FEDERAL COURT OF AUSTRALIA

Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476

CITIZENSHIP AND MIGRATION – review of Tribunal decision affirming decision to refuse a protection visa – post-hearing information and developments – whether Tribunal obliged to invite applicants to present evidence and arguments in respect of post-hearing developments – whether applicants entitled to a “genuine opportunity” to address issues in relation to the review – whether former s 425(1)(a) applies.

CITIZENSHIP AND MIGRATION – apprehended bias – whether refusal to disqualify oneself is a “decision on the review” – whether Tribunal member required to give reasons for refusal to disqualify herself – whether improper exercise of power.

CITIZENSHIP AND MIGRATION – whether Tribunal failed to set out finding on a material question of fact – whether Tribunal failed to set out its reasons for rejecting expert opinion – whether decision based on a fact that did not exist – whether no evidence or other material to justify finding – whether Tribunal failed to give proper, genuine and realistic consideration to the expert opinion – whether constructive failure of jurisdiction.

CITIZENSHIP AND MIGRATION – whether Tribunal applied “What if I am wrong” test.

Migration Act 1958 (Cth) ss 476(1)(a),(d),(e), (g), 3(b), 4(b), 424, 424A-C, 425, 430(1).

Acts Interpretation Act 1901 (Cth) ss 8(c), 15AB, 33(1).

Migration Legislation Amendment Act (No. 1) 1999 (Cth), sch 3, s 20.

Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315; [1999] FCA 946, discussed.

Muntaser Ibrahim Yousef Sheik Mohammed v Minister for Immigration and Ethnic Affairs [2000] FCA 264, discussed.

De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364; [2000] FCA 765, discussed.

Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275, applied.

Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472, applied.

Yao v Minister for Immigration and Multicultural Affairs (1996) 69 FCR 583, applied.

Re: Refugee Review Tribunal; Ex parte Aala [2000] HCA 57, cited.

Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; [1997] FCA 551, applied.

Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368, not followed.

Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274, applied.

Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; [1999] FCA 247, applied

Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559, applied.

Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28; [1998] FCA 1693, discussed.

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469; [200] FCA 845, applied.

Rajeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470, discussed.

Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277, discussed.

Minister for Immigration and Multicultural Affairs v Rajalingam  (1999) 93 FCR 220; [1999] FCA 794, applied.

SABRINA TAMARIS ALGAMA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 400 of 2000

RAJITHA SANTHUSH ALGAMA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 401 of 2000

NORTH J

MELBOURNE

27 APRIL 2001

THE COURT ORDERS THAT:

1.                  Each of the applications is dismissed.

2.                  The applicant in each of the applications is to pay the respondent’s costs of and incidental to that application.

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

REASONS FOR JUDGMENT

1                     Before the Court are two applications for review, one in relation to each of two separate decisions of the Refugee Review Tribunal (the Tribunal).  The decisions were made on 28 April 2000 and they affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs, the respondent, to refuse to grant a protection visa to Mr Rajitha Santhush Algama and Mrs Sabrina Tamaris Algama.

2                     The claims of Mr and Mrs Algama, and their arguments on review, are substantially the same, but do differ on one or two issues.  In these reasons Mr and Mrs Algama are referred to as the applicants, except where there is a need to differentiate between their claims, in which case they will be identified as “Mr Algama” or “Mrs Algama”.

3                     Mr Algama is a Sinhalese man born on 20 November 1959.  Mrs Algama is a Burgher woman who was born in December 1962.  The applicants arrived in Australia on 13 February 1996 and lodged separate applications for protection visas on 29 March 1996.  The delegate of the respondent rejected each of the applicants’ claims for a protection visa on 28 May 1997.  Their applications were heard together by the Tribunal on 8 February 1999, and their applications for review in this Court were heard together.

claims made before the tribunal

4                     Before the Tribunal, the applicants claimed a well-founded fear of persecution arising out of their affiliation with the opposition United National Party (UNP), their close association with a former senior military figure, Major General Lakshman Algama, and their close association with a Tamil friend who was suspected of supporting the Liberation Tigers of Tamil Eelam (LTTE).

5                     Mr Algama claimed to have been a member of the UNP since 1985, and to have been active in organising support for the party.  He claimed that during and after the 1994 general elections in Sri Lanka he suffered harassment and, in one instance, assault by supporters of the Peoples’ Alliance (PA) party.  The PA subsequently won the general election and formed the national government of Sri Lanka.

6                     The applicants also claimed that they were persecuted due to their kinship with Major General Algama.  Major General Algama, it was claimed, was Mr Algama’s mother’s cousin, and was very close to the applicants, visiting their residence often.  Major General Algama was also a UNP supporter and was allegedly the subject of a political vendetta by the PA.

7                     The applicants claimed that Major General Algama was accused of the killings and disappearance of PA members, and also of plotting a coup to overthrow the PA Government.

8                     The applicants claimed that they were arrested at the end of August 1994 by the Piliyandala police, questioned in connection with the alleged coup plot and held for a week.  They were also accused of holding meetings in their house and planning to disrupt the forthcoming elections.

9                     According to the applicants’ claims, in September 1995 Major General Algama called Mr Algama and told him that the government was trying to fabricate evidence against him.  Mr Algama subsequently went into hiding and did not see Mrs Algama again until they left for Australia.

10                  In November 1995 the police came to Mrs Algama asking about her husband’s whereabouts.  She said he was away on business, and the police detained her saying that they would release her when her husband surrendered himself.  Mrs Algama was questioned about Major General Algama, and was also told by the police interrogators that they knew about her Tamil friend and that her husband used to pass on information to the Tamils from Major General Algama.  Mrs Algama said that she was raped by the police.  She was also hit and her tooth broken.  She was released because she had a very high fever and could not tell the police anything.  She claimed that the following day she took valium tablets in an attempt to commit suicide.  Shortly afterwards she consulted a gynaecologist who said he could not treat her in relation to the rape unless she had a police report.  He referred her to a psychiatrist.

11                  On 26 December 1995 some people claiming to be from the army and seeking her husband turned up at the house.  Mrs Algama made a police report at the Mt Lavinia Police Station concerning this incident.

12                  The alleged Tamil connection arose from the applicants’ contact with a Tamil friend called Naison.  He was a friend of Mrs Algama’s deceased step-brother and was claimed to be a business partner of Mr Algama.  Mr Algama claimed that Naison had managed a farm in Nochchiagama in which Mr Algama owned an interest.  That interest had been given to Mr Algama in exchange for a sum of money he had loaned Naison.  When Naison came to Colombo he would stay with the applicants.  Naison came to the house after they had been arrested the first time in August 1994.  Prior to that in about 1993, Naison asked Mrs Algama to help acquire prosthetic limbs for boys who had lost limbs.  She contacted Major General Algama and he arranged for this to be done.  The boys stayed with Mrs Algama for about a week.  Mrs Algama said that the police had approached her father after she left for Australia suggesting that she was helping the LTTE because the boys she assisted were Tamils from the north.  Towards the end of 1995 Naison contacted Mrs Algama and said that he was having trouble with the police.  Mrs Algama was asked about Naison when she was detained in November 1995.

13                  The Tribunal referred to a number of letters which the applicants had submitted in support of their claims.  They included:

·        A referral dated 22 November 1995 from Mrs Algama’s gynaecologist, Dr Palitha Kumarasinghe, to a psychiatrist.

·        A letter dated 17 December 1995 from Sarath Kongahage, the leader of the Sri Lanka Mahajana Party (SLMP) and member of Parliament, stating that Mr Algama had been an active member of the party since 1995, that he was related to Major General Algama, and that Mr Algama and his family had undergone immense difficulties and harm to person and property.

·        A letter dated 23 May 1996 or 1997 from John Amaratunga, a member of Parliament, who said that Mr Algama was a keen supporter of the UNP and had been greatly harassed and victimised since the PA had come to power.

·        A letter dated 3 June 1997 from L.H. Munasinghe who said that Mr Algama was compelled to stay with him from September 1995 to February 1996.

·        A letter dated 23 May 1997 from an organiser, Mr Wimal Geegarage, of the SLMP, outlining some background to political events from 1987 till 1994 and indicating that Mr Algama was involved in the SLMP and had undergone threats and injuries.

14                  The Tribunal twice sought advice from the Department of Foreign Affairs and Trade (DFAT) in Colombo about the letters from Mr Amaratunga and Mr Kongahage, the two members of Parliament.  DFAT advised on 2 August 1999 that neither of the members of Parliament could specifically confirm the contents of their letters.  In response the applicants obtained a further letter from Mr Amaratunga indicating that he did not recall discussing the case with Australian officials or denying the contents of the earlier letter.  He confirmed the contents of the earlier letter about the applicants.

15                  The following further documentary material was also submitted to the Tribunal by the applicants:

·        A copy of a police report dated 27 December 1995 concerning the complaint made by Mrs Algama about the men in uniform who came to her house on 26 December 1995.

·        A further letter dated 7 June 1997 from Dr Kumarasinghe indicating that Mrs Algama had consulted her about rape.

·        A letter dated 1 June 1997 from an attorney friend of Mrs Algama, Ms Samaratunge, stating that the applicants had been threatened but had refused her offer of help because they were afraid.

