court on the grounds of natural justice or unreasonableness is not available.  A denial of natural justice would ordinarily be a jurisdictional error.  It would be strange if the supposed unreasonableness, going to a jurisdictional fact, but not natural justice, was outside the exclusion for review affected by subs (2).

31                  In any case, on close analysis, there is as a matter of fact no irrationality or absence of a logical basis for the Tribunal’s view such as would invite a Court’s intervention, even if jurisdiction did exist.  The Tribunal is to be regarded as an expert Tribunal:  Eshetu per Gummow J para [140].  The Tribunal, as a matter of practice, arranges that its Members concentrate on the cases of applicants from particular geographic areas for significant periods of time.  Thus the Tribunal was entitled to, and did here, take into account its own experience in dealing with Sri Lankan asylum seekers:

“I sit here though and hear it from a lot of people who are Tamils who tell me they get into trouble from Colombo because of their inability to speak Singhalese immediately marks them out as not being Singhalese.”

32                  The inference is that many Tamils do not speak Singhalese and that, if they do not speak the national language, they are unlikely to speak English.  Hence it is not irrational or illogical to take the view that, to have had long and close associations with numbers of Tamils, it is very likely that, as the applicant originally claimed of herself, a Singhalese would speak the Tamil language to a significant degree.

Disposition

33                  For these reasons the application is dismissed and the applicant is to pay the respondent’s costs.

Associate:

Dated:              7 April 2000