FEDERAL COURT OF AUSTRALIA

Dalpatadu v Minister for Immigration & Multicultural Affairs [2000] FCA 697

SHIVASHA KOSMAPATABENDIGE DALPATADU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 118 OF 2000

KIEFEL, NORTH AND MANSFIELD JJ

26 MAY 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant is to pay the respondent’s cost of the application.

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

REASONS FOR JUDGMENT

1                     This is an appeal against the decision of Whitlam J made on 24 January 2000 in which his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) brought by Shivasha Kosmapatabendige Dalpatadu, the appellant, under s 476 of the Migration Act 1958 (Cth) (the Act).  The decision of the Tribunal was made on 27 May 1999 and it affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse the applicant a protection visa. 

2                     The appellant is a Sri Lankan national of Singhalese ethnicity born on 29 November 1965.  The appellant claimed before the Tribunal that as a result of her relationship with a Tamil who eventually joined the LTTE the appellant was imputed with the political opinion of being a LTTE supporter, and that the appellant’s boyfriend was seeking to harm her because of her refusal to continue their relationship. 

3                     The Tribunal rejected the appellant’s case on the basis that it did not find her a credible witness.  It said at pages 26 – 7 of its decision:

“Whilst the Tribunal is satisfied that the applicant may have had a relationship with a Tamil man until May 1993, it cannot be satisfied that the applicant’s claim regarding her claimed arrest in May 1993 and any of the events thereafter are credible.  The applicant’s claims and evidence in this regard are implausible, contradictory, internally inconsistent and moreover, inconsistent with the independent evidence.

In fact, given the range of inconsistencies between the applicant’s application for a visa in Sri Lanka; her written claims to the Department of Immigration; her interview with the Department of Immigration; and her three hearings with the Tribunal; and the inherent implausibility in her claims and evidence, the Tribunal cannot be satisfied that the applicant has been truthful in her claims and evidence, and cannot be satisfied that she has any claim to have a well founded fear of persecution for a Convention reason.

Specifically, the Tribunal does not accept as credible or plausible:

·        The applicant’s claims and evidence regarding how and why she stopped working at the CTB [Ceylon Transport Board] and claims surrounding her application for a visa to Australia

·        The applicant’s claims and evidence regarding the applicant’s arrest in May 1993 or the existence, or use of a ‘confession’ against her

·        The applicant’s claim and evidence regarding being contacted by her former boyfriend in 1995 and his warning to her

·        The applicant’s claim and evidence regarding her former boyfriend’s approach to her mother, his arrest at her mother’s home, and the resulting on-going interest in the applicant’s mother and interest in the applicant

·        The applicant’s claims and evidence regarding being forced by the authorities to return to Sri Lanka

·        The applicant’s claim and evidence regarding being arrested in November 1995 and being forced to ‘confess’ to supporting the LTTE

·        The applicant’s claims and evidence regarding her former boyfriend’s attempts to locate and harm her.” [emphasis in original]

4                     The Tribunal then gave reasons rejecting the appellant’s claims in respect of each of the matters referred to in the dot points in the passage extracted in the previous paragraph of these reasons.  The Tribunal concluded at pages 33 – 34 as follows:

“Taken as a whole, the Tribunal cannot be satisfied that the applicant has been truthful in her claims and evidence to the Tribunal.  The Tribunal has found the applicant to be completely lacking in credibility in her central claims to be a refugee namely:

·        That as result of her relationship with a Tamil who eventually joined the LTTE, the applicant has been imputed with a political opinion of being an LTTE supporter.

·        That the applicant’s former boyfriend is now seeking to harm her because of her refusal to continue to have a relationship with him.

The Tribunal has found the applicant to be without credibility in other aspects of her claims and evidence namely; the applicant having misled the Australian High Commission in Sri Lanka, the Department of Immigration and the Tribunal in matters relating to why she obtained her visa in the manner she did; the applicant’s arrest in May 1993 or the existence, or use of, a ‘confession’ against her; being contacted by her former boyfriend in 1995 and his warning to her;  her former boyfriend’s approach to her mother, his arrest at her mother’s home, and the resulting on-going interest in the applicant’s mother and interest in the applicant;  being forced by the authorities to return to Sri Lanka;  being arrested in November 1995 and being forced to ‘confess’ to supporting the LTTE.

Given the significant adverse findings in credibility in regard to the matters mentioned above, the Tribunal cannot accept as credible the applicant’s claim that the Sri Lankan authorities have any on-going interest in her whatsoever.

