FEDERAL COURT OF AUSTRALIA

Gamaethige v Minister for Immigration & Multicultural Affairs

[2000] FCA 1025

MIGRATION – Migration Act 1958 (Cth) s 476 –application for a protection visa – actual bias – whether failure to adequately consider evidence in favour of the applicant indicates actual bias – finding made against the applicant on the basis of credibility – distinction between errors due to bias and errors due to lack of competence

Migration Act 1958 (Cth)

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

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, cited

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, cited

Jia Le Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951, applied

Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (FC), considered

Yit v Minister for Immigration and Multicultural Affairs [2000] FCA 885, cited

Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125, cited

ROHAN KAPILA GAMAETHIGE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1234 of 1999

BRANSON J

SYDNEY

2 AUGUST 2000

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal be affirmed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant has sought review by the Court pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) of a decision of the Refugee Review Tribunal (“the Tribunal”) of 30 September 1999.  By its decision the Tribunal affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa.

2                     The applicant arrived in Australia on 19 March 1995 on a visitors visa.  He subsequently obtained a Class 435 [Temporary Resident] visa which was extended on two occasions.  On 25 June 1997 he applied for a protection visa.  On 29 July 1997 a delegate of the respondent refused to grant the applicant a protection visa.  It is this decision which was affirmed by the Tribunal on 30 September 1999.

3                     The application filed by the applicant advances four grounds of review.  First, that the decision of the Tribunal involved an error of law, being an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal in that the Tribunal failed to consider all claims arising on the evidence and material before it (s 476(1)(e)).  Secondly, that the Tribunal failed to observe procedures required by s 430 of the Act to be observed (s 476(1)(a)).  Thirdly, that the decision was not authorised by the Act in that the Tribunal failed to consider an aspect of the applicant’s claims (s 476(1)(c)).  Fourthly, that the decision of the Tribunal was induced or affected by actual bias (s 476(1)(f)).

THE APPLICANT’S CLAIMS

4                     The applicant is a Singhalese citizen of Sri Lanka.  He claims to come from a wealthy Buddhist family.  He was 27 years old at the time of the decision of the Tribunal.

5                     The applicant claims that while he was doing a two-year cooking course in Colombo he befriended two young men whom he knew as “Ravi” and “Babu”.  The two young men spoke Singhalese with a Colombo accent.  He did not know at that time that they were Tamils from the north of Sri Lanka.  As the two young men were unhappy with their accommodation he arranged for them to stay with him in his parents’ home.  On 30 August 1994 the police surrounded his home and took him and Ravi and Babu into custody.  While in police custody he was not tortured but, after being transferred to Army Headquarters in Colombo Fort, he was routinely tortured.  He claims to have been assaulted in a number of different ways and to have had the teeth in his upper jaw knocked out.

6                     The applicant said that he was released from detention on 1 December 1994 following the intervention of a Buddhist priest, a high ranking officer and his father and placed on reporting conditions.  He fled Sri Lanka in March 1995.  He claims to have been informed in 1997 that two weeks after his escape from Sri Lanka his family was taken into custody and did not return home.  He concluded that they had been killed by the army.

THE TRIBUNAL’S REASONS

7                     The Tribunal found that the applicant’s claims “were exaggerated, far-fetched and implausible and therefore lacking in credibility.”  The Tribunal said that because of the applicant’s lack of credibility “the Tribunal cannot be satisfied that there is any real chance of the applicant being harmed for a Convention reason in Sri Lanka in the foreseeable future.”

8                     The Tribunal was not satisfied that the applicant ever had the two Tamil friends that he claimed, that he was ever physically mistreated in detention or that he has ever been imputed with a political opinion.

9                     The Tribunal observed that the applicant’s claims were inconsistent with the independent evidence before it.

