FEDERAL COURT OF AUSTRALIA

Sivasubramaniam v Minister for Immigration & Multicultural Affairs

[2000] FCA 1035

MIGRATION – decision of Refugee Review Tribunal refusing protection visa – applicants citizens of Sri Lanka of Tamil ethnicity who resided in Switzerland prior to arrival in Australia – applicants gave oral evidence before the Tribunal on two occasions – reasons of Tribunal did not refer to evidence given at earlier hearing – legal consequences of a failure on the part of the Tribunal to consider at all evidence given by applicant – whether evidence not considered by Tribunal concerned a material issue – whether Tribunal failed to observe procedures in connection with the making of its decision as required by the Migration Act 1958 (Cth).

Migration Act 1958 (Cth) s 430(1)(c) and s 476(1)(a)

Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1234 followed

SIVAPATHAN SIVASUBRAMANIAM AND SHANTHAKUMARI SIVAPATHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 241 OF 2000

MOORE J

2 AUGUST 2000

SYDNEY

THE COURT ORDERS THAT:

1.      The decisions of the Tribunal are set aside.

2.      The matter is remitted to the Tribunal for reconsideration.

3.      The respondent pay the applicants’ costs.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application by Sivapathan Sivasubramaniam (“the first applicant”) and Shanthakumari Sivapathan (“the second applicant”) (collectively, “the applicants”) for judicial review of two decisions of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed decisions of delegates of the Minister for Immigration and Multicultural Affairs (“the Minister”) not to grant the applicants protection visas.

Background

2                     The first and second applicants are, respectively, husband and wife.  They are nationals of Sri Lanka and are of Tamil ethnicity.  The first applicant was born in Jaffna and lived in Uduvil with his parents while at school.  He studied in India from 1978 to 1981 then returned to Sri Lanka to work for six months.  From 1981 to 1983 he worked in Singapore, then returned to Sri Lanka.  In 1984 he moved to Switzerland.  The second applicant was born in Jaffna and lived in Point Pedro with her parents until 1982.  She worked in Singapore from 1982, then returned to Sri Lanka.  In 1986 she moved to Switzerland.  The applicants married in Switzerland in 1987 and have two sons.

3                     The second applicant arrived in Australia with her two sons on 29 June 1997.  On 30 July 1997 she applied for a protection visa.  Her two sons were included on the application.  On 9 December 1997 a delegate of the Minister refused the application and on 19 December 1997 she sought review of that decision.  The first applicant then arrived in Australia on 17 January 1998 and, on 25 February 1998, applied for a protection visa.  On 25 May 1998 a delegate of the Minister refused the application and on 4 June 1998 he sought review of that decision.

The ground of the application for judicial review

4                     The ground of the application to this Court is that the Tribunal failed to observe procedures required by the Migration Act 1958 (Cth) (“the Act”) to be observed in connection with the making of its decision: s 476(1)(a) of the Act.  More particularly, the applicants submit that the Tribunal either failed to consider, or failed to address in its reasons, the evidence and submissions of the first applicant in the statement accompanying his visa application and in the oral evidence and submissions he gave to the Tribunal on 27 September 1999.

5                     The evidence and submissions concerned two issues: first, whether the applicants had obtained refugee status in Switzerland and whether this exposed them to a risk of persecution in Sri Lanka; and second, whether the Criminal Investigation Department (“CID”) had arrested two of the first applicant’s friends on suspicion of involvement with the Liberation Tigers of Tamil Eelam (“LTTE”) while the first applicant was working in Colombo in 1983 and whether the CID had then inquired after the first applicant.

6                     It is thus necessary to set out in some detail the course of the proceedings before the Tribunal.  Counsel for the applicants tendered, with the consent of counsel for the respondent, transcripts of the hearings before the Tribunal.  I use the expression “hearing” in this judgment as one of convenience but not overlooking the true character of the appearance before the Tribunal deriving from s 425 of the Act.

The proceedings before the Tribunal

(i) the hearing on 23 September 1999 - the application of the second applicant

7                     The application of the second applicant was heard by the Tribunal on 23 September 1999.  At the hearing, the member constituting the Tribunal asked the second applicant about her husband.  When the second respondent told the member that her husband also had an application before the Tribunal, the member adjourned in order to ascertain the status of his application.  When the hearing recommenced, the member informed the second applicant that he would be hearing the first applicant’s application on 27 September 1999.  The member said:

“We try and not have different Members deal with the same family, if possible.  Because most often there are some of the same issues that arise in cases involving the same family, we normally consider it’s better if the one person deals with those.  That is, there may well be things that your husband’s going to say that have happened to … to your family as a whole or that you might say has happened to the family as a whole that will be relevant to both cases.  So I just wanted to check that the same person was dealing with it.  As I said, it is, me!  I just hadn’t picked it up because on our filing system, your husband is listed under the name of SIVASUBRAMANIAM rather than SIVAPATHAN.  So, I knew I was seeing a Mr Sivasubramaniam on Monday [27 September 1999] but I hadn’t connected him with yourself.”