·        A letter dated 31 October 1997 from a dentist in Melbourne indicating that he had treated Mrs Algama for a blackened tooth caused by impact from a rifle butt.

·        A report dated 12 June 1997 from Mrs Maritza Thompson, a psychologist coordinator with the Refugee Mental Health Network at the Royal Melbourne Hospital (the psychologist’s report).  The report indicated that the applicants both suffered from Post Traumatic Stress Disorder (PTSD).

16                  During the Tribunal hearing the applicants’ solicitor raised a question of apprehended bias.  In setting out the claims of the applicants in each decision the Tribunal said of this matter:

“After a lunch break in the Tribunal hearing, the applicant’s adviser indicated that she had concerns about apprehended bias on my part as Tribunal member.  The first related to apprehended bias because I had set out at the beginning of the hearing that there were credibility issues to address in this case.  The second point of apprehended bias was that I had previously been the State Director of DIMA Victoria at the time the initial decision by the decision maker in DIMA was made. 

I did not accept these claims and proceeded with the case.”

17                  In outlining the claims of the applicants, the Tribunal then referred to a number of matters which had arisen after the conclusion of the hearing on 8 February 1999 and before the date of the decision on 28 April 2000.  In the course of the reasons the Tribunal explained that the reason for the delay was that the Tribunal member had “been on extended sick leave and graduated return to work as the result of an injury”. 

18                  The first matter dealt with in the post hearing material was a submission dated 14 April 2000 from the applicants’ solicitor concerning the killing of Major General Algama at a UNP meeting on 18 December 1999 in Colombo.  The case put by the solicitor by reference to newspaper cuttings from Sri Lanka and Australia was that Major General Algama was seen by the Government as assisting the opposition and that he was targeted as a result.  The Tribunal referred to other newspaper reports which blamed LTTE terrorism for the killing.  The attack which resulted in the killing of Major General Algama and others at the UNP rally coincided with an attack at an election rally in central Colombo which injured the Sri Lankan president, Chandrika Kumaratunga.

19                  The Tribunal then set out the information which had been obtained by the Tribunal from DFAT as follows:

“In a report to the Minister’s delegate in Cable CL524 of 16 March 1997,  DFAT indicated

WITH REFERENCE TO THE PRESIDENTIAL COMMISSION INTO ELECTION EVE ACTIVITIES (TO DISRUPT THE PARLIAMENTARY POLL OF AUGUST 1994 AND THE LOCAL AUTHORITIES POLLS IN TEE (sic) EASTERN PROVINCE AND VAVUN1YA. DISTRICT) AND A COUP ATTEMPT ‑ THE COMMISSION HAS NOT CONCLUDED, SO IT IS NOT POSSIBLE TO OBTAIN INFORMATION ABOUT THE OUTCOME. TO DATE, 110 WITNESS HAVE GIVEN EVIDENCE TO THE COMMISSION. BRIGADIER LUCKY ALGAMA WAS ONE OF MANY SENIOR GOVERNMENT AND DEFENCE FORCES PERSONNEL WHO GAVE EVIDENCE, INCLUDING THE RECENTLY RETIRED ARMY COMMANDER AND THE FORMER ELECTIONS COMMISSIONER.

ALGAMA WAS CHIEF OF STAFF OF THE ARMY AT THE TIME OF THE ELECTION.HE RETIRED ALMOST A YEAR AFTER THE GENERAL ELECTION (ON REACHING RETIREMENT AGE) ON 2 JUNE 1995 AND IS NOW ENGAGED IN PRIVATE ENTERPRISE IN COLOMBO, WITH A MERCANTILE COMPANY CALLED ‘TOP MARK CONTAINERS'.    

ACCORDING TO THE SECRETARY OF THE COMMISSION, NO RELATIVES OF ANY WITNESSES TO THE COMMISSION WERE EVER QUESTIONED IN RELATION TO THE WITNESSES' ACTIVITIES.

WE WERE UNABLE TO VERIFY MRS ALGAMA’S ARREST AND DETENTION IN NOVEMBER 1995.

THERE IS NO POLICE TRAINING SCHOOL AT AVISSAWELA.

WE ARE STILL TRYING TO VERIFY THE CLAIMS REGARDING THE IMPERIAL RESTAURANT AND WILL PROVIDE THE INFORMATION AS SOON AS POSSIBLE.

Following the hearing, The Tribunal put a number of other matters which had arisen during the hearing to DFAT, and the post responded in report 0142 of 11 March 1999 as follows

QUESTION A ‑ IS THERE ANY RECORD OF DETENTIONS OF BOTH MR AND MRS ALGAMA AT THE PILIYANDALA POLICE STATION IN LATE AUGUST 1994? REFTEL ADVISED THERE WAS NO RECORD OF MRS ALGAMA'S DETENTION IN NOVEMBER 1995.

ANSWER ‑ THE DEPARTMENT CANNOT CHECK WHETHER THERE IS ANY RECORD OF DETENTION OF MR AND MRS ALGAMA WITHOUT REVEALING THEIR NAMES TO POLICEMAN ON DUTY AT THE PILIYANDALA POLICE STATION.

IF MRS ALGAMA WAS ARRESTED UNDER THE EMERGENCY REGULATIONS (IF THE ARREST WAS ALLEGEDLY MADE IN RELATION TO SUSPECTED LTTE INVOLVEMENT), THE ICRC SHOULD BE ABLE TO VERIFY HER ARREST. IF SHE RECALLS BEING REGISTERED BY THE ICRC DURING AN ICRC VISIT TO THE PILIYANDALA POLICE STATION, SHE CAN ASK THE ICR.C TO PROVIDE A DETENTION CERTIFICATE. A DETENTION CERTIFICATE WILL ONLY BE PROVIDED IF MRS ALGAMA MAKES A FORMAL REQUEST TO THE ICRC.

PLEASE NOTE THAT O.CL524 ADVISED THAT THE POST WAS UNABLE TO VERIFY MRS ALGAMA’S ARREST AND DETENTION IN NOVEMBER 1995, NOT THAT THERE WAS NO RECORD OF HER DETENTION.

QUESTION B - IS THERE ANY INFORMATION TO SUGGEST THAT THE POLICE IN LATE 1994 OR SUBSEQUENTLY WOULD ACT TO DETAIN UNP PEOPLE UNLAWFULLY FOR THE PA GOVERNMENT ON THE PRETEXT OF LTTE INVOLVEMENT OR TO HARASS THEM IN RELATION TO INVESTIGATIONS ABOUT SENIOR UNP SUPPORTERS, SUCH AS MAJOR GENERAL ALGAMA?

ANSWER ‑ THE DEPARTMENT HAS NOT HEARD OF INCIDENTS WHERE THE POLICE HAVE DETAINED UNP SUPPORTERS UNLAWFULLY FOR THE PA GOVERNMENT ON THE PRETEXT OF LTTE INVOLVEMENT. HOWEVER, THERE HAVE BEEN CASES OF TAMIL PEOPLE BEING ARRESTED BY THE POLICE ON THE BASIS OF FALSE INFORMATION LINKING THEM TO THE LTTE PROVIDED BY PEOPLE WISHING TO SETTLE A PERSONAL SCORE, OR WHERE INACCURATE INFORMATION IS PASSED TO POLICE BY OVER‑ZEALOUS, SECURITY CONSCIOUS CIVILIANS.

UNTIL MAJOR GENERAL ALGAMA RETIRED IN JUNE 1995,HE WAS THE CHIEF OF STAFF OF THE ARMY. SERVING ARMY OFFICERS ARE NOT PERMITTED TO ENGAGE IN POLITICAL ACTIVITES, SO IT IS PERHAPS MISLEADING TO DESCRIBE HIM AS HAVING BEEN A ‘SENIOR UNP SUPPORTER' BEFORE THAT TIME. SINCE HE RETIRED, HE HAS ALIGNED HIMSELF WITH THE UNP. HE OCCASIONALLY APPEARS ON TELEVISION TALK SHOWS OFFERING HIS OPINION OF THE CURRENT MILITARY SITUATION. THE COMMISSION OF INQUIRY THAT QUESTIONED MAJOR GENERAL ALGAMA HAS NOW WOUND UP AND THE REPORT HAS BEEN PRESENTED TO THE PRESIDENT. THE COMMISSION, WHICH WAS ESTABLISHED UNDER THE ORDINARY LAW FOR ESTABLISHING COMMISSIONS, HAD THE POWER TO INQUIRE AND MAKE RECOMMENDATIONS. GIVEN THAT MAJOR GENERAL ALGAMA SIMPLY APPEARED AS A WITNESS BEFORE THE COMMISSION, AND THE DEPARTMENT HAS NO INFORMATION THAT HE WAS HARASSED IN RELATION TO THE COMMISSION, IT SEEMS UNLIKELY THAT ANYONE ASSOCIATED WITH HIM WOULD HAVE BEEN. IT IS IMPROBABLE THAT MAJOR GENERAL ALGAMA, AS A PROMINENT, POWERFUL AND VERY SENIOR MEMBER OF THE SECURITY FORCES (NOW RETIRED), OR ANY PERSON KNOWN TO BE A MEMBER OF HIS FAMILY, WOULD BE TARGETED FOR HARASSMENT BY THE POLICE. AS NOTED IN O.CL524, THE SECRETARY OF THE COMMISSION INFORMED US THAT NO RELATIVES OF ANY WITNESS TO THE COMMISSION WERE EVER QUESTIONED IN RELATION TO THE WITNESS' ACTIVITIES.