CONSIDERATION

10                  The applicant contended that the Tribunal failed to address the real case put forward by him which was that he was accused of assisting the LTTE (Liberation Tigers of Tamil Eelam) and thereby betraying his country and his race.  It was argued that the Tribunal was wrong to describe the applicant’s claim as a claim that he was imputed with a LTTE profile because he gave accommodation to Tamils.  It seems to me that the distinction sought to be drawn by the applicant is, having regard to the factual basis of the applicant’s claim, a purely semantic one.  However the applicant’s claim is best described, it was based on specified events which he asserted took place within a contained period of time.  The Tribunal concluded that the events did not take place.  That is, the Tribunal concluded that the applicant’s story was a fabrication.

11                  The conclusion of the Tribunal would have been relatively unexceptionable had the applicant not called evidence before the Tribunal which tended to support his factual claims in material respects.

12                  Mr Lalanantha Kadigamuwa gave evidence before the Tribunal.  He said that he was a former flight engineer for the Sri Lanka Airforce based in Ratmalana.  He said that he first heard about the applicant in November 1994 when he was approached by a Buddhist monk and asked to assist in obtaining his release from detention.  He said that the monk told him that the applicant had been arrested because he gave residence to LTTE suspects.  Mr Kadigamuwa said that he found out that the applicant was being held in Colombo Fort Army Camp.  He spoke to his commanding officer and his commanding officer used his influence to have the applicant released.

13                  Mr Kadigamuwa said that he went to the army camp with his commanding officer, the Buddhist monk and the applicant’s father and the applicant was released.  He said that when released the applicant could not walk properly, his face was damaged, he had no teeth and his lips were damaged.  Mr Kadigamuwa said that he did not see the applicant again.  A guard told him that the applicant had been arrested for assisting the LTTE and another guard told him that the applicant had been arrested for giving residence to the LTTE.

14                  Mr Kadigamuwa said that he had learned that the applicant was in Australia after speaking with a friend called Ranjith.  He said that he had not spoken directly to the applicant.  The reasons of the Tribunal record that the applicant told the Tribunal that he knew nothing about Mr Kadigamuwa and had only learned of his being in Australia from a friend called Ranjith.  The reasons of the Tribunal do not suggest that either Mr Kadigamuwa or the applicant was challenged on these aspects of their evidence.

15                  A medical report dated 28 June 1999 signed by Dr R Karalasingham was provided to the Tribunal.  The report discloses that the applicant underwent surgery in April 1997 for right inguinal hernia.  The medical practitioner reported that he found it hard to attribute the hernia to any cause other than severe trauma, such as being hit by rifle butts.

16                  A report from the applicant’s dentist in Sri Lanka was also placed before the Tribunal.  This report discloses that the applicant received dental treatment on 10 December 1994 (ie nine days after he claims to have been released from detention).  The body of the report reads as follows:

“The above named patient was presented to me with fracture of 321/123 and mobile posteriors .# mandible maxilla ?  Bleeding from nose and smell of a chemical was observed.

He was restless and noted psychological depression . Post traumatic stress disorder ?  He had wounded and swollen hands reddish eyes and swelling in lips.

O.P.G. revealed no # of mandible and maxilla.  Extraction of fractured and loosened 321/123 was performed, and treated with antibiotics and left him on liquid diet. Advised complete rest.

Injuries of this nature could be a result of an assault and this report was issued at the request of Mr. Paul Fergus of level 3, 16-22 Wentworth Avenue, Sydney, NSW 2010 on this day of 30^th June 1999.”

17                  The Tribunal gave no weight to the evidence of Mr Kadigamuwa or to the medical or dental reports.  The approach which it took to this material is explained in the following passage from its reasons for decision:

“In light of the Tribunal’s findings above that the applicant thoroughly lacks credibility, and its findings that the applicant has misled the Tribunal in regard to his claims to fear harm by the Sri Lankan authorities, it cannot be satisfied with the corroborating evidence given by the applicant’s witness, and gives no weight to this evidence.