At the conclusion of the hearing (24 February 1999) the Tribunal pointed out to the applicant that there were numerous contradictions in her claims at various stages in the refugee process, and noted the overall implausibility of her claims and their lack of consistency with the independent evidence.  The applicant was given the opportunity to clarify the contradictions regarding the various claims that she has made, and did so through her adviser.  The Tribunal has given careful consideration to these responses, but cannot be satisfied that they have clarified the significant and numerous contradictions and implausibilities in any meaningful way.” [emphasis in orginial]

5                     The appellant argued two grounds of appeal.  Both arguments were rejected by Whitlam J at first instance.  The first ground alleged a failure by the Tribunal to comply with s 430(1)(c) and the second alleged a failure by the Tribunal to comply with s 430(1)(b).  Section 430(1) provides as follows:

“(1)     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.”

6                     The applicant contended that the failure to comply with s 430(1) constituted a failure to observe a procedure within the meaning of s 476(1)(a) of the Act.  This proposition is a matter of contention at present as there are conflicting decisions of Full Courts on the issue.  We will consider this appeal without adding to the debate by assuming in the appellant’s favour that a failure to observe s 430(1) constitutes a failure to observe a procedure within the meaning of s 476(1)(a).

THE FIRST GROUND OF APPEAL

7                     The first ground of appeal was particularised as follows:

“a        The Tribunal failed to make a finding on a material question of fact, namely as to how a Singhalese who formed a relationship with a Tamil would be treated by Singhalese society and the Sri Lankan security forces.”

8                     This ground of appeal raises the question of the meaning of “a material question of fact” in s 430(1)(c).  Mr Karp, who appeared as solicitor for the appellant, relied on a series of decisions including Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 in which the Court found that the Tribunal failed to make a finding on a material question of fact and thereby failed to comply with s 430(1)(c). 

9                     In Muralidharan Sackville J, with whom Davies and Beazley JJ agreed, said at 414:

“… it is not necessary that the reasons deal with all matters raised in the proceedings; it is enough that the findings and reasons deal with the substantial issues on which the case turns.”

10                  The question found to be material in that case was whether the applicant had been detained and tortured on a particular date in 1989.  That issue was described by Sackville J at 415 as “a key element” in the applicant’s case and “the foundation of his contention” that he had a well-founded fear of persecution. 

11                  In Kandiah v Minister for Immigration and Multicultural Affairs [1998] FCA 1145 the applicant, a Sri Lankan Tamil, claimed that he was detained and tortured in an army camp.  He was injured so badly that he was hospitalised in Colombo for over a month.  The Tribunal failed to make a finding on the credibility and authenticity of letters from his treating doctor confirming his treatment.  Finn J found that the authenticity and credibility of the letters were “central to Mr Kandiah’s application”, and that his hospitalisation was a “key element” in his case.  Consequently, the failure to deal with this subject constituted a breach of s 430(1)(c). 

12                  In Logenthiran v Minister for Immigration and Multicultural Affairs [1999] FCA 1691 the Tribunal had failed to deal with two claims of instances of arrest, detention, interrogation and torture.  The Full Court held that this was a breach of s 430(1)(c) having regard to “the obvious relevance” of those claims to the issue of whether the applicant’s fear was well-founded.  In a separate judgment Merkel J added that the question on which the Tribunal failed to make findings was “central”to the applicant’s case.

13                  In Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 the applicant, a Sri Lankan Tamil lawyer, claimed a fear of persecution for reasons of political opinion, namely, association with the LTTE.  Three letters from his wife to him spoke of harassment by the authorities of his family.  The Tribunal did not refer to these letters in the decision.  The Full Court (Spender, North and Merkel JJ) described as “central” to the claim the evidence that the applicant was of interest to the Sri Lankan authorities.  The letters were capable of supporting “in a significant way ‘the factual centrepiece’” of Mr Thevendram’s claim of feared political persecution and thus was a material of fact for the purposes of question s 430(1)(c).  The Court considered that the reference in the letters to harassment of the applicant’s family “had obvious relevance to whether the RRT was satisfied that Mr Thevendram’s claimed fear of persecution was well-founded and was a ‘substantial’ issue on which the case might turn.”

14                  For the purpose of this line of authority, a material question of fact has been seen as one which is:

·        a substantial issue on which the case turns;

·        a key element of the applicant’s case;

·        the foundation of the applicant’s contention;

·        a matter central to the application;

·        a matter having obvious relevance to the question whether the applicant has a fear of persecution;

·        a matter capable of supporting in a significant way the claim of the applicant.

These descriptions, as well as the circumstances in which breach of s 430(1)(c) has been found, demonstrate that the underlying requirement for materiality is that the particular question of fact is closely related to the claimed fear of persecution. 