8                     At the conclusion of the hearing, the member said to the second applicant:

“I shall hear from your husband on Monday [27 September 1999] … And I shall … after I’ve heard from your husband, as it seems to me that the two cases are, at least, substantially related or they may well be.  I’ll see where that takes me then.  If I … if after hearing from your husband, I need to … I need any further information from you then I’ll arrange to see you again.  Had I connected the two files, I might have brought you all in together but I suppose it would be easier, if you’ve got two small boys, to come in separately anyway, wouldn’t it?  OK.  If I need to see you again, I shall.”

9                     During the hearing, the second applicant claimed she had obtained refugee status in Switzerland, in the following exchange:

“Question 25: And what was your Status in Switzerland?

Interpreter: We had been … granted a Refugee Visa.

…

Question 28: When did you get Residence … when did you get Refugee Visa in Switzerland?

Interpreter: As soon as someone lands, Registration will be done and they will give Refugee Visa.

Question 29: So, did you get your Refugee Visa as soon as you arrived in Switzerland in October 1986?

Interpreter: Yes.

Question 30: And … um … that’s for one year at a time … isn’t it?

Interpreter: Yes, then the date will … it can be renewed.

Question 31: So, you were granted this in October 1986 and you renewed it each year until you left.  Is that right?

Interpreter: Yes.

Question 32: Any difficulty in renewing that?

Interpreter: Uh, renewing ?

Question 33: Sorry … renewing?

Interpreter: No.

Question 34: So, what did you do … just present at an Office and it was … a new one was issued?

Interpreter: If we hand it over at our workplace, they will send it … get it renewed and get it back.

Question 35: Where did you work?

Interpreter: In a Nursing Home.

Question 36: So, this Refugee Visa entitled you to work?

Interpreter: Yes.

10                  The member then asked the second applicant whether the visa entitled her to welfare benefits and to travel.  The second applicant told the Tribunal her visa enabled her in 1991 to obtain a “B” Card with a Work Permit, and that with the visa and these additional documents she could travel to anywhere but Sri Lanka and return to Switzerland, provided she return within six months.  The member then asked:

“Question 51: What do you think would happen to you if you return to Srilanka?

Interpreter: Well, there is no safety or protection for my life and, in addition to this, my younger sister is in the Tiger Force …”

11                  The member then questioned the second applicant about her sister and her other claims.  No further mention was made during the hearing of the second applicant’s claim to have had refugee status in Switzerland.

(ii) the hearing on 27 September 1999 - the application of the first applicant

12                  The application of the first applicant was first heard by the Tribunal on 27 September 1999.  At the hearing, the first applicant claimed that he would be persecuted if returned to Sri Lanka because he had obtained refugee status in Switzerland.  This claim was made in the following exchanges between the first applicant and the member:

“Question 21:Why will you be arrested?

Interpreter: Because already I have obtained Refugee Status in a foreign country and to obtain, the Sri Lankan Authorities know that I have … may have disclosed things bad about them and being a Tamil, they will suspect that I am a Tiger.

…

Question 23: But why will they arrest you?  That’s what I’m not understanding … why they’re going to arrest you?  You haven’t been in the country fifteen years.  Why are they going to arrest you on return?

Interpreter: Because the Srilankan Government very well knows from Switzerland only the Tiger Movement is getting a lot of money and aid and help and all those things from Switzerland.  This is a well-known factor for the Srilankan Government but they do not know who is the Tiger … who is the civilian.  They do not know and they cannot hide it.  And also the other Tamil Movements like the E.P.R.L.F. and TELOW will be there in Srilanka to identify me and my family as Tiger supporters or Tigers.

…

Question 35: But, why are they going to [persecute you], Mr Sivasubramaniam, because your Passport will clearly disclose that you haven’t been in the country for fifteen years?  The notion, Mr Sivasubramaniam, that those people who the Authorities suspect might be engaging in Tiger activities … are detained and investigated … but, I just don’t see it, at the moment, as to why you are going to be suspected in that way?  The Identity Card may well identify you as being a JAFFNA Tamil but your Passport will make it clear that you haven’t been in the country for a considerable time.