POLITICAL VIOLENCE IN SRI LANKA TYPICALLY OCCURS AROUND ELECTION TIME, MAINLY IN THE LEAD‑UP TO VOTING. THE AUGUST 1994 PARLIAMENTARY.ELECTIONS AND THE NOVEMBER.1994 PARLIAMENTARY ELECTIONS, WHICH WERE MONITORED BY INTERNATIONAL OBSERVERS, WERE REGARDED AS FREE AND FAIR AND THERE WERE FEW INCIDENTS OF VIOLENCE ON ELECTION DAY. IN LOCAL GOVERNMENT AND PROVINCIAL COUNCIL ELECTIONS SINCE THEN, INCIDENTS OF VIOLENCE CONTINUE TO OCCUR. VIOLENCE, WHICH ACCORDING TO ELECTION MONITORS, RANGES FROM 'MISCHIEF TO MURDER', USUALLY TAKES PLACE BETWEEN GROUPS PUTTING UP POSTERS, BANNERS AND OTHER POLITICAL DECORATIONS AND AT LARGE POLITICAL RALLIES. MEANWHILE, SENIOR UNP SUPPORTERS CONTINUE TO CAMPAIGN OPENLY AND VIGOROUSLY FOR ELECTION IN SRI LANKA. THE UNP IS STILL THE LARGEST AND BEST‑ORGANISED POLITICAL PARTY IN SRI LANKA, AND SOME OF THE MOST PROMINENT MEMBERS OF THE SRI LANKAN COMMUNITY ARE ACTIVE SUPPORTERS.

ONE OF THE PA’S MAIN CAMPAIGN PLATFORMS IN 1994 WAS AN END TO THE POLITICAL VIOLENCE THAT HAD INCREASED UNDER THE UNP GOVERNMENT. THE EXTENSIVE COVERAGE IN THE MEDIA ABOUT ELECTION VIOLENCE DURING A RECENT PROVINCIAL COUNCIL ELECTION WAS OF CONSIDERABLE CONCERN TO THE PRESIDENT, WHO HAD CAMPAIGNED STRONGLY AGAINST ELECTION VIOLENCE DURING THE 1994 PARLIAMENTARY ELECTION AND WAS COMMENDED FOR CONTROLLING POST‑ELECTION VIOLENCE. THE PRESIDENT HAS PUBLICLY WARNED HER PARTY MEMBERS AND SUPPORTERS THAT ACTION WILL BE TAKEN AGAINST ANY FOUND RESPONSIBLE FOR VIOLENCE IN THE FORTHCOMING PROVINCIAL ELECTIONS.

QUESTION C – IS THERE ANY EVIDENCE THAT POLICE STATIONS SUPPORT ONE OR OTHER PARTY AROUND ELECTION TIMES, OR AT OTHER TIMES, AND ARE CERTAIN POLICE STATIONS KNOWN TO BE UNP SUPPORTERS OR PA SUPPORTERS?  IS THE PILIYANDALA POLICE STATION KNOWN TO BE A STATION THAT SUPPORTS THE PA PARTY?

ANSWER - THE EXPECTATION THAT THE POLICE FORCE SHOULD SUPPORT THE GOVERNMENT OF THE DAY APPEARS TO BE A PART OF POLITICAL CULTURE IN SRI LANKA. IT IS ARGUABLE THAT POLICE ARE SOMETIMES RELUCTANT TO ACT IN A WAY WHICH MIGHT UPSET THE GOVERNMENT OF THE DAY, BECAUSE THEY ARE AFRAID THAT THEY MAY 'PUNISHED' BY BEING TRANSFERRED TO SERVE IN A CONFLICT AREA. IN A RECENT PROVINCIAL COUNCIL ELECTION, THE POLICE WERE CRITICISED FOR FAILING TO TAKE ACTION AGAINST POLITICAL THUGGERY. ON THE OTHER HAND, ELECTION MONITORS ALSO COMMENDED CERTAIN POLICE OFFICERS FOR TAKING ACTION AGAINST THUGS.

IN THE EARLY STAGES AFTER THE 1994 PARLIAMENTARY ELECTION THE POLICE FORCE WAS WIDELY PERCEIVED TO BE PRO‑UNP. THE DEPARTMENT IS NOT AWARE OF ANY POLICE STATION HAVING BEEN KNOWN AS A 'PA POLICE STATION'.

QUESTION D ‑ IS THERE ANY INDICATION THAT A POLICE STATION WOULD REFUSE TO TAKE A COMPLAINT FROM A PERSON WHO CLAIMED THEY WERE HARASSED IN POST ELECTION VIOLENCE, IE A UNP SUPPORTER HAVING THEIR CAR BURNT AND BEING BEATEN UP BY PA SUPPORTERS?

ANSWER ‑ SOME UNP SUPPORTERS CLAIM THAT THIS OCCURS. INCIDENTS HAVE BEEN REPORTED IN THE MEDIA. ELECTION VIOLENCE IS AN ISSUE WHICH RECEIVES EXTENSIVE COVERAGE IN THE SRI LANKAN MEDIA, MUCH OF WHICH IS CONTROLLED BY UNP SUPPORTERS.

QUESTION E ‑ CAN POST COMMENT ON THE CASE OF A WOMAN DETAINED BY THE MOUNT LAVINIA POLICE FOR 4 MONTHS, AND THE SUBSEQUENT DISAPPEARANCE OF HER CHILDREN, INCLUDING HER ETHNICITY AND THE REASON FOR DETENTION (ATTACHMENT 1 TO OUR MEMORANDUM).

ANSWER ‑ MRS N MAHESWARI IS A TAMIL WOMAN FROM THE VANNI REGION WHO WAS ARRESTED ON 25 APRIL 1997 IN MOUNT LAVINIA (ADJOINING COLOMBO). SHE WAS ARRESTED UNDER THE EMERGENCY REGULATIONS ON SUSPICION OF HAVING ASSISTED THE LTTE. SHE IS NOW REMANDED AT WELIKADE PRISON. FOLLOWING MRS MAHESWARI'S ARREST, HER HUSBAND, WHO IS ALLEGED TO HAVE ASSISTED THE LTTE FOR FINANCIAL GAIN, FLED TO THE LTTE‑CONTROLLED VANNI REGION. THE CHILDREN REMAINED IN DETENTION WITH THEIR MOTHER UNTIL FEBRUARY 1998, BECAUSE NO RELATIVES CAME FORWARD TO TAKE CARE

OF THEM. ON 9 FEBRUARY 1998, THE CHILDREN WERE REMOVED, APPARENTLY TO BE PRESENTED AT THE JUVENILE COURT FOR AN ORDER RELATING TO THEIR CARE.  THE FORUM FOR HUMAN DIGNITY, A LEGAL AID NGO,  MADE A COMPLAINT TO THE ANTI‑HARASSMENT COMMITTEE (AHC) ON 27 NOVEMBER 1998 CONCERNING THE DISAPPEARANCE OF THE CHILDREN. THE AHC TRACED THE CHILDREN AND ON 30 DECEMBER 1998 INFORMED THE FORUM FOR HUMAN DIGNITY THAT THE CHILDREN WERE IN VAJIRA CHILDREN’S HOME IN KOTTE (NEAR COLOMBO), WHERE THEY HAD BEEN ADMITTED ON 7 APRIL 1998. FORUM FOR HUMAN DIGNITY LAWYERS HAVE SINCE VISITED THE CHILDREN AT THE HOME.

QUESTION F ‑ IS THERE A RECORD OF A POLICE REPORT ENTERED BY MRS ALGAMA TO THE MOUNT LAVINIA POLICE STATION ON 27 DECEMBER 1995 ABOUT UNKNOWN MEN APPROACHING HER HOUSE (ATTACHMENT 2)?

ANSWER - GRATEFUL ADVICE ON WHETHER WE CAN DISCLOSE MRS ALGAMA’S DETAILS TO THE MT LAVINIA POLICE STATION.

QUESTION G ‑ CAN POST COMMENT ON AUTHENTICITY OR OTHERWISE OF COPIES OF LETTERS PURPORTING TO BE FROM MESSRS AMARTUNGA [sic] AND KONGAHAGE ATTACHMENTS 3 AND 4)?

ANSWER ‑ THE DEPARTMENT FORWARDED BY FAX TO THE RRT A SAMPLE OF JOHN AMARATUNGAIS [sic] SIGNATURE, WHICH HE PROVIDED IN RELATION TO A PREVIOUS, UNRELATED MATTER. THIS SAMPLE COULD BE USED TO VERIFY THE GENUINENESS OF THE SIGNATURE ON THE LETTER. OUR ONLY COMMENT ON THIS LETTER, IS THAT THE LANGUAGE SEEMS VERY AWKWARD FOR A LAWYER WHO COMPLETED HIS SECONDARY AND TERTIARY EDUCATION IN ENGLISH.

