FEDERAL COURT OF AUSTRALIA

Thayananthan v Minister for Immigration & Multicultural Affairs

[2000] FCA 1825

MIGRATION -application for order to review decision of Refugee Review Tribunal affirming decision of delegate of respondent not to grant protection visas to applicants - claims of applicants disbelieved by Refugee Review Tribunal - determination by Refugee Review Tribunal that applicants not refugees in accordance with the Refugees Convention - whether Refugee Review Tribunal breached its obligations pursuant to s430 of the Migration Act 1958 (Cth) - whether Refugee Review Tribunal failed to make findings on material questions of fact - allegation of bias - whether the decision of Refugee Review Tribunal was affected by actual bias - whether the decision of Refugee Review Tribunal constitutes an improper exercise of power in contravention of s476 of the Migration Act 1958 (Cth) - whether Refugee Review Tribunal effectively and inflexibly applied a policy that it should follow DFAT advice in preference to evidence of applicants - judgment given in circumstances where uncertainty as to Full Court authority on questions of law considered by primary Judge

Migration Act 1958 (Cth) s430, 476(3)(c)

Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469, [2000] FCA 845 applied

H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348 applied

Minister for Immigration & Multicultural Affairs v A (1999) 168 ALR 594, [1999] FCA 1679 referred to

Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 applied

Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456 referred to

Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 applied

CHELLIAH DAVID THAYANANTHAN, SATHYA JEEVAMALAR THAYANANTHAN, MARLIN MADURA THAYANANTHAN and SABEENA DAYANI THAYANANTHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V53 OF 1999

MARSHALL J

MELBOURNE

12 DECEMBER 2000

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicants pay the respondent’s costs of, and incidental to, the application including reserved costs.

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

REASONS FOR JUDGMENT

1                     In this proceeding the applicants have sought an order to review a decision of the Refugee Review Tribunal (“the RRT”) made on 6 January 1999. The RRT, by its decision of that day, refused the applicants’ application for protection visas.

Background

2                     The applicants are citizens of Sri Lanka. They are of Tamil ethnicity. The first and second applicants are husband and wife respectively. The remaining applicants are their daughters. The application for protection visas was based principally upon the claims of the first applicant, Mr Thayananthan.

3                     The applicants applied for protection visas on 25 November 1996. The first applicant completed the appropriate application form, Form 866. However, he did not make any claims relevant to the Refugees Convention but indicated that a “statement” would be “forwarded”.

4                     On 5 February 1997, Mr Thayananthan made a statutory declaration in support of the application for protection visas and forwarded it to the respondent’s department. The statutory declaration made claims relevant to the Refugees Convention.

5                     On 13 June 1997, a delegate of the respondent refused to grant the applicants protection visas. By letter dated 2 July 1997, which was received by the RRT on 3 July 1997, Mr Thayananthan applied to the RRT to review the decision of the delegate.

6                     On 19 August 1998, the RRT advised Mr Thayananthan that it was unable to determine the application on the papers alone and required a hearing which was scheduled for 13 October 1998.

7                     A detailed written submission was forwarded by Mr Thayananthan’s then solicitors to the RRT by letter dated 11 October 1998. On 13 October 1998, the RRT conducted a hearing of the application. Mr Thayananthan and Mrs Thayananthan gave oral evidence at the hearing.

8                     On 3 December 1998, the RRT wrote to Mr Thayananthan’s then solicitors inviting further submissions on an attached “recent report from the Department of Foreign Affairs and Trade (“DFAT”) regarding the LTTE presence and activities in Colombo”. Submissions in response were provided in a letter dated 11 December 1998.

9                     On 6 January 1999, in a decision which was forwarded to Mr Thayananthan on the same day, the RRT affirmed the decision of the delegate not to grant protection visas to the applicants.

Facts found by the RRT

10                  The RRT accepted that Mr Thayananthan and his family had been attacked by Singhalese people in anti-Tamil riots in Colombo in 1983 and had fled to Jaffna. He returned to Colombo later in 1983 and his family joined him in 1984. The RRT also accepted that Mr Thayananthan was detained for a brief period by police when a bomb exploded in a bank in Colombo in January 1996 when Mr Thayananthan was in the vicinity of the explosion.