15                  That necessary close link is lacking in this case.  Mr Karp, the solicitor appearing for the applicant, explained that the significance of the adverse views of the Singhalese community and security forces to a Singhalese woman in a relationship with a Tamil man was contextual.  That is to say, that community view provided a background against which the Tribunal could assess whether the appellant had suffered or would suffer persecution as she claimed.  So explained, the view of the Singhalese community was not central to the appellant’s claim.  It was indirectly related to the establishment of her claims.  It was not a key issue or the foundation of her claims.

16                  Whitlam J held that “on any view” of the meaning of the expression “material question of fact” the Tribunal was not required to make findings about the views held by Singhalese society, but to deal with the claims made by the applicant.  We respectfully agree.  This ground fails.

THE SECOND GROUND OF APPEAL

17                  The second ground of appeal was particularised as follows:

“b        The Tribunal, having indicated to the appellant the issues upon which its assessment of her application turned, and inviting submissions thereon, failed to give reasons as to why it rejected submissions which she made in response.”

18                  This ground of appeal is concerned with submissions made by the appellant’s solicitors in two letters, one dated 24 February 1999 and the other dated 11 May 1999. 

19                  The former letter arose from difficulties expressed by the Tribunal on the second day of the hearing in believing the appellant’s claims regarding the events said to have occurred after May 1993.  The submission attempted to answer the Tribunal’s doubts by setting out some arguments on each of the issues. 

20                  One example illustrates the nature of the submission.  The appellant claimed that her boyfriend had phoned her and told her about a planned bombing in Colombo.  The Tribunal referred to the strict discipline of the LTTE and it observed the consequent unlikelihood of the appellant’s boyfriend giving such an indication.  The submission argued in response that there could be different levels of commitment of LTTE activists, and that the relationship between the appellant and her boyfriend may explain the phone call.

21                  The letter dated 11 May 1999 responded to the Tribunal’s request concerning the contents of two DFAT cables which suggested that a Singhalese person such as the appellant would not be imputed with an LTTE profile.  The submission contended that the evidence given by the applicant in the case should be accepted in preference to the contents of the cables.  The submission also addressed the question of the appellant’s application for a visa to Australia and what she told her work colleagues about her intention to leave Sri Lanka.

22                  The Tribunal set out in detail when and how the requests for the submissions were made.  It also recorded the contents of the submissions.

23                  Then, under the “Findings and Reasons” section of the decision, the Tribunal referred to each of the subjects dealt with by the submission and gave full reasons for its conclusion on each.

24                  In dealing with the subject “The applicant’s claims and evidence regarding how and why she stopped working at the CTB and claims surrounding her application for a visa to Australia” the Tribunal made reference to the submission in the following passage:

“The applicant has not, despite having an opportunity to do so, addressed the central inconsistency – the different information provided to the Department and then the Tribunal, and has failed to give a reasonable explanation for her dishonesty.  It is not simply a case of the applicant providing ‘more detail’ at her hearing, because her claims to the Department, her statement to the Tribunal and her evidence at hearing are factually different”. [emphasis in original]

25                  Then towards the end of the “Findings and Reasons” section the Tribunal referred to the submission dated 24 February 1999 as follows:

“At the conclusion of the hearing (24 February 1999) the Tribunal pointed out to the applicant that there were numerous contradictions in her claims at various stages in the refugee process, and noted the overall implausibility of her claims and their lack of consistency with the independent evidence.  The applicant was given the opportunity to clarify the contradictions regarding the various claims that she has made, and did so through her adviser.  The Tribunal has given careful consideration to these responses, but cannot be satisfied that that [sic] they clarified the significant and numerous contradictions and implausibilities in any meaningful way.” [emphasis in original]

26                  The appellant contended that the Tribunal was bound to give reasons for rejecting each of the arguments advanced in the submissions.  This cannot be accepted.  As Whitlam J pointed out, such an approach misconceives the role of s 430(1)(b).  The rationale for a requirement to give reasons such as is provided in s 430(1)(b) was explained by Sackville J in Muralidharan at 414 as follows:

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

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

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

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

27                  In view of the purpose of the requirement to provide reasons it was not necessary for the Tribunal to deal with every argument raised in the submissions.  The Tribunal amply complied with s 430(1)(b) by recording the submissions made by the appellant, setting out its reasons for conclusion on each subject matter addressed by the submissions, directly referring to the reason for rejecting the submission in relation to one subject, and explaining in general the reason for rejecting the arguments in the submission of 24 February 1999.  The decision of the Tribunal in this case clearly displayed its reasoning and the parties were able to discern the route by which the Tribunal reached his conclusion.  There was no failure of the Tribunal to comply with the requirements of s 430(1)(b).

 CONCLUSION

28                  For the above reasons the appeal will be dismissed with costs.

Associate:

Dated:              26 May 2000