Interpreter: Sir, now if I show my Passport, it will clearly indicate that I was given Refugee Status in Geneva and I have … to get that, I may have definitely told something against Srilanka and all my records will have gone to them.

Question 36: Except that there’s no information that I’ve got, that they would care “two hoots” whether you have Refugee Status in Switzerland … or if they cared?

Interpreter: Switzerland is the country from where Tigers are getting a lot of money … lot of help and all things are happening in Switzerland.  And once I was arrested suspecting that I was KUTMNEY and any Tamil heading back to Srilanka is under suspicion by the Srilankan Authorities.  Immediately … no sooner they see the Srilankan Passport and get the name and other number and the details, they will definitely know he has obtained Refugee Status in that country.  To get that … he might have been a Tiger and all these suspicions will rise and I have to face all of the reactions because of these suspicions.”

(Emphasis added)

13                  The first applicant also claimed that the LTTE had kidnapped the applicants’ sons in Switzerland, in the following exchange:

“Question 19: When you came to Australia on the first occasion, why didn’t you apply for a Protection Visa then?

Interpreter: Because during that period, when I was in Switzerland, I never had any problem whatsoever by the Tamil community in Switzerland.  In 1996 and 1997, the Tiger Movement in that country was requesting money from me several times and at last they kidnapped my children in this country …”

The failure of the Tribunal to address this claim in its reasons is, as I apprehend the submission, not relied on as a ground of review but rather as a basis on which I should infer that the Tribunal failed to consider the evidence of the first applicant given on 27 September 1999.

14                  The first applicant also claimed that when he was working for six months in Colombo in 1983 the CID had arrested two of his friends on suspicion of LTTE involvement and had inquired after him:

“Question 32: What happened to you when you were living in COLOMBO?

Interpreter: There … when I was working … I was suspected as a Tiger and the C.I.D. came and arrested me … and took me and went … sorry that is a mistake … that is wrong.  Two of my friends who were working there were suspected as Tigers and arrested by the C.I.D. and taken away.

Question 33: And yourself? And yourself?

Interpreter: Although they came to enquire me, I escaped before that and went to JAFFNA.  I informed my father, and I escaped to JAFFNA before they enquired me.”

15                  At the conclusion of the hearing, the member said to the first applicant:

“Mr Sivasubramaniam, I’m going to undertake some further enquiries to see whether what you say about people who’ve been … receive Refugee Status in Switzerland … being suspected of being Tigers.  It’s something … certainly something new to me … and it’s something I find a little surprising.  I will cause some enquiries to be made to see whether that is, in fact, what happens.  When I’ve made those … finished those enquiries, Mr Sivasubramaniam, I will see you again.”

(ii) the hearing on 20 January 2000 - the application of the first applicant

16                  A further hearing of the first applicant’s application took place on 20 January 2000.  The member opened that hearing as follows:

“Mr Sivasubramanian, just let me go through with you briefly exactly what it is that we’re doing here today.  You made the Application to the Department of Immigration for a Protection Visa and that Application was rejected and you’ve asked this Tribunal to review that decision.  I’m the Member of the Tribunal who’s conducting that Review and that means that it’s my role to determine whether you are a Refugee and therefore eligible for a Protection Visa.  But that’s all that it’s my role to do, Mr Sivasubramaniam.”

The member then explained the elements of the Convention definition of “refugee”. The member continued:

“Now I’ve had a chance to read the Department’s file, Mr Sivasubramaniam. Um, but we’re here today so that you can tell me your story and I can ask you any questions that I need the answers to.  At the end of this process, I will go away and consider what I’ve heard and what I’ve read.  When I’ve come to a decision, you will be told that I’ve come to a decision.”

The member then began to question the first applicant about his application.

17                  At this point, it is desirable to compare the member’s prefatory remarks at the hearing on 20 January 2000 with those at the earlier hearings.  At the hearing of the second applicant’s application on 23 September 1999, the member said:

“Mrs Sivapathan, can I commence by going through with you exactly what it is that we’re doing here today?  You made an Application to the Department of Immigration for a Protection Visa and the Department rejected that Application and you’ve asked this Tribunal to review that Decision.  Now I’m the Member of the Tribunal, Mrs Sivapathan, who’s conducting that Review and that means that it’s my role to determine whether you are a Refugee and therefore eligible for a Protection Visa.  But that’s all that it’s my role to do.”