In regard to the letter from Dr Dissanayake, the applicant’s dentist (30 June 1999), the Tribunal notes that the applicant’s dentist stated that the applicant is ‘restless’ and had ‘psychological depression’ and was ‘suffering from post traumatic stress disorder.’  There is nothing to suggest that the applicant’s dentist has any training or qualification to make such findings.  And while the dentist states that the injuries she observed ‘could be the result of an assault’ she is unable to suggest the nature or circumstances of any assault.  In light of the applicant’s dentist being wholly unqualified to make findings on the applicant’s psychological state the Tribunal cannot give weight to her comments in this regard. And in light of the dentist’s ambiguous statement about how any injuries to the applicant were sustained, the Tribunal cannot be satisfied that these injuries were sustained for a Convention related reason.

The Tribunal cannot give weight to the report from Dr Karalasingham, because the doctor is relying on the applicant’s assertions as to how the hernia was sustained, and the Tribunal has found above that the applicant is not credible and cannot be satisfied that the applicant was ever detained or physically mistreated by the Sri Lankan authorities.”

18                  It seems plain from the above passage from the Tribunal’s reasons that the Tribunal did not seek to make an assessment of the applicant’s credibility having regard to all of the evidence and other material before it.  Rather, the Tribunal made an adverse assessment of the applicant’s credibility and then turned to consider the evidence of Mr Kadigamuwa and the medical and dental reports concerning the applicant.

19                  The reasons of the Tribunal record that, because of findings already made by the Tribunal as to the applicant’s credibility, it “cannot be satisfied with the corroborating evidence given by the applicant’s witness”.  It is not clear what the Tribunal meant to convey by this statement.  It was theoretically open to the Tribunal to find that Mr Kadigamuwa told it the truth, told it a story which was wholly untrue or told it a story which was in part true and in part false.  To the extent that the Tribunal may have found that the story told by Mr Kadigamuwa was untrue, it was open to it to find that Mr Kadigamuwa had deliberately sought to mislead the Tribunal or that he had somehow been mistaken in his evidence.  It seems that the Tribunal did not evaluate these alternatives or consider their respective relevance so far as the credibility of the applicant was concerned.  Given the apparent unlikelihood of the applicant and Mr Kadigamuwa having tailored their respective stories to achieve consistency between them, the evidence of Mr Kadigamuwa was capable of being strongly supportive of the story told by the applicant.

20                  It seems that the Tribunal did accept that the applicant had suffered a hernia and the physical injuries reported by his former dentist.  Yet the reasons of the Tribunal do not suggest that the Tribunal took these injuries into account as factors capable of providing support for the story told by the applicant.  As the Tribunal was not satisfied that the applicant was ever mistreated in detention, it is to be assumed that the Tribunal must have concluded that he came to physical harm some other way – but no basis for this conclusion is made apparent by the Tribunal’s reasons.

21                  I have grave reservations about the integrity of the fact-finding process engaged in by the Tribunal in this case.  However, the decision of the Tribunal is only open to review by this Court on one of the grounds specified in s 476(1) of the Act.  For the reason given in para 10 above, this was not a case, in my view, in which the Tribunal constructively failed to exercise its jurisdiction by failing to apply itself to all of the substantial matters which might bear on whether the applicant meets the Convention requirements of a refugee (cf Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 per Wilcox and Madgwick JJ at para 21).  Nor do I think that it can be said that the Tribunal only nominally exercised its jurisdiction (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 per Kirby J at pp 594-595).  The applicant advanced only one basis for his belief that he would suffer persecution if required to return to Sri Lanka.  That basis was the Ravi and Babu incident.  The Tribunal did consider the applicant’s claims concerning the Ravi and Babu incident but disbelieved them.  It has not, in my view, been established that the decision of the Tribunal involved an error of law within the meaning of s 476(1)(e) of the Act or that the decision of the Tribunal was not authorised by the Act (s 476(1)(c)).