FOLLOWING THE RRT'S INSTRUCTION NOT TO APPROACH THE WRITER'S DIRECT TO VERIFY THE LETTERS, THE DEPARTMENT SHOWED A COPY OF MR KONGAHAGE'S SIGNATURE TO A MUTUAL CONTACT. HE SAID IT LOOKED LIKE MR KONGAHAGE'S SIGNATURE.

AS A GENERAL COMMENT, THE DEPARTMENT IS AWARE FROM PAST DISCUSSIONS WITH POLITICAL CONTACTS THAT POLITICIANS AND OTHER PROMINENT SRI LANKANS ARE FREQUENTLY ASKED AND AGREE TO PUT THEIR NAMES TO LETTERS WRITTEN BY OTHER PEOPLE, EVEN WHERE THEY HAVE NO DIRECT KNOWLEDGE OF THE MATTERS DESCRIBED IN THE LETTERS. TAMIL CONTACTS, IN PARTICULAR, TELL US THEY ARE UNDER SOME PRESSURE WITHIN THEIR COMMUNITY TO ATTEST TO PEOPLE BEING VICTIMS OF HARASSMENT.

THE DEPARTMENT WOULD LIKE TO SUGGEST THAT IN CASES WHERE AN APPLICANT SUBMITS A LETTER FROM A FRIENDLY CONTACT IN SUPPORT OF A CLAIM, IT WOULD BE APPROPRIATE FOR THE POST TO APPROACH THE WRITER TO VERIFY THE LETTER.

Following this advice, the Tribunal sought permission from the applicants to approach the writers of the letters.  The post responded with the following information in report 0191 of 2 August 1999. 

BACKGROUND ‑ IN VIEW OF REPORT DFAT142 PROVIDED TO THE RRT BY THE DEPARTMENT, THE TRIBUNAL SOUGHT ADDITIONAL ADVICE CONCERNING THE ALGAMA FAMILY. THIS DEPARTMENT WAS ADVISED THAT THE APPLICANT AGREED THAT THE FOLLOWING ADDITIONAL QUESTIONS CAN BE PUT TO MR AMARATUNGA AND MR KONGAHAGE TO VERIFY THE AUTHENTICITY OF THE LETTERS PROVIDED TO MR ALGAMA.

QUESTION ONE ‑ THE BACKGROUND TO HOW THEYCAME TO SIGN THESE LETTERS?

ANSWER ONE ‑ UNP MP, MR JOHN AMARATUNGA, DOES NOT RECALL HOW HE CAME TO SIGN THE LETTERS IN QUESTION. HE SAID HE SIGNS A NUMBER OF LETTERS SO IT IS FEASIBLE THAT HE MAY HAVE SIGNED IT. MR KONGAHAGE REFUSED TO COMMENT WHEN AN OFFICER OF THE DEPARTMENT TELEPHONED HIM, ONLY TO SAY THAT HE TAKES NO RESPONSIBILITY FOR THE CONTENT OF THE LETTER.

QUESTION TWO ‑ THEIR KNOWLEDGE OF WHAT HARDSHIP OR HARASSMENT THEY BELIEVE THE ALGAMAS EXPERIENCED.

ANSWER TWO ‑ MR AMARATUNGA RECALLS THAT GENERAL ALMAGA [sic] EXPERIENCED SOME DIFFICULTIES AT THE TIME OF THE COMMISSION BUT COULD NOT REALLY COMMENT ON THE EXPERIENCES OF HIS RELATIONS. ALTHOUGH HE KNOWS THE GENERAL PERSONALLY (THEY ONCE WORKED TOGETHER IN THE DEFENCE MINISTRY), HE HAD NO SPECIFIC KNOWLEDGE OF ANY HARDSHIP OR HARASSMENT EXPERIENCED BY THE ALMAGA [sic] FAMILY. MR KONGAHAGE DID NOT WANT TO COMMENT ON THE EXPERIENCES OF THE ALMAGA [sic] FAMILY.

BACKGROUND TO QUESTION THREE: IF MR AMARATUNGA KNOWS THE APPLICANTS TO BE MEMBERS OF THE UNP WE NOTE ALSO THAT MR KONGAHAGE HAS INDICATED THAT THE APPLICANT WAS A MEMBER OF THEIR PARTY SINCE 1985. WHEN DISCUSSED WITH HIM, HE SAID THE UNP AND THE SLMP HAD MERGED AND SO IT WAS POSSIBLE TO BE A MEMBER OF BOTH PARTIES.

QUESTION THREE ‑ CAN YOU COMMENT ON THIS PLEASE?

ANSWER THREE ‑ IT IS FEASIBLE THAT THE ALMAGAS [sic] HAVE BEEN

MEMBERS OF BOTH THE SLMP AND THE UNP. THERE WAS A MAJOR SPLIT IN THE SLMP WITH SOME MEMBERS JOINING THE UNP AND OTHER MEMBERS JOINING PARTIES WITHIN THE RULING COALITION.

COMMENT: THIS REPORT SHOULD BE READ IN CONJUNCTION WITH DFAT142.”

20                  The Tribunal then referred to independent evidence in relation to a number of relevant issues raised by the claims of the applicants.

21                  First, the Tribunal referred to the United States’ Department of State Report on Human Rights Practices in Sri Lanka for 1997.  This report described Sri Lanka as a parliamentary democracy and referred to the election of the PA in August 1994 which ended the 17 year rule of the UNP.  It referred to violence associated with local elections in March 1994 but concluded that the violence was simple hooliganism and thuggery which did not seem to be organised except at the local level by some groups of party activists. 

22                  The Tribunal then addressed the evidence relating to the legal protection available in Sri Lanka against arrests in violation of basic human rights.  It referred to the existence of an independent judiciary and a functioning justice system.  The report indicated that the Government generally respected the human rights of its citizens in areas not affected by the conflict with the LTTE, but in areas affected by that conflict there was evidence of continuing serious human rights abuses by the security forces.

23                  The Tribunal then reviewed the independent evidence concerning harassment of UNP supporters by the Government.  The Tribunal referred to a DFAT cable dated 30 December 1996 which was consistent with the January 1998 United States’ Department of State Report on Human Rights in Sri Lanka.  The DFAT cable stated:

“There have been cases reported in the local papers of UNP members, at the local government level, being involved in violent incidents with supporters of the People's Alliance (PA), particularly around election times.  However, none of these reports and claims allege that the government itself is supportive of, or even turning a blind‑eye to, violent actions by PA members or supporters against UNP members.

Politics in Sri Lanka, particularly at the local government level, can be very vigorous, and political violence in Sri Lanka crosses political boundaries.  Over the years incidents of violence between supporters of different parties have been known to occur.  In the past, particularly during the Premadasa Presidency (UNP), there were allegations by opposition politicians, journalists and human rights observers of politicians that certain ruling party (UNP) politicians were involved with organised crime.

However, during both the August 1994 parliamentary elections and the November 1994 presidential elections, the People's Alliance, led by Chandrika Kumaratunga, campaigned strongly against such criminal links.  The 1994 elections, which were monitored by international observers, were regarded as free and fair and there were few incidents of violence, relative to previous elections.  There had been some fears that an opposition election victory might lead triumphant PA supporters to avenge violent incidents in the past by engaging in violence against UNP members and their supporters in the period immediately following the elections, but in the event almost no such incidents occurred.  The President has used various platforms to speak out against political violence.

…

Claims of political harassment of UNP members and supporters should be viewed with  scepticism.  There may be individual cases of political rivalries leading to violence, but all parties have equal access to the law and to police protection.”

24                  A later DFAT cable of 20 February 1998 confirmed that the situation in relation to political violence against UNP members and supporters had not changed since the previous report.

25                  Next the Tribunal referred to independent evidence on the question of persecution for association with the LTTE by reference to a DFAT cable of 19 December 1995.  The Tribunal gave a general overview of the situation in Colombo.  It noted that some inconvenience is caused to Tamils in security sweep operations.  Mostly young Tamils from the north or east would be the subject of such scrutiny.  If the person is unable to satisfactorily explain their presence in Colombo they are likely to be detained, but in about 90% of cases such people are released within a couple of days.  As to Sinhalese sympathisers of the LTTE, the Tribunal referred to advice contained in a DFAT cable of 15 December 1995 which stated that:

“LTTE sympathisers:

Neither we, nor our contacts, have heard any recent plausible reports of Sinhalese suspected of sympathising with the LTTE.  There may well have been cases of Sinhalese people who, for financial gain, have given assistance to the LTTE ‑ eg through selling arms ‑ but our contacts are unable to recall any recent examples.  There was one report that an individual connected with a recent LTTE attack in Colombo had "appeared to be a Sinhalese", but nothing further has been said on this.  Many of our contacts seemed to regard our questions on this with almost amusement.  They suggested that if a Sinhalese was caught assisting the LTTE (whether out of sympathy or for financial gain), they would be treated in the same way as a Tamil, by being prosecuted under the prevention of terrorism act.”