The member then explained the elements of the Convention definition of “refugee” and explained that Tribunal was independent of the Department.  The member continued:

“Now I’ve had the opportunity to read the Department’s file and the submissions that have been made on your behalf.  But we’re here today so that I can hear from you about what your concerns are and so that I can ask you any questions I need the answers to and at the end of this process I’ll go away and consider what I’ve heard and what I’ve read and when I’ve considered all of that and come to a Decision, you’ll be told that I have made a Decision …”

The member then began to question the second applicant.

18                  At the hearing of the first applicant’s application on 27 September 1999, the member said:

“Mr Sivasubramaniam, can I commence by going through with you exactly what it is that we’re doing here today?  You made an Application to the Department of Immigration for a Protection Visa and the Department rejected that Application and you’ve asked this Tribunal to review that Decision.  Now I’m the Member of the Tribunal, Mr Sivasubramaniam, who’s conducting that Review and that means that it’s my role to determine whether you are, according to Australian Law, a Refugee and therefore eligible for a Protection Visa.”

The member then explained that the Tribunal was independent of the Department and the elements of the Convention definition of “refugee”.  The member continued:

“OK.  Now I’ve had a chance, Mr Sivasubramaniam, to read the Department’s file.  But we’re here today so that I can hear from you about what your concerns are and so that I can ask you any questions I need the answers to and at the end of that process I’ll go away and consider all that I have read and all that I’ve heard and when I’ve come to a Decision, you’ll be informed that I have made a Decision …”

The member then began to question the first applicant.

19                  At no point in the transcript of the hearing on 20 January 2000 does the member refer to the earlier hearing on 27 September 1999, or to any enquiries the member had caused to be made on whether Tamils who have obtained refugee status in Switzerland face a risk of persecution in Sri Lanka.

20                  The first applicant raised his application for refugee status in Switzerland at the hearing on 20 January 2000 in the following exchange with the member:

“Question 16: What was your status in Switzerland?

Interpreter: Refugee.  There is no permanent residency, as such.  It’s simply a Permission to Work for six months … for one year.  The Refugee Application was refused and therefore this arrangement was made.

Question 17: So you applied for Refugee status in Switzerland and were refused.  Is that right?

Interpreter: First refused.

Question 18: So, instead of getting Refugee Status, you got a Permission to Work?

Interpreter: Yes! Permit to Work and To Reside.”

21                  The first applicant also referred to the 27 September 1999 hearing in the following exchange:

“Question 48: That’s absolute nonsense, Mr Sivasubramaniam.  There’s no news blackout at all.  The place is crawling with foreign journalists and aid agencies and bits of reporting on it? [sic]

Interpreter: Even the foreign countries, do not know this.  I came before you on 27^th September and since that time, up until now, a number of Tamil people have been shot dead. …”

The basis of the application of the first applicant

22                  Before turning to the reasons of the Tribunal, it is necessary to refer to the parts of the first applicant’s statement accompanying his visa application that are relevant to the issues in par 5 above and which are said to have been overlooked by the Tribunal.  The first applicant referred to his application for refugee status in Switzerland in the following passage of his statement:

“When I landed in Switzerland I applied for refugee status and was given the entry permit to stay in Switzerland till the Sri Lankan government solved the problems.  The entry permit that was granted never gave any indication that we would be allowed to permanently stay in Switzerland.  The entry permit was renewed every two years.”

23                  The first applicant then set out his claims to have been forced to contribute money to the LTTE while in Switzerland.  Among these was that the applicants had participated in a plan to notify the Swiss authorities of the extraction of money from Tamils by the LTTE, which resulted in an LTTE member named Muraleetharan being imprisoned in Switzerland for six months.  This was said to have led to reprisals against the applicants by Muraleetharan and other LTTE supporters.  The first applicant then referred again to his claimed refugee status:

“It became impossible to lead a normal life in Switzerland without any fundamental rights.  As refugees we were not taken seriously by the authorities and permanent residence was not granted for us to take any action against the perpetrators.”

24                  As to the six months he worked in Colombo in 1983, the first applicant stated the following:

“… To my utter astonishment I found that the security checks in Colombo turned out to be frequent and all the Tamils who arrived in Colombo from the other Tamil districts and from abroad.  I was told that vast number of Tamil youths were taken into custody and was reported missing.  The CID and the security officers used their discretion to interrogate and deal with the detainees under the Emergency regulations.  Most of the Tamil youths fled Sri Lanka and I had to get back to Jaffna immediately while it became dangerous for a Jaffna Tamil to stay in Colombo.  As I couldn’t find a suitable job I had to leave back to Jaffna and stayed with my parents.”

I note that nowhere in his statement does the first applicant expressly make the claim set out in par 14 above.