Other claims

11                  When Mr Thayananthan returned to Colombo in 1983 he worked as a shipping executive. He alleged that in November 1991, two Tamil boys came to his house and made threats to Mr Thayananthan’s family to force Mr Thayananthan to give them his motorbike. When the motorbike was returned the following day, it was alleged that he was forced to accommodate two people in his house for two weeks and that he moved out of his home which was subsequently taken over by the Liberation Tigers of Tamil Elam (“the LTTE”). Mr Thayananthan claimed that he and his family were threatened in 1993 and again in 1995. It was alleged that in 1995, two Tamil boys came to Mr Thayananthan’s unit and identified themselves as LTTE members. It was alleged that they demanded that Mr Thayananthan provide a detailed map of Colombo harbour, a schedule of ships arriving in the harbour, details of security arrangements in the harbour and the dates on which important people were coming to the harbour. Mr Thayananthan claimed that he stalled the LTTE operatives for a time but that on 2 July 1995 he was detained by police who interrogated and tortured him for seven days. It was alleged that Mr Thayananthan was only released after the intervention of a Pastor from his church. He said that he received a further visit from the LTTE a week after his release from detention and advised that person that he could not get a map of the harbour.

12                  Mr Thayananthan further alleged that:

·        After the LTTE attacked oil refineries at Kollonawa in October 1995, the police searched his house and threatened him.

·        After the bombing in Colombo in January 1996, he was detained and injured so severely he required hospitalisation.

·        In April 1996, the LTTE attacked Colombo harbour and on 30 July 1996, one of the Tamil boys who had previously visited him told him that they wanted to blow up the harbour again and needed his further help.

·        He then decided to flee Sri Lanka. In September 1996, he accompanied the third applicant to Australia for an operation. He left her to convalesce with his brother in Canberra and returned to Sri Lanka. On his return, he applied for visas for himself, his wife and the fourth applicant. Mrs Thayananthan was threatened by the police when he was in Australia. His return to Sri Lanka lasted 10 days, during which he lived in fear. Money was paid for safe passage to the airport to assist the family to leave Sri Lanka.

Claims disbelieved by the RRT

13                  In its reasons for decision, the RRT stated that Mr Thayananthan was not “an entirely credible or … truthful witness”. It disbelieved several of his claims, including the following:

·        the approach by the LTTE to gather information for them or to help to plant a bomb at Colombo Harbour;

·        his detention for 7 days after a visit from the LTTE; and

·        the threat to Mrs Thayananthan from the police when Mr Thayananthan was in Australia.

14                  In particular, the RRT found the evidence given by Mr Thayananthan about his contact with the LTTE to be “unconvincing and implausible”. It specifically failed to accept that Mr Thayananthan was approached by the LTTE in 1995 or detained as a result of that contact.

The RRT’s reasoning process

15                  The RRT, apart from the 1983 anti-Tamil riots claim and the 1996 detention claim, generally disbelieved Mr Thayananthan’s evidence. It observed that Mr Thayananthan’s ability to leave Sri Lanka on his own passport, return after a brief visit overseas and experience no consequent problems was indicative of the fact that he was not of interest to the Sri Lankan police on account of his suspected links to the LTTE. Specifically, the RRT found that:

“(H)is decision to make a return visit to Sri Lanka shortly after he had left (is) a strong indication that he did not have a genuine fear of serious harm at the hands of the Sri Lanka(n) authorities or of the LTTE.”

16                  The RRT rejected Mr Thayananthan’s claim that he made the trip back to Sri Lanka to arrange a visa for his wife to travel to Australia. The RRT said that it did not accept “that he would have risked his freedom or his life to assist his wife apply for a visa for Australia when there is no reason to suspect that she would not have been able to make these arrangements herself”.

17                  The RRT considered it unlikely that the LTTE would approach ordinary Tamils living in Colombo for assistance in gathering information or in carrying out violent activities. It relied upon a DFAT report which was consistent with that view. The RRT said that:

“Apart from the claims made by Mr Thayananthan, there is no evidence before the Tribunal which suggests that the LTTE forces Tamils in Colombo to collect information or participate in violent activities on their behalf, nor that ordinary Tamils are being harmed by the LTTE in Colombo for refusing to assist them.”

18                  The RRT went on to say that “any suggestion that the LTTE had approached someone for assistance in Colombo or made threats against them should (not) be dismissed out of hand”. Importantly, it also said that in Mr Thayananthan’s case, it did not find his evidence about the alleged approaches to him to be convincing. The RRT found that the LTTE would have no reason to obtain information on security arrangements at the harbour from a shipping agent.

19                  In respect of Mr Thayananthan’s detention in 1996, the RRT held that it occurred as part of a general round-up of Tamil people. It held that “Mr Thayananthan’s treatment … does not indicate that he was questioned or detained for reasons other than legitimate security measures, nor that he was of serious or continuing interest to the authorities”. It further noted that:

“(H)is brief detention in 1996 occurred because he was nearby when the bomb exploded, not because of any real suspicion that he was involved in the bombing or the LTTE. It is clear from the evidence that anyone who is seriously suspected of involvement with the LTTE faces arrest and imprisonment in Sri Lanka and that those who are released within a short time are not of significant or continuing interest to the authorities.”