26                  Finally, the Tribunal addressed the situation of women in Sri Lanka by reference to the United States’ Department of State Report on Human Rights in Sri Lanka for 1999.  The report referred to constitutional equality among all citizens and to the 1995 amendments to laws relating to rape in order to deal with quite serious and pervasive forms of societal violence against women.  It also referred to administrative initiatives to increase awareness of the problem of crimes against women.

the reasoning of the tribunal

27                  The Tribunal handed down a separate decision in relation to each of the applicants.  For the purposes of the argument on review, the reasoning of the Tribunal in each decision is substantially the same.  The grounds of review pleaded by the applicants addressed reasoning common to both decisions.  Mr Gilbert of counsel appeared for both applicants, and did not differentiate between them for the purposes of submissions to the Court.

28                  The Tribunal first dealt with the claim that Mr Algama was harassed around the time of the 1994 elections, that he may have been assaulted and his car burned, and had stones and other material thrown at his house.  The Tribunal analysed the independent sources of information and concluded that there was some violence at this time, but it was “unorganised, localised and short lived, and confined to the heat of the immediate election period”.  The Tribunal accepted information that UNP supporters were not intimidated by the Government and that UNP politicians participated actively and vigorously in the political scene.  The Tribunal accepted that police may not do anything about such sporadic incidents but concluded:

“I do not accept that any of the evidence indicates that election incidents results [sic] in on-going vendettas from police or from the government, nor that police would then harm people because of being from a major Sinhalsese political party which has lost the elections.”

29                  Finally, on this issue the Tribunal said:

“I do not accept that any treatment the applicant [Mr Algama] might have received in the past for his activities with the UNP was of sufficient harm to constitute persecution in the Convention sense.  For this reason, and having considered the country information, I do not accept that there is a real chance that the applicant would face treatment amounting to persecution in the future for reason of his UNP activities or political opinion.”

30                  A conclusion expressed in similar terms appears in the decision relating to Mrs Algama.

31                  Then the Tribunal turned to the claim that the applicants were arrested and detained for a week by the police in August 1994.  Their claim was that the police deliberately set out to persecute them because there was a suspected coup attempt to overturn the Government, because of their close relationship with Major General Algama, and because they were strong UNP supporters.  The Tribunal did not accept that either of the arrests occurred.  The Tribunal then set out its reasons for this conclusion.

32                  The Tribunal accepted that Major General Algama was involved in an inquiry into a possible attempted coup around the time of the 1994 elections.  It also accepted that Major General Algama was Mr Algama’s mother’s first cousin.  However, the Tribunal did not accept that the applicants were as close to Major General Algama as they claimed.

33                  The Tribunal reviewed reports from DFAT dating from March 1997, March 1999 and August 1999 concerning Major General Algama’s involvement with the Commission of Inquiry.  It then noted that none of the newspaper reports provided to the Tribunal indicated any harassment of any person in relation to the Commission of Inquiry.  Further, the consistent advice from DFAT was that the General himself and his family had never been harmed as a result of a connection with an alleged coup plot.  He chose to retire at normal retirement age.  After his retirement in June 1995 he participated publicly as a supporter of the UNP and followed a career in private enterprise with a high profile through television publicity in Sri Lanka.

34                  The Tribunal then rejected the claim that the applicants may have been harassed because the authorities thought that their house had been used to plan the alleged coup.  The Tribunal found this implausible and observed that if the applicants had been suspected of involvement in the alleged coup plot and were harassed to obtain information about it, then they would have been required to give evidence before the Commission of Inquiry. 

35                  Further, Major General Algama was a person without fear of authority.  He had been outspoken about matters concerning his activities and had, for instance, refused to be questioned at CID Headquarters but rather required the questioning to be at his home.  Despite his control of affairs, Major General Algama did not draw attention to the arrest claimed by the applicants in August 1994.

36                  The Tribunal observed that the claims of arrest were particularly implausible because, despite the claimed close relationship with him, Major General Algama at no time provided any letters of support about the applicants’ claimed harassment during their applications for protection visas.

37                  The Tribunal then addressed the information provided by the applicants after the hearing concerning Major General Algama’s activities in the border regions of the war in September 1999 and his death in a bomb blast at a UNP rally in December 1999.  The applicants claimed that Major General Algama was targeted by the killers.  They contended that the evidence was not conclusive in demonstrating that the LTTE authorised the attack and they argued that the security forces may have been involved.  The Tribunal concluded that this scenario was speculative and not supported by the evidence.  It concluded that the weight of the evidence was that the blast was orchestrated by the LTTE.  The Tribunal did not accept that there could have been such a coincidence of events that the LTTE planned one attack on the PA rally and others planned another attack on the UNP rally at about the same time.

38                  In relation to Mrs Algama, the Tribunal concluded on this issue:

“Having considered all of this information, I do not accept that the applicant [Mrs Algama] was ever sought by the government or the police for reason of her husband’s or her own association with or relationship to Major General Algama. Given that I do not accept that the applicant and her husband had a close relationship with the General, the fact that there has been no harassment of other members of the General’s family or relatives or of other witnesses, or their families or relatives,  I do not accept that the applicant was ever arrested in August 1994 or in November 1995 as claimed.”

39                  In relation to Mr Algama, the Tribunal concluded on this issue:

“Having considered all of this information, I do not accept that the applicant [Mr Algama] was ever sought by the government or the police for reason of his association with or relationship to Major General Algama.  I do not accept the applicant and his wife were arrested and detained in August 1994 because they were accused of assisting the coup or questioned about the Major General.  As stated above country information does not support this contention.  Nor do I accept that the applicant was accused of knowledge of the coup and that it was planned at his home for the reasons provided above.”

40                  The Tribunal next dealt with the claimed persecution arising from the association with the LTTE.  The Tribunal did not accept that the claimed relationship with the Tamil friend existed at all.  It did not accept that Mr Algama had a business relationship with Naison or that Mrs Algama helped Naison in relation to the boys who had lost their limbs.  The Tribunal explained the basis for these findings.  The country information showed that those most at risk of persecution for association with the LTTE are Tamils, particularly young Tamils from the north or east.  Although the Tribunal accepted that some Sinhalese or Burgher people might be suspected of LTTE association, it found that the applicants met none of the usual characteristics of such persons.  Some actual connection with the LTTE had to be shown.  Such a connection had not been shown.  The applicants lived in Colombo far away from direct contact with the war zone.  The Tribunal observed that there were no documents evidencing the alleged business relationship with the Tamil man.  Given that Mr Algama had produced extensive tax and business records in relation to his Colombo restaurant / bar business and legal and other records are well kept in Sri Lanka, the absence of records relating to the alleged business dealings with the Tamil man pointed to the absence of any such relationship.

41                  The Tribunal next dealt separately with the issue of violence against those suspected of association with the LTTE and the rape of women in custody.  It considered the case of the rape of Krishanthi Kumaraswamy.  The Tribunal explained that this was a case of the rape and murder of a young Tamil girl in the war zone by security forces.  The Tribunal noted that the offenders had been prosecuted.  It then referred to the treatment of a woman at the Mt Lavinia Police Station in Colombo.  The Tribunal referred to the information obtained from DFAT in the answer to question E in report 0142 dated 11 March 1999 which is set out in par 19 of these reasons.  The Tribunal concluded that the case was not analogous to the case of Mrs Algama.  In particular there was no suggestion of physical mistreatment of the accused.  The Tribunal concluded:

“There is no indication in any of these articles or in any of the literature I have seen that people of the applicants’ claimed social standing and Sinhalese or Burgher background are ever treated in the way described by her [Mrs Algama].”

42                  At this point the Tribunal said:

“Given the findings made above, the country information referred to, and the applicant’s [Mrs Algama] background, that is the family’s position in society which the applicant referred to as “well-known” through their connection to a powerful and feared man, Major General Algama, ( see statement of 3 March 1999 folio 149 of RRT file),  I do not accept the applicant’s claims of police interest in her and her husband, nor do I accept her claims of arrest and rape.”

43                  The next section of the Tribunal’s reasoning is introduced by the following sentence:

“I have considered the other documentation provided in support of their claims by the applicants.”

44                  The Tribunal set out question G and the answer provided in the DFAT report 0142 dated 11 March 1999, which is set out in par 19 of these reasons, and which concerned the authenticity of the letters purporting to be from the members of Parliament, Mr Amaratunga and Mr Kongahage.  The Tribunal also set out the further report about these letters, being report 0191 dated 2 August 1999 which is also set out in par 19 of these reasons.  The Tribunal then explained that these reports had been put to the applicants and, in relation to report 0191, Mr Algama had produced a further letter addressed to the Tribunal signed by Mr Amaratunga and dated 17 October 1999 indicating that he did “not recall discussing Mr Algama’s predicament or denying the same.  I here by (sic) confirm the authenticity of the letter dated 23 May 1997 signed by me.  The contents of the said letter is true and correct.”  The applicants received no response from Mr Kongahage, the other politician contacted by DFAT.