25                  The first applicant also advanced a claim, similar to that referred to in par 13 above, that one of his sons was abducted in Switzerland by the LTTE:

“In December 1996 my son was abducted by the LTTE and was taken away from us for nearly three days till we paid the demanded sum of SF 10,000 to Muraleetharan.  …  My son was picked up by a known youth after school who said that my wife had asked him to give my son a lift home.  After this abduction I decided to send my wife away from Switzerland.”

The reasons of the Tribunal

26                  The Tribunal handed down a separate decision in each application on 22 February 2000. 

(i) the decision concerning the first applicant

27                  I deal first with the decision in the first applicant’s application.  The section headed “Claims and Evidence” commenced as follows:

“The Tribunal has before it the Department’s file and submissions in support of the application for review.  The applicant also gave oral evidence to the Tribunal on 20 January 2000.”

28                  The Tribunal then noted the second applicant’s application for a protection visa and stated:

“… The Tribunal as presently constituted heard their applications for review simultaneously with this application.  …”

29                  The Tribunal commenced to set out the first applicant’s claims regarding Switzerland as follows:

“… He has lived in Switzerland since 1986.  He had temporary resident status there but can no longer access that protection.

The Applicant wanted to leave Switzerland because he was harassed and threatened by LTTE supporters who demanded money. …”

30                  The Tribunal then described the first applicant’s claimed fear of persecution as follows:

“The Applicant claims that he is at risk of persecution in Sri Lanka because he is a Tamil and will be suspected of supporting or assisting the LTTE.  That suspicion will be based on his background, and because his sister-in-law is an LTTE activist.”

31                  The Tribunal set out the first applicant’s claims regarding his circumstances in Sri Lanka in 1983 as follows:

“In December 1983 the Army arrested him and hang [sic] him upside down.  They were chasing and arresting all Tamil youths as a reprisal for the killing of Army officers.

It was noted that the Applicant was twenty-six years old in 1983.  Perhaps not quite a youth.  The Applicant stated that lots of people were tortured.  Also the separatist movement also harmed and threatened people to get them to join.  The Applicant avoided this by staying in hiding.”

32                  After noting that it put to the first applicant that there did not seem to be anything about him to arouse the suspicion of the Sri Lankan authorities, the Tribunal stated:

“The Applicant responded that because he and his wife have been in Switzerland that they have been financial supporters of the LTTE.  Switzerland is the largest source of funds for the Tigers.  …”

33                  In the same decision, the Tribunal also set out the second applicant’s claims.  It expressed her claims regarding her refugee status in Switzerland as follows:

“The Applicant wife has been resident in Switzerland for ten years.  She married there and her sons were born there.  The Applicant wife had been given refugee status in Switzerland …

The Applicant wife had status in Switzerland that allowed her to travel, and return, without losing her entitlements, provided she did not travel to Sri Lanka.

The Applicant wife stated that she has no status at present in Switzerland, as she has been away for more than six months.  She states that she cannot apply, in Australia, for return of her Swiss refugee status.”

34                  The Tribunal set out its findings under the heading “Findings”.  As to events in Sri Lanka in 1983, the Tribunal stated:

“I am satisfied that before he left Sri Lanka he was arrested and hung upside down by elements of the Sri Lankan Army who were angered by the killing of fellow officers.”

35                  As to events in Switzerland, the Tribunal stated:

“While living in Switzerland the Applicant was harassed and threatened by LTTE supporters demanding money.  This formed at least part of the motivation for their move to Australia.”

36                  The Tribunal then restated the first applicant’s claims as follows:

“The Applicant claims that he will be at risk of persecution on return to Sri Lanka.  He claims that he will be immediately identified as an LTTE supporter because he is a Tamil, because he left without completing a police report, because he has lived in Switzerland, because some Tamils who studied with him are now in non-LTTE Tamil groups, and because his sister-in-law is an LTTE activist.”

(Emphasis added.)

37                  The Tribunal then referred to country information from various sources.  Counsel for the Minister drew attention to the fact that one Department of Foreign Affairs and Trade (“DFAT”) Country Information Report (“CIR”) referred to by the Tribunal (CIR 67/98, dated 23 March 1998), dealt with the repatriation of failed Tamil asylum seekers by the Swiss Government.  However, the reasons of the Tribunal contain only a bare citation, and do not refer to that aspect of the report’s content.  The Tribunal also quoted from a report of Amnesty International entitled Sri Lanka: a fractured island (AI Index: ASA 01/01/97, dated 1 January 1997), which discussed the case of one failed Tamil asylum seeker repatriated by the Swiss Government.  No reference was made to material concerning asylum seekers who had succeeded in obtaining asylum in Switzerland.