22                  This is a case in which the logical processes by which the Tribunal apparently assessed the evidence before it are open to serious question.  However, it is not open to this Court to review the decision of the Tribunal on the merits.  Nor is it an allowable ground of review before this Court that a breach of natural justice occurred in connection with the making of the decision, or that the decision of the Tribunal involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power (s 476(2)) or that the decision of the Tribunal was an improper exercise of the power conferred on the Tribunal in that it failed to take into account a relevant consideration (s 476(3)).

23                  It was contended by the applicant at hearing that the Tribunal had failed to observe procedures required by s 430(1) of the Act to be observed.  Section 430(1) provides as follows:

“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.”

24                  Delivery of judgment in this case was delayed pending the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 (Black CJ, Keifel, Sundberg, Katz and Hely JJ).  The applicant filed, with leave, supplementary written submissions after the publication of the reasons for judgment of the Full Court in Singh’s case.  As I understand the applicant’s supplementary written submissions, he concedes that the decision of the Full Court precludes reliance by him before me on s 430(1) of the Act.  This concession is, in my view, rightly made.  The reasons of the Tribunal reveal that its decision was entirely dependent on its failure to believe the story advanced by the applicant.  That is, the reason that the Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason in Sri Lanka was because it did not believe the story advanced by the applicant as the only basis for his fear.  The reasons of the Tribunal do set out its decision, its actual reasons for coming to that decision, its findings on the questions of fact material to its decision and the evidence and other material on which its findings were based.  The majority of the Full Court in Singh’s case has held that s 430(1) of the Act does not require that the reasons of the Tribunal reveal why evidence tending to undermine the Tribunal’s findings of material fact was rejected or given limited weight (Black CJ, Sundberg, Katz and Hely JJ at para 46).  Their Honours have also made it plain that “[s]ection 430 does not impose any obligation on the RRT to come to a correct decision, or to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached” (Singh’s case para 44).

25                  It remains to consider whether the decision of the Tribunal was induced or affected by actual bias.  This aspect of the application has caused me considerable disquiet.  As is mentioned above, the reasons of the Tribunal indicate that the Tribunal approached the task of assessing the evidence before it, and particularly the evidence given by the applicant, in a way which gives rise to doubt as to whether the applicant received a fair hearing.  There was material before the Tribunal upon which the Tribunal was entitled to rely which raised for consideration the issue of the applicant’s credibility.  The reasons of the Tribunal do not satisfactorily explain how, if at all, it reconciled the evidence given by Mr Kadigamuwa, and the medical and dental report placed before it, with its rejection of the story told by the applicant.

26                  A finding of actual bias is not lightly to be made.  As Burchett J pointed out in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (FC) at 126 actual bias, like any other conclusion of fact, may be established as an inference from the circumstances.  However, actual bias is something different from “mere error or even wrongheadedness, whether in law, logic, or approach” (Sun’s case per Burchett J at 127).

27                  Sackville J has recently reviewed the authorities on actual bias in Yit v Minister for Immigration and Multicultural Affairs [2000] FCA 885.  His Honour endorsed Drummond J’s summary of their effect in Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125 at 133-134:

“(a)     Actual bias exists where the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.

(b)           The emphasis is upon the state of mind which affects the decision-making rather than elements of the process of decision-making taken in isolation.

(c)           Proof of an intentional state of mind adverse to the party is not the only way of proving actual bias.  Such bias may be subconscious, provided it is real.

(d)           expressed views adverse to the party’s position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings.  Though relevant to proof of actual bias, displays of irritation or impatience and the use of sarcasm by the decision-maker during the hearing are not, without more, generally sufficient to establish such bias, proof of which requires a finding on a question of fact, having regard to all the circumstances of the case.”  (Citations omitted.)

28                  The applicant sought to establish actual bias in the Tribunal by pointing to the attitude taken by the Tribunal to an important issue, namely whether a Singhalese who gave lodging to Tamils would be tortured by the security forces.  However, there was material before the Tribunal, namely a Department of Foreign Affairs and Trade cable dated 13 October 1998, which provided support for the attitude adopted by the Tribunal.  I am not satisfied that the attitude adopted by the Tribunal to this issue is suggestive of actual bias in the Tribunal.