45                  In assessing the value of these letters the Tribunal concluded:

“I have  carefully considered the response by the applicant husband to the advice put by DFAT, and the latest letter they have produced signed by Mr Amaratunga.  I have considered going back to the post to take up the matter with them again, in light of this latest letter, but I have decided not to.  I consider that DFAT provided the information as it was given to them, as they have no reason to provide a false account.  I note that the latest letter from Mr Amaratunga is carefully worded, in that he says he did not recall the discussion with DFAT, not that it did not occur.  He said the contents of the earlier letter were true and correct. His earlier letter of 23 May 1996 or 7 indicated that  Mr Algama had been “greatly harassed and victimised” since the present government came to power.  It said “ I am informed that he and his family members’  lives were threatened and ultimately he had to leave the island for his safety.”  Both of the letters signed by Mr Amaratunga were written in poor English, and DFAT noted this was unusual for a lawyer who had completed his secondary and tertiary qualifications in English.  When I look at all of the information about these letters, and advice from DFAT on this matter, including the amount of pressure politicians in Sri Lanka are under to sign letters of support for claims of harassment, ( see page 16 of this decision)  I do not place weight on either of these letters signed by Mr Amaratunga.  I consider they have been provided for the express purpose of obtaining refugee status in Australia.  I note further that the other politician approached about this matter has declined to comment on the truth of the account of harassment. Given the information above from DFAT I have not placed any weight on this letter.”

46                  The Tribunal then went on to consider the other letters provided by the applicants and concluded as follows:

“I have also carefully considered the letters from others in Sri Lanka attesting to the harassment of Mr or Mrs Algama, including letters from the applicant wife’s gynaecologist and a legal friend.  However, I consider that these letters too have been provided solely to assist the applicants in their claims.  I note, for example that the initial letter from the applicant wife’s gynaecologist spoke only of the applicant being referred for treatment to a psychologist for depression.  There are many reasons why a person might suffer depression, particularly in the months after the birth of a child. It was only after the rejection of the applicant’s claims by the Minister’s delegate that the applicants provided a further letter from the doctor indicating that he had refused to treat the applicant wife as the result of rape because she would not report it to authorities. Even if I were to accept that a doctor is legally entitled to withhold treatment for such a reason, I find that the lateness of this letter castes [sic] doubts on the veracity of the contents.  I do not accept the letter from the legal friend given that it also was provided after the initial decision by the DIMA  officer, that it was written by a friend, and that the information of arrest conflicts with the weight of other country information that Sinhalese from the applicant’s [Mrs Algama] claimed social background are not treated in this way, and that legal protection is available in Sri Lanka. I note further that the statement about the arrest and the applicant’s fear was vague, and did not specify any information surrounding the cause of this arrest, or by whom.”

47                  Shortly after this passage the Tribunal dealt with the psychologist’s report and said:

“I accept that both [Mrs Algama] and her husband appear highly stressed and that they have had a number of difficulties in their relationship.  I accept that both the husband and the wife have been diagnosed with post traumatic stress disorder and other psychological difficulties.  However, there are a range of matters which can cause such conditions, and, given that I do not accept that events occurred in Sri Lanka in the way described by the applicants and for the reasons stated by the applicants, I do not accept that their conditions have been caused by these events.”

48                  In concluding the assessment of the evidence the Tribunal said:

“Having considered all of the evidence, both individually and cumulatively, I do not accept that [Mrs Algama] was ever detained by the police as claimed for reasons of her association with her husband, her political opinion, her association with Major General Algama, or her imputed support for the LTTE. I do not accept that she or her husband is [sic] still being sought by Sri Lankan authorities for those reasons, or that her relations continue to be harassed by the authroities [sic] because they are seeking the applicant. I find that [Mrs Algama] does not have a real chance of persecution for these reasons if she were to return to Sri Lanka now or in the foreseeable future. I therefore find that [Mrs Algama] does not have a well-founded fear of persecution for reason of her imputed political opinion, her political opinion, her associaiton [sic] with her husband, her association with  Major General Algama, or her imputed LTTE support.”

49                  A similar finding is made in respect of Mr Algama.

relevant legislation

50                  The criticism of the decisions of the Tribunal was wide ranging.  It relied upon the grounds of review in ss 476(1)(a), (1)(d) with (3)(b), (1)(e), and (1)(g) with (4)(a) and (b) of the Migration Act 1958 (Cth) (the Act).  It is convenient to set out these sections at this point:

“476(1)           Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)                that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

…

(d)                that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)                that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

…

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

…

(3)       The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

…

(b)                an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

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

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

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

the grounds of review

51                  It was contended that these grounds of review arose, in various combinations, in respect of six issues dealt with by the Tribunal.  These issues are:

1.      the failure of the Tribunal to provide an invitation to the applicants to give evidence in relation to post hearing information. 

2.      the application that the Tribunal member disqualify herself for apprehended bias.

3.      the report of the psychologist. 

4.      the cause of death of Major General Algama.

5.      the way in which the Tribunal dealt with the various letters submitted on behalf of the applicants.

6.      the failure of the Tribunal to apply the “what if I am wrong” test.

Each of these issues will be dealt with in turn.

failure to provide an invitation to the applicants to give evidence in relation to the post hearing information

Argument on the Review

52                  On this issue the applicants first relied upon s 476(1)(a) and contended that the procedure which the Tribunal failed to observe was the procedure contained in s 425 of the Act. 

53                  Section 425 provides as follows:

“(1)     The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)       Subsection (1) does not apply if:

(a)        the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b)        the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

            (c)        subsection 424C(1) or (2) applies to the applicant.

(3)               If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”

54                  The applicants’ argument was set out in par 3.1 of the particulars of each of the applications filed on 13 October 2000 (the applications) as follows:

“3.1     Failure to compy with s. 425

(a)               The applicant gave evidence before the Tribunal at a hearing conducted on 8 February 1999.

(b)               The Tribunal made its decision on 28 April 2000.

(c)                In the intervening period there were a number of significant developments, and new information obtained by the Tribunal, inter alia

(i)         Department of Foreign Affairs and Trade (DFAT) information dated 11 March 1993 (CB 300-3)

(ii)               DFAT information dated 2 August 1999 (CB 309-10)

(iii)             The death of the central figure in the applicant’s claim, Major General Algama in a bomb blast in Colombo on 18 December 1999.

(d)               The extraordinary delay between the hearing and the decision, namely some 15 months, coupled with the significant developments and new information post hearing, necessitated that the Tribunal invite the applicant to appear before it to give evidence at a further hearing.

(e)                The applicant’s adviser specifically drew the Tribunal’s attention to procedural concerns regarding s. 425 in a letter dated 14 April 2000 (CB 364-70, in particular at 370), submitting, inter alia, that as the applicant’s credit had not been tested on the post hearing matters, it should be accepted.

(f)                 The Tribunal was in breach of s 425 when it proceeded to make its decision on matters which touched upon the credibility of the applicant, in the face of this submission, and without advising the applicant of its intention to do so.  The applicant did not have a genuine opportunity to give evidence.

55                  The applicants also contended that the failure to comply with s 425 was an error of law under s 476(1)(e).

Discussion

56                  In oral argument counsel for the applicants elaborated the argument.  He put forward two bases for the alleged error made by the Tribunal.

57                  First, he relied on what he described as a general principle.  The principle suggested is that the central focus of the statutory scheme is that it entitles an applicant to a “genuine opportunity” to address the issues relating to the application. 

58                  The Tribunal, it was argued, was not in a position to decide adversely to the applicant at the conclusion of the hearing in the present case on 8 February 1999.  As a result it sought further information after the hearing.  The information received was capable of reflecting on the credibility of the applicants.  The Tribunal had expressed reservations about the applicants’ credibility.  By determining the application without allowing the applicants a chance to address the newly acquired information, the Tribunal had determined the application adversely to the applicants on the basis of a finding concerning their credit and the determination was, in effect, made “on the papers”.  Such a course conflicted with the suggested general principle that an applicant’s appearance before the Tribunal entitles the applicant to a “genuine opportunity” to address issues on which the case turned, in this instance, issues relating to the applicants’ credibility and the new information before the Tribunal. 

59                  This general principle, it was contended, was enunciated in several Full Court decisions which had adopted a statement made by Sackville J as a member of the Full Court in Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315; [1999] FCA 946.

60                  Cho concerned, inter alia, the application of s 425(1)(a) in unamended form.  Section 425(1)(a) relevantly provided that:

“425(1)           Where section 424 does not apply, the Tribunal:

(a)       must give the applicant an opportunity to appear before it to give evidence;”

61                  The Court held that, in the circumstances, s 425(1)(a) did not require the Tribunal to raise adverse material with the applicant beyond the brief mention that it did make of those matters in the hearing.

62                  The majority (Tamberlin and Katz JJ) and Sackville J considered both the overall limits of the operation of s 425(1)(a) and the specific content of the obligation established by the section.  On the first aspect all members of the Court drew attention to the fact that s 425(1)(a) did not confer on the applicant an entitlement to all the requirements of natural justice.  In addressing this aspect Sackville J said at par 66:

“66      Section 425(1)(a), as its language and context make clear, is directed to ensuring that the applicant has an opportunity to appear before the RRT to give evidence, in cases where the RRT cannot decide in favour of the applicant simply on the papers.  It is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear to give evidence.  Procedural irregularities of that kind, whatever other consequences they may have, do not constitute a breach of s 425(1)(a) and thus do not provide a ground of review under s 476(1)(a) of the Migration Act.  As Tamberlin and Katz JJ have pointed out, the procedural entitlements of an applicant appearing before the RRT are carefully delineated by the Migration Act.  They plainly do not include the full panoply of procedural protections that may be available in other forums.” [Emphasis in original]

63                  This passage was adopted and applied in Muntaser Ibrahim Yousef Sheik Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 264 (Sundberg, Katz and Hely JJ) at par 9. 