38                  The remainder of the Tribunal’s findings contained no express reference to the issues identified in par 5 above.  The findings were as follows:

“I note that the applicant has not been in Sri Lanka for fifteen years.  Moreover he can easily produce evidence of that to the police if stopped at a checkpoint or questioned.

He has no background of LTTE activity.  He was involved in one relatively minor incident with the Army before he left Sri Lanka.  His father is a retired civil servant in receipt of a government pension.  There does not seem to be anything about his background about which his former classmates could report.

I am not satisfied that he would be suspected of being pro-LTTE because the sister of a woman who he met and married in Switzerland is an LTTE activist.  Nor am I persuaded that any such connection would be made.

I am not satisfied that the Applicant’s name and details will be held at the airport.  Nor that he will be arrested on his return to Sri Lanka.  I am not satisfied that any particular suspicion will attach to him.  I am not satisfied that the Applicant would be suspected of being an LTTE supporter or activist.

In the circumstances I am not satisfied that there is a real chance that the Applicant would be persecuted on return to Sri Lanka.  I am not satisfied that any fear of persecution that the Applicant has is well-founded.”

(ii) the decision concerning the second applicant

39                  I deal now with the decision of the Tribunal in the application of the second applicant.  The section headed “Claims and Evidence” commenced as follows:

“The applicant’s claims are set out in written submissions to the Department, an interview with an officer of the Department, written submissions to the Tribunal and oral evidence given to the Tribunal on 23 September 1999.”

40                  These reasons do not contain a statement of the type set out in par 31 above.  The Tribunal set out the second applicant’s claims regarding Switzerland in substantially the same terms as in par 33 above.

41                  Under the heading “Findings”, the Tribunal restated the second applicant’s claims as follows:

“The Applicant claims that she and her sons will be at risk of persecution on return to Sri Lanka.  She claims that she will be immediately identified as an LTTE supporter because she is a Tamil, and because her sister is an LTTE activist.  Alternatively she or her sons may be pressured to join the LTTE.”

42                  The Tribunal referred to the two country information sources mentioned in par 41 above but made no express finding concerning the second applicant’s status in Switzerland.

Consideration of the issues raised in the application for judicial review

43                  The legal issues raised by the application are whether the following constitute failure by the Tribunal to observe procedures required to be observed in connection with the making of its decision (s 476(1)(a)):

(a)    A failure by the Tribunal to consider evidence.

(b)   A failure by the Tribunal to set out its findings on any material questions of fact and refer to the evidence on which the findings of fact were based (s 430(1)(c) and (d))

44                  Counsel for the applicants submitted that it is apparent that the Tribunal overlooked the evidence given by the first applicant at the hearing on 27 September 1999.  That can be inferred from the way the Tribunal commenced the proceedings on 20 January 2000.  Further, the Tribunal made no mention of the earlier hearing, the issue that had led to the adjournment or the inquiries that it had foreshadowed before it adjourned.  Though the Tribunal's decision concerning the first applicant referred to his evidence, no mention was made to oral evidence given on 27 September 1999.  While the Tribunal set out the evidence of the first applicant given on 20 February 2000, it did not refer to significant evidence given on 27 September 1999 (the kidnapping of the children; obtaining refugee status in Switzerland and what the Sri Lankan authorities might conclude from that status; and having been questioned by the CID and escaping to Jaffna).

45                  Counsel for the applicants submitted that the Tribunal was obliged to consider the evidence given on 27 September 1999 and its failure to do so established the ground in s 476(1)(a). As to the existence of such an obligation, reference was made to the judgments of Branson J in Ahmed v Minister for Immigration & Multicultural Affairs (1999) 55 ALD 618 at 626-627 and Mansfield J in Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1234 at par 25.  It was submitted that the failure of the Tribunal to consider any piece of evidence gave rise to legal error.  However the materiality of the evidence was relevant to the exercise of the discretionary power to grant relief in an application for judicial review.  It was also submitted that there had been a failure to satisfy s 430 because the Tribunal did not say it rejected the first applicant's evidence about his status in Switzerland and its consequences for him upon re-entering Sri Lanka.  Similarly, it did not say that it rejected the evidence of the first applicant concerning his escape to Jaffna.

46                  Counsel for the applicants submitted that the second applicant also raised as an issue the consequences, on return to Sri Lanka, of having had refugee status in Switzerland. It was not dealt with by the Tribunal with the consequential legal effect referred to in the preceding paragraph.