29                  It was further submitted that, when faced with corroboration of the applicant’s evidence that he had suffered as he described, the Tribunal resorted to “perfunctory, illogical and misleading reasoning” not explicable on the ground of simple error.  I have already referred to the Tribunal’s treatment of the evidence of Mr Kadigamuwa.  The applicant also criticised the Tribunal’s treatment of the dental and medical reports provided to it.

30                  The Tribunal noted that while the dentist stated that the injuries that she observed “could be the result of an assault”, it concluded that “in light of the dentist’s ambiguous statement about how any injuries to the applicant were sustained, the Tribunal cannot be satisfied that these injuries were sustained for a Convention related reason.”  The Tribunal’s reference to “any injuries to the applicant” is not easily understood in the above context.  If the Tribunal meant thereby to imply that it doubted that the dentist had observed any injuries to the applicant, it gave no reasons for entertaining such a doubt.  The Tribunal’s statement that “it cannot not be satisfied” (which I understand to mean “was not satisfied”) that the injuries were sustained for a Convention related reason tends to suggest that the Tribunal did accept that the dentist had observed that the applicant was injured.

31                  Although it would have been helpful to the Tribunal in its fact finding exercise if the dentist had been able to report on a contemporaneous statement by the applicant as to the manner in which he sustained the injuries observed by the dentist, the real significance of the dental report was that it reported the observation of injuries which were consistent with the applicant’s claim to have been tortured shortly before the date upon which he saw the dentist.  This significance seems not to have been appreciated by the Tribunal.

32                  Similarly, the significance of the report of Dr Karalasingham was that it reported that the applicant had experienced a medical condition consistent with his story of having been tortured in Sri Lanka.  Standing alone the medical report does not constitute proof that the applicant was injured in any particular way.  However, it tends to suggest that the applicant had suffered a past trauma in the abdominal area.  By a statutory declaration dated 1 July 1999, the applicant described being tortured in custody, and of regaining consciousness and suffering, amongst other pain, extreme pain in his “lower right stomach”.  The report of Dr Karalasingham was capable of being seen as providing some support for this aspect of the applicant’s story.  This does not seem to have been appreciated by the Tribunal.

33                  The applicant placed considerable reliance on the approach adopted by Burchett J in Sun’s case.  In that case his Honour observed at 133-134:

“Errors occur, but to err so many times and in such ways, and each time against the appellant, argues overwhelmingly for the conclusion that the Tribunal member proceeded to consider the case from a preconceived opinion and a fixed position so adverse to him that he could not obtain a fair hearing.  In my opinion, that situation fell within the provision of s 476(1)(f): the decision was affected by actual bias.”

34                  The number of errors made by the Tribunal identified by the Full Court in Sun’s case well exceeds the number of errors able to be established in the reasoning process of the Tribunal in this case.  Moreover, the errors are of a different character.  The significant errors made by the Tribunal in this case are open to be seen as errors attributable to lack of competence.  To use the language of Burchett J in Sun’s case, I do not think the errors made by the Tribunal in this case do argue overwhelmingly for the conclusion that the Tribunal member proceeded to consider the case from a fixed position so adverse to the applicant that he could not obtain a fair hearing.  The errors are equally consistent with a possible lack of competence in the area of the assessment of evidence.

35                  While the approach taken by the Tribunal to the evidence before it has created in my mind a sense of unease as to the willingness of the Tribunal to be persuaded of the truth of the applicant’s story, I am not persuaded that it has been shown that the decision of the Tribunal was induced or affected by actual bias.

36                  I conclude with some regret that there is no ground upon which this Court is able to set aside the decision of the Tribunal.  The order of this Court will be that the decision of the Tribunal be affirmed.

Associate:

Dated:                                           2 August 2000