64                  De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364; [2000] FCA 765 (Hill, Carr and Sundberg JJ) was another case involving the question whether the Tribunal was obliged to identify issues at the hearing and bring them to the attention of the applicant.  The question arose under the amended form of s 425(1).  The Court set out the passage from the judgment of Sackville J in Cho which appears in par 62 of these reasons and continued in par 9 as follows:

“This passage was approved by a Full Court (Sundberg, Katz and Hely JJ) in Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 264.  The 1998 amendment of s 425 did not affect the structure of the section, and in our view what was said by Sackville J aptly describes the purpose of the current section.  Adapting his Honour’s language to the amended provision, that purpose is to ensure that the applicant has an opportunity to appear before the Tribunal to give evidence and present arguments in cases where the Tribunal cannot decide in favour of the applicant ‘on the papers’.  The section is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear and give evidence and present arguments.”

65                  The concern of the judgments referred to in each of these cases was to emphasise the limits on the scope of s 425(1)(a), the previous form of the section, and s 425(1) in the amended version.  These limits are established by the words of the statute.  In Cho Tamberlin and Katz JJ at par 29 put it thus:

“In considering the extent of the requirements imposed by s 425 it is important to keep in mind that the exercise is essentially one of statutory interpretation.  The present case is not one where a question as to the extent of the requirements of the audi alteram partem rule is in issue.  Care must be taken not to confuse the question of the interpretation of s 425 according to its language with a question as to whether the full range of natural justice requirements should be injected into s 425 under the guise of giving content to an obligation to afford an ‘opportunity to give evidence’.  The exercise for the Court in this matter is to give content to the language of s 425 in its statutory context.”

66                  In Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275 (Burchett, Branson and Marshall JJ)Branson J addressed more directly the question of the change in wording between the previous and present versions of s 425.  She said at par 43:

“Following the coming into operation of the amendments to Division 4 of Part 7 of the Act effected by the Amending Act, s 425 of the Act no longer provides that the Tribunal “must give the applicant an opportunity to appear before it to give evidence.”  Instead s 425 provides that the Tribunal “must invite the applicant to appear before the Tribunal to give evidence and present arguments ….”  This change from the substantive requirement of giving the applicant an opportunity to appear before the Tribunal to the procedural requirement of inviting the applicant to appear before the Tribunal suggests an intention in the legislature to remove the statutory requirement, which had been construed as requiring the Tribunal to give an applicant a genuine and reasonable opportunity to appear before it, and to replace it with a more formal requirement.”

67                  In Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472 Wilcox J agreed with Branson J’s analysis that the amended form of s 425(1) limited the scope of the Tribunal’s obligation.  He said at par 35:

“I can think of no other reason why Parliament would have decided to substitute a requirement that the Tribunal “invite the applicant to appear” for a requirement that it “give the applicant an opportunity to appear”. Parliament must have deliberately decided the Tribunal’s obligation should be confined to the extension of an invitation, whether or not, having regard to subsequent events, that resulted in a reasonable opportunity for the applicant to appear.”

68                  Thus, the passage relied upon by the applicants from the judgment of Sackville J in Cho, which related to s 425(1)(a), and was approved in Mohammad and adopted in relation to s 425(1) in De Silva, did not establish a principle that the section conferred a right on the applicants to a “genuine opportunity” to appear and give evidence before the Tribunal.  Rather, the passages were concerned to emphasise certain limits on the rights of applicants appearing before the Tribunal. 

69                  The views expressed by Branson J in Mohammad and Wilcox J in Xiao establish that s 425(1) was inserted by Parliament with the intention of limiting the rights of applicants to the receipt of an invitation to appear and give evidence, and to make it clear that the obligation on the Tribunal was confined to extending such an invitation, and did not extend to providing applicants with a genuine opportunity to be heard.

70                  Thus, the applicants claim that under s 425(1) they were entitled to a “genuine opportunity” to appear must fail.

71                  The second basis of the argument that the Tribunal acted in breach of s 425(1) relied upon a particular construction of that section.

72                  For the purpose of understanding this second argument it is necessary to see s 425(1) in the context of ss 424, 424A, 424B and 424C which were inserted in their present form by the Migration Legislation Amendment Act (No.1) 1998 (Cth) (the Amendment Act).  These sections commenced operation on 1 June 1999.  They provide:

“424    Tribunal may seek additional information

(1)               In conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)               Without limiting subsection (1), the Tribunal may invite a person to give additional information.

(3)               An invitation to an applicant must be given to the applicant by one of the methods specified in section 441A.  However, this subsection does not apply if the applicant is in immigration detention.

424A   Applicant must be given certain information

(1)               Subject to subsection (3), the Tribunal must:

(a)               give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)               ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)                invite the applicant to comment on it.

(2)               The invitation must be given to the applicant by one of the methods specified in section 441A.  However, this subsection does not apply if the applicant is in immigration detention.

(3)               This section does not apply to information:

(a)               that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)               that the applicant gave for the purpose of the application; or

(c)                that is non-disclosable information.

424B   Invitation to give additional information or comments

(1)               If a person is:

(a)               invited under section 424 to give additional information; or

(b)               invited under section 424A to comment on information;

the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances.

(2)               If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

(3)               If the invitation is to give information or comments at an interview, the interview is to take place:

(a)               at the place specified in the invitation; and

(b)               at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

(4)               If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.

(5)               If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:

(a)               a later time within that period; or

(b)               a time within that period as extended by the Tribunal for a prescribed further period;

and then the response is to be made at an interview at the new time.

424C   Failure to give additional information or comments

(1)               If a person:

(a)               is invited under section 424 to give additional information; and

(b)               does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the additional information.

(2)               If the applicant:

(a)               is invited under section 424A to comment on information; and

(b)               does not give the comments before the time for giving them has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s view on the information.”

73                  Also, for the purpose of understanding this argument it is necessary to further examine the facts surrounding the acquisition of further information by the Tribunal after the hearing.

74                  The Tribunal sent a copy of the DFAT report dated 11 March 1999 which is set out in par 19 of these reasons to the solicitors for the applicants by a letter dated 1 April 1999.  By a letter dated 26 April 1999 from the solicitors for the applicants to the Tribunal, the applicants responded to the report.  The response was a written statement from Mr Algama commenting on each question and answer in the report.

75                  The Tribunal sent a copy of the DFAT report dated 2 August 1999 which is also set out in par 19 of these reasons to Mrs Algama by a letter dated 7 October 1999.  The same form of letter was sent to Mr Algama on the same date.  Their solicitor replied by letter dated 26 October 1999 and enclosed a statutory declaration made by Mr Algama on 26 October 1999 concerning his further attempts to verify the letters provided by the two members of Parliament, Mr Amaratunga and Mr Kongahage. 

76                  Then on 23 December 1999 the solicitor for the applicants wrote to the Tribunal advising that Major General Algama was killed on 18 December 1999, and contended that the facts of the assassination as described in newspaper reports which were enclosed showed that Major General Algama was personally targeted in the attack.  This confirmed, it was submitted in the letter, that the applicants would be at risk if they returned to Sri Lanka.

77                  On 20 March 2000 the Tribunal wrote to Mr Algama enclosing three newspaper articles concerning Major General Algama’s death.  The Tribunal suggested that the articles indicated that Major General Algama was killed as part of an LTTE terrorist plan directed at disrupting the presidential poll.  The same form of letter dated 21 March 2000 was sent to Mrs Algama.  The solicitor for the applicants provided a seven page letter dated 14 April 2000 in response.  In the final paragraph the letter stated:

“It is submitted that as the Tribunal has not tested the applicants’ credit in respect of various aspects of the additional inquiries made, the applicant’s [sic] evidence, at least as to evidentiary matters, must be accepted.”

78                  The applicants contended that the DFAT reports raised new issues concerning the credibility of the applicants and concerning the reliability of the letters from Mr Amaratunga and Mr Kongahage.  Furthermore, the issue of Major General Algama’s death arose after the hearing because he was killed on 18 December 1999.  These new matters were issues arising in relation to the decision under review, and consequently, activated the obligation of the Tribunal to invite the applicants to give evidence and present arguments.

79                  The applicants submitted that s 425(2) should be read as a code which established exhaustively the conditions under which the Tribunal was not obliged to invite an applicant to a hearing.  The only circumstances in which the obligation was not activated were where the provisions of s 425(2) applied and such circumstances did not exist in the present case.  Thus, the applicants argued that s 425(1) contemplated multiple invitations and hearings if new issues arose after a particular hearing.  This construction flowed from the plain meaning of the words of the section.  It is supported by s 33(1) of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act) which provides:

“(1)     Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.”

80                  The applicants claim support from the explanatory memorandum concerning the Amendment Act for the argument that s 425(1) allowed for multiple invitations to appear when new issues arose after an initial hearing.  The explanatory memorandum stated in par 118: 

“New section 425 entitles an applicant to have the opportunity to appear before the Refugee Review Tribunal, by requiring the Tribunal to invite the applicant to appear before it, unless new subsection 425(2) applies.  When subsection 425(2) applies, an applicant is not entitled to appear before the Tribunal.”