47                  Counsel for the Minister submitted s 476 concerned errors of law affecting the decision: see Minister Immigration & Ethnic Affairs v Thiyagarajah (2000) 74 ALJR 549 at 552 (par 17).  Counsel for the Minister did not put in issue that the Tribunal was obliged to consider relevant material though any failure to do so would only constitute reviewable error if it affected the ultimate decision.  It was submitted that while the first applicant had given evidence at the hearing on 27 September 1999 suggestive of him having been accepted as a refugee in Switzerland, evidence given at the second hearing on 20 January 2000 was clear .  His evidence then was that he had not been a refugee.  Thus, even if the Tribunal overlooked what had been said on 27 September 1999 (which was not conceded) it was not, in view of the later evidence, material evidence.  It could be inferred that when the Tribunal said, as it did in its reasons for decision in relation to the first applicant, that the first applicant had temporary residence status (in Switzerland) but could no longer access that protection, it was finding that the first applicant had not secured refugee status.  It was submitted that this inference could more readily be drawn because the Tribunal made an express finding that the second applicant had been given refugee status in Switzerland.  This was so notwithstanding, as contended by counsel for the applicants, that these references appear in the decisions in a section (“Claims and Evidence”) which might suggest they are part of the Tribunal's summary of the evidence and not findings of fact. Moreover, it was submitted, the case advanced by the first applicant in written submissions was not that he would attract attention upon re-entry into Sri Lanka because of notations in his passport.  Rather, it was because events that had happened 15 years earlier would mark him out for attention.

Conclusions in the application for judicial review

48                  It is, in my opinion, relatively clear that the Tribunal overlooked the fact that a hearing had been conducted on 27 September 1999 at which the first applicant gave evidence.  It is also relatively clear that the Tribunal overlooked and did not take into account what had been said by the first applicant at that hearing.  First, the Tribunal did not mention the hearing in its reasons for decision even though reference was made to the hearing on 20 January 2000.  One would ordinarily expect that if a summary was to be made of the occasions in which an applicant gave evidence it would be comprehensive.  Moreover the Tribunal considered, at the time of the hearing on 27 September 1999, that the claim of the first applicant that he had been a refugee in Switzerland and this would have an impact when he sought to re-enter Sri Lanka, to be sufficiently important to warrant further inquiries being made.

49                  I accept that at the hearing on 20 January 2000 evidence was given that could have justified a finding by the Tribunal that the first applicant had not been a refugee though the precise evidence of the first applicant included that he was “first refused” refugee status.  However even on a generous reading of the Tribunal's reasons, in my opinion, no finding was made on this question.  It is, of course, possible that the Tribunal did make inquiries after the hearing on 27 September 1999 and found the contention of the first applicant to be untenable.  However, again, one would have expected mention to been made of this conclusion in the reasons even if only to say the contention was untenable and/or the factual foundation for it (that the first applicant had been a refugee) was not accepted.  In my opinion, the better view is that the Tribunal forgot that the claim had been made and forgot that evidence had been given supportive of a conclusion that the first applicant had been given refugee status in Switzerland.  The inference that the Tribunal overlooked the fact that a hearing had taken place on 27 September 1999 is fortified by the way the Tribunal commenced the hearing on 20 January 2000.  The approach of the Tribunal was consistent with it then believing that it was the first occasion the first applicant was giving evidence.  I do not think anything really turns on the fact that the Tribunal did not mention in its reasons the three matters referred to in the last sentence of par 44 above.

50                  The evidence of the first applicant that he had been a refugee and that this would have certain consequences for him on re-entry did not concern a trivial matter and could have, potentially, a material bearing on his application for a protection visa.  The evidence raised for consideration a number of questions.  The first might be whether the Swiss authorities had been satisfied the applicants had a well founded fear of persecution were they to return to Sri Lanka.  The second might be that if the Swiss authorities were satisfied of this, was it because they believed the Sri Lankan authorities would perceive the applicants as Tamil sympathisers.  If so was that because they were Tamil sympathisers.  Additionally, a question might arise whether people who actually had gained asylum in another country risked persecution in Sri Lanka by virtue of having gained that status.  Ultimately the answers to these questions would be a matter for the Tribunal though the approach of the Tribunal at the conclusion of the hearing on 27 September 1999 lends support to the view that this aspect of the first applicant's evidence, even though emerging at the hearing for the first time, was not insignificant.  These questions, in my opinion, point to the evidence as raising an objectively material matter. 