20                  Importantly, the RRT stated that:

“(E)ven if I accepted Mr Thayananthan’s claims regarding the problems he faced with the Sri Lankan authorities from 1995 until his departure for Australia in 1997, I would not be satisfied that he was perceived as an LTTE associate during this period.”

21                  The RRT also did not accept that Mrs Thayananthan was threatened while Mr Thayananthan was first in Australia having regard to the lack of interest in Mr Thayananthan by the Sri Lankan authorities.

22                  The RRT concluded that Mr Thayananthan was not a refugee in accordance with the Refugees Convention.

Section 430 point and associated submissions

23                  Mr Krohn, of counsel, appeared for the applicants. He submitted that the RRT breached its obligations pursuant to s430 of the Migration Act 1958 (Cth) (“the Act”) in refusing to grant protection visas to the applicants.

24                  It was contended that the RRT failed to make a finding on the following material questions of fact:

·        whether Mr Thayananthan was beaten during his detention in January 1996; and

·        whether there is a real chance that Mr Thayananthan would suffer persecution again of the kind he suffered in his arrest, detention and beating in January 1996.

25                  It was further submitted that in breach of s430 of the Act, the RRT did not refer to any evidence upon which it could base its finding that:

“I have (sic) do not accept that he would have risked his freedom or his life to assist his wife apply for a visa for Australia when there is no reason to suppose that she would not have been able to make these arrangements herself.”

26                  Additionally, it was contended that the RRT was in breach of s430 of the Act by not referring to any evidence which caused it to accept certain advice from DFAT about LTTE operations in Colombo.

27                  Further submissions referrable to s430 of the Act were made with reference to the RRT’s failure to find certain evidence of Mr Thayananthan to be credible.

28                  In Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469, [2000] FCA 845, in the context of s430 of the Act, Black CJ, Sundberg, Katz and Hely JJ said that (at [57]):

“A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists.”

29                  The decision in the practical circumstances of the case before the RRT did not depend on whether Mr Thayananthan was beaten during his detention in 1996. The RRT assumed for the purposes of the argument before it that Mr Thayananthan’s “problems” from 1995 to 1997 were real but held that even so, that would not lead it to be satisfied that Mr Thayananthan was perceived to be an LTTE associate during that time. The question of whether or not Mr Thayananthan was beaten during his detention in 1996 cannot be said to be a material question of fact in the context of s430 of the Act in light of Singh.

30                  Mr Krohn’s submission that the RRT breached s430 of the Act by failing to set out whether there is a real chance that Mr Thayananthan would suffer persecution of the sort he suffered in 1996 on his return to Sri Lanka is also rejected.

31                  The RRT’s finding that Mr Thayananthan would not be perceived by the authorities as an LTTE associate is consistent with the view of the RRT that there is not a real chance that Mr Thayananthan would suffer persecution on his return to Sri Lanka, being persecution of the sort alleged by him to have occurred in 1996. Further, the RRT’s view that Mr Thayananthan is not of current interest to the authorities more than amply illustrates why this aspect of Mr Krohn’s submissions is without merit.

32                  Similar criticisms by Mr Krohn of the RRT’s approach to Mr Thayananthan’s return to Sri Lanka are also devoid of merit in the context of s430 of the Act and in so far as it was alleged that the RRT failed to give proper consideration to this aspect of the claim of the applicants. The case before the RRT did not “turn upon” whether Mr Thayananthan returned to Sri Lanka or his motives for so doing. His return was merely illustrative of the RRT’s view that such a return could be effected without consequent persecution. It was not a matter in respect of which it was bound to make further inquiries concerning why the first applicant would return to Sri Lanka to assist his wife apply for a visa.

33                  On the topic of the RRT’s acceptance of the DFAT material, it is unnecessary for the RRT to say why it accepted such material. In any event, the RRT did refer to why it preferred the DFAT advice over the contrary view preferred by Mr Thayananthan, even though it was not obliged to do so: see Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 at [58], per Kiefel, North and Mansfield JJ. The RRT did not fail to disclose “that element of [its] actual reasoning process”: see Singh at [46].

34                  The criticism of the RRT for not referring to evidence upon which it based its finding that Mr Thayananthan would not face persecution for simply being a Tamil is without foundation. There was simply a lack of evidence to support the claim that was made in that regard by Mr Thayananthan. Mr Krohn took the Court to several parts of a written submission made on behalf of Mr Thayananthan, none of which supported the broad proposition that Tamils per se were at risk of persecution. However, even if there was such evidence, it could not assist Mr Thayananthan unless he was considered, on the evidence, to have a profile which would bring him to the attention of the authorities. There was no evidence that he had such a profile. There was no basis for the submission that Mr Thayananthan’s detention may have increased his profile in Sri Lanka in light of there being no evidence to support that proposition from any event which occurred after the January 1996 detention whilst Mr Thayananthan was in Sri Lanka.