81                  Assuming for present purposes that it is permissible to have recourse to the explanatory memorandum under s 15AB of the Acts Interpretation Act, I do not gain any assistance from its terms in determining the proper construction of s 425(1).

82                  The respondent argued that s 425(1) required the Tribunal to give the applicants one invitation to appear and this had been given to them.  The section did not create an entitlement to more than one hearing. 

83                  In written submissions filed on 22 February 2001, the respondent relied upon the recent Full Court decision in Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 (Whitlam, Tamberlin and Sackville JJ).  In that case a “dob-in” letter had been sent to the Department of Immigration and Multicultural Affairs and forwarded to the Tribunal after the conclusion of the Tribunal hearing.  The letter denied some of the central elements of the applicant’s case that he was a political activist.  The Tribunal invited the applicant to comment in writing pursuant to s 424A(1).  The applicant provided written comments and indicated that he was prepared to appear before the Tribunal to clarify his political involvement.  He was not offered a further hearing.  On appeal, one contention of the applicant was that he had been denied an entitlement under s 425(1) to a further hearing.  The Full Court said at pars 25-28:

“25      The appellant contended that the RRT was obliged to give the appellant a further opportunity to appear to give evidence.  According to Ms Winfield, the dob-in letter raised fresh issues that had not been addressed at the hearing held on 12 November 1999.  It followed, so it was argued, that the appellant had not been given an adequate opportunity to give evidence “relating to the issues arising in relation to the decision under review”.

26        This submission overlooks the fact that Div 4 of Part 7 of the Migration Act sets out detailed procedures to be followed where the RRT, as in this case, has information that it considers would be the reason or part of the reason for affirming the decision under review.  Section 424A(1)(c) obliges the RRT to invite the applicant to comment on the information.  Section 424B(1)(b) provides that any such invitation must

            ‘specify the way in which the…comments may be given, being the way [the RRT] considers is appropriate in the circumstances.’

Section 424(2) makes it clear that the invitation to make comments may specify a means of commenting otherwise than at an interview.  Where the invitation does so, the comments are to be given within the period specified in the invitation.  There is nothing to indicate that the statutory procedures do not apply to information received by the RRT after it has held a hearing.

27        In the present case, the RRT determined that it was appropriate for the appellant to provide written comments on the dob-in letter.  Accordingly, the RRT’s letter of 29 November invited the appellant to comment in writing within twenty-one days.  The RRT therefore followed the relevant statutory procedures.  Those procedures did not contemplate that the appellant would be entitled to attend a further hearing.

28                In our view, the detailed statutory procedure set out in Div 4 of Part 7 tells against the submission that the receipt of the dob-in letter imposed a fresh obligation on the RRT to provide a hearing in accordance with s 425(1).  In any event, we do not accept that the dob-in letter raised new issues beyond those canvassed at the hearing of 12 November 1999.  The first two claims in the dob-in letter concerned factual questions at the heart of the appellant’s case.  The last two (not ultimately relied on by the RRT) went to the appellant’s credibility.  It is clear from the RRT’s reasons that the appellant’s credibility was very much in issue at the hearing before the RRT.”

84                  I take the Full Court to have rejected the applicant’s contention for two alternative reasons, namely, first, that the structure of the Act does not envisage more than one invitation under s 425(1) and, second, that the “dob-in” letter did not raise any issues which had not been canvassed at the hearing.  On this analysis both foundations of the decision are binding authority on a single judge.  The first reason is decisive of the issue in the present case.  Having received one invitation to appear the applicants were not entitled to a further invitation under s 425(1). 

85                  If the matter were free from binding authority I would have held that the plain words of s 425(1) read in context do not limit the obligation of the Tribunal to the giving of one invitation to appear.  Rather, the obligation to extend such an invitation is conditioned upon the existence of “issues arising in relation to the decision”.  If such an issue arose after one hearing, the ordinary meaning of the language of the section obliges the Tribunal to extend an invitation to appear. 

86                  The statutory scheme contained in ss 424, 424A, 424B and 424C does not suggest a different approach.  That scheme does not require the plain words of s 425(1) to have any limited operation.  On the contrary, at the hearing referred to in s 425(1) the applicant must be permitted “to give evidence and present arguments”.  This is a more ample right than the right under, for instance, s 424A(1)(c) “to comment” on information which would support the decision under review.  Further, the class of information which attracts the operation of s 424A is limited to information adverse to the applicant’s case which has been obtained by the Tribunal.  This information may be obtained before or after the initial Tribunal hearing and, hence, s 424A cannot be taken to refer only to information received after the first hearing:  see s 424(1).  Thus, the provisions of ss 424, 424A and 424B are not included in the legislation to provide a substitute for the hearing to which the invitation referred to in s 425(1) refers.  Rather, the structure of those sections leads progressively to s 424C.  That section provides one important purpose for the preceding sections.  Section 424C arms the Tribunal with a default mechanism which limits its duty to take further steps where a person does not respond, or does not respond in time, to an invitation to provide additional information or to comment. 

87                  Viewed in this way, s 425(1) does not express any contrary intention for the purpose of s 33(1) of the Acts Interpretation Act.  It follows that s 425(1) confers a duty to be performed from time to time as the occasion requires.  Such an approach to the meaning of s 425(1) is harmonious with the central importance placed by the Act on the right of applicants to appear before the Tribunal and plead their cases:  Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193 at par 31.  The conditions which give rise to refugee claims often involve rapidly evolving political and social events.  It is not unlikely that events of critical relevance to a proceeding before the Tribunal may occur after the hearing but before the decision.  This is especially so where the time gap between those two events is, as in the present case, very great.  Such events may, for instance, validate the claims made by an applicant.  It is unlikely that Parliament intended an applicant, in effect, to have a right to an initial hearing but to have to rely upon the favourable exercise of the discretion of the Tribunal to permit a subsequent invitation, and then only to comment and only in respect of a limited type of information.

88                  For the same reasons it seems to me that the expression “issues arising” used in s 425(1) was intended to be read generously.  In the present case, if it were necessary to determine, I would hold that at least the circumstances of the death of Major General Algama gave rise to an issue arising in relation to the decision under review. 

89                  Thus, but for the decision in Win I would have held that there was a breach of s 425(1) by the Tribunal failing to invite the applicants to appear to give evidence and present arguments, at least on the issue of the circumstances of Major General Algama’s death.  However, that decision binds me to hold that there was no breach of s 425(1) in the respect alleged. 

90                  The final issue on this aspect of the case is whether the previous version of s 425(1)(a) continued to operate in respect of the application in the present case until 1 June 1999 when that section was repealed, or whether the amended version of s 425(1) applied to the application to the exclusion of the obligation which previously existed under s 425(1)(a).

91                  Section 3 of Schedule 3 of the Amendment Act repealed s 425 and provided for its substitution by the present form of s 425.  Section 20(1) of Schedule 3 of the Amendment Act provided:

“(1)     The amendments made by this Schedule apply to an application made under section 412 of the Migration Act 1958 for review of an RRT-reviewable decision if:

(a)               the application was made before the commencement of this Schedule; and

(b)               the review was not completed under section 414 of the Act before that commencement.”

92                  The amendments came into operation on 1 June 1999.  The first DFAT report received after the hearing was dated 11 March 1999 and was forwarded to the applicants by a letter dated 1 April 1999.  If the previous form of s 425(1)(a) remained in operation until 1 June 1999 the failure of the Tribunal to give the applicants an opportunity to appear in relation to the material contained in the DFAT report dated 11 March 1999 may have constituted a breach of the old section, because the applicants had not received a genuine opportunity to appear before it to give evidence in relation to the contents of the report.

93                  It may be said that after the Tribunal received and forwarded the DFAT report dated 11 March 1999, the applicants acquired a right to an opportunity to appear under s 425(1)(a).  On that assumption the situation would attract the operation of s 8(c) of the Acts Interpretation Act which relevantly provides:

“Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:

…

(c)        affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed;”

94                  In my view s 20(1) of the Amendment Act expressed a contrary intention for the purposes of s 8(c) of the Acts Interpretation Act.  The obligation under the amended provision is a more limited obligation than under the previous version of s 425(1)(a).  The amended provision was intended to replace the previous version, and was stated to apply to an existing application in relation to a review which had not yet been completed.  In other words, the amended provision was not simply to apply from a stipulated date, but rather to an application lodged prior to its commencement which had not yet been determined.  In respect of such applications the obligation which existed prior to 1 June 1999 requiring the Tribunal to give the applicants an opportunity to be heard was replaced by the lesser obligation to invite the applicants to appear.  The clear intention of s 20 was to alter the obligation of the Tribunal after 1 June 1999 with retrospective effect in respect of existing, uncompleted applications.  Those applications were to be dealt with as if the amended obligation existed from the commencement of the application.

95                  This conclusion follows the decision of the Full Court in Yao v Minister for Immigration and Multicultural Affairs (1996) 69 FCR 583 in respect of a provision in terms indistinguishable from s 