51                  Counsel for the Minister drew attention to the notations in the passports of both the first applicant and the second applicant and what might be inferred from them about whether both applicants had been granted refugee status in Switzerland and whether that would be revealed (by the notations themselves) to the Sri Lankan authorities.  However it is not for this Court to make findings of fact about whether the first applicant had been recognised as a refugee in Switzerland or about the significance of certain entries in passports in proceedings such as these.  In my opinion, I should proceed on the basis that the first applicant’s evidence, at one stage, was that he had been accepted as a refugee in Switzerland, and that this was apparent from his passport and had certain adverse consequences for him on re-entry to Sri Lanka.  This evidence was not considered by the Tribunal and concerned a material issue.  For the reasons given by Mansfield J in Singh v Minister for Immigration and Multicultural Affairs (supra), the Tribunal was obliged to consider this evidence.  In that case his Honour made the following observations (at par 25-26) with which I respectfully agree:

“It is not disputed by the respondent that the Tribunal was obliged to consider the evidence which it received.  Under the Act, once an application for review is brought to the Tribunal, the Secretary is obliged to provide certain information to the Tribunal pursuant to s 418 of the Act.  That is information to which the Tribunal must have regard.  There are other procedures by which the Tribunal procures or may procure evidence, eg. under ss 423 and 425(1)(a) of the Act.  Once it has such evidence, in my view, it is  obliged by implication to consider it.  In addition, once it receives evidence in the exercise of its powers under ss 425(1)(b), 426 or 427, it is obliged to consider that material.  If it failed to do so, it would be abdicating its obligation under the Act.

That is not to say that the Tribunal is obliged to give all or any material before it any particular weight.  That is a matter for it.  But it is not entitled simply to ignore it.  To use a coarse example, it could not say in respect of the material provided by the Secretary under s 418, or of the evidence given by an applicant, that the Tribunal simply elects not to pay any attention to that material without considering whether it should do so.”

52                  While s 425 was, as considered by his Honour, differently expressed, the material element concerning the applicant giving evidence continues as part of s 425.  I am not aware of any Full Court decision given since then, and I certainly was not referred to any, which would suggest his Honour’s conclusion was wrong or inapplicable to the Act in its present form.  In my view, the failure of the Tribunal to consider the first applicant’s evidence about his refugee status in Switzerland and the consequences of having been accorded that status involved a failure to observe a procedure required by the Act to be observed in connection with the making of a decision.

53                  The position of the second applicant is slightly different.  Her evidence was that she had been accepted as a refugee in Switzerland.  The Tribunal took the approach, correctly in my opinion, that the applications of the first applicant and the second applicant should not be considered separately.  The claim made by the first applicant (and the perceived significance of it to the Tribunal) coupled with the evidence of the second applicant (that she had been a refugee) raised for consideration, in relation to the second applicant, the same issue that the Tribunal did not consider in relation to the first applicant.  I am satisfied that the Tribunal did not consider this issue (including the evidence of the first applicant) in relation to the second applicant either.  It is not referred to by the Tribunal in its reasons for decision concerning the second applicant.  Moreover if the Tribunal overlooked the fact that there had been a hearing involving the first applicant on 27 September 1999 it is probable, as earlier mentioned, it overlooked entirely the fact that this issue had been raised and its potential relevance to the second applicant.

54                  I turn now to the submission by counsel for the applicants that the Tribunal failed to comply with s 430(1).  The submissions of the parties were made on 28 June 2000.  The judgment of the five member Full Court in the Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 concerning s 430 was given on 30 June 2000.  Were it not for the conclusions already expressed which dispose of the application I would invite further submissions from the parties.  However the failure of the Tribunal to consider the evidence of the applicants that they had been accepted as refugees in Switzerland, and the evidence of the first applicant that this would be evident from his passport and would draw attention to them on re-entry into Sri Lanka may well involve a failure to make a finding of the type referred to in par 47 of the joint judgment of Black CJ, Sundberg, Katz and Hely JJ.  The only reasons why this conclusion is expressed in this qualified way is that, on one view, s 430 operates on an assumption that the Tribunal has, as a matter of fact and as a step in the process of making its decision, had regard to evidence before it, at least in the sense that it has not forgotten (as a demonstrable fact) that an applicant had given evidence on a particular occasion or overlooked entirely what that evidence was.  However this is not a matter that requires further exploration given that the Tribunal’s decision will be set aside and the applications remitted to the Tribunal in any event.

55                  The decisions of the Tribunal should be set aside and the applications of the first applicant and the second applicant should be referred to the Tribunal for further consideration.  The Minister should pay the applicants’ costs.  I so order.

Associate:

Dated:              2 August 2000