35                  It was submitted further that the RRT failed to refer to any evidence or reason for its finding that the first and second applicants were not credible in many respects. That submission is rejected. The RRT did give reasons for its view that certain aspects of Mr Thayananthan’s evidence were “unconvincing and implausible”. That part of the evidence of the second applicant which was rejected by the RRT was evidence which was supportive of evidence which Mr Thayananthan gave and which the RRT did not accept.

Actual bias

36                  Another substantive submission made by Mr Krohn which had independent life apart from reliance on s430 of the Act was the submission that the RRT’s decision was affected by actual bias. Paragraphs 55 and 56 of the applicants’ contentions of fact and law stated as follows:

“In relation to crucial aspects of the applicant’s claim, in particular in relation to his detentions, his being approached by the LTTE to assist them, and his return to Sri Lanka, it is clear that the Tribunal was not actually open to persuasion. The Tribunal’s decision was therefore affected by actual bias within the meaning given to that phrase by the Full Court of this Honourable Court in Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71.

The applicant does not allege fraud or malice on the part of the Tribunal. However, in looking at the way in which the Tribunal has ignored the detailed submission by the applicant’s (sic) representative critical of advice by DFAT, the cavalier attitude of the Tribunal to the credibility of the second applicant, and the failure of the Tribunal to inquire whether the applicants were right in saying that the first applicant had to return to Sri Lanka for the wife to obtain a visa, it is clear that the Tribunal was not actual (sic) open to persuasion in favour of the applicant. The tribunal did not actually approach the applicants’ case with an open mind and accordingly the decision was affected actual bias (sic) and should be set aside.”

37                  I reject those submissions. There is no evidence on the face of the RRT’s decision that it was not open to persuasion with respect to Mr Thayananthan’s application. None of the factors referred to by the Court in H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348 at [26] to [29] are present in this case. There was:

·        no demonstration of a dysfunctional decision making process;

·        no evidence of actual prejudgment, hostility, prejudice or predisposition to decide the question in a particular way; and

·        no closed mind to the issues raised.

Further, there is no substance to the contention that the RRT failed to give genuine and realistic consideration to the matters before it, especially the competing submissions on the importance of the DFAT material before it. That is à fortiori considering what appears below.

Improper exercise of power

38                  Mr Krohn submitted that the RRT effectively and inflexibly applied a policy that it should follow advice from DFAT in preference to evidence submitted on behalf of the applicants. I reject that contention; assuming it to be an available one under s476(3)(c) of the Act. The reason I do so is that the RRT did not in fact rely exclusively on the DFAT material in coming to its decision but weighed it in the balance in the context of all other relevant material before it. It viewed the advice as “a very strong indication that the LTTE would not have approached Mr Thayananthan in the manner claimed”. It did not say that the DFAT advice was determinative of that issue.

Other matters

39                  The hearing of the application commenced on 31 March 2000 and was part heard at its substantive hearing on 12 December 2000. On 31 March 2000, Mr Krohn referred the Court to the then recent judgment in Minister for Immigration & Multicultural Affairs v A (1999) 168 ALR 594, [1999] FCA 1679 in support of the submission that there was no valid application before the RRT for it to consider.

40                  On 31 March 2000, the hearing of the application was adjourned to await the outcome of the appeal in Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906. The hearing was further delayed having regard to the impending hearing of the appeal in Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456.

41                  Sitting as a single Judge, I am bound by Yilmaz to hold that the application made by the first applicant for protection visas was a valid one. Unlike in Li, but as in Yilmaz, the additional information provided by the first applicant after making the application for protection visas was provided to the respondent’s department and not to the RRT.

42                  Special leave has been sought by Mr Yilmaz to appeal from the judgment of the majority in Yilmaz. It is unknown whether leave will be granted and, if so, when the appeal will be heard. In the interim, I am bound to apply Yilmaz, given that as a single Judge I must do so unless and until a subsequent Full Court of this Court or the High Court of Australia decides to the contrary. The application to the RRT was made by the first applicant on behalf of himself and the other applicants and was a valid application in accordance with Yilmaz; albeit that some material in respect of the second applicant was not completed on the relevant form.

Order

43                  The appropriate order is as follows:

1.                  The application be dismissed.

2.                  The applicants pay the respondent’s costs of, and incidental to, the application including reserved costs.

Associate:

Dated:              13 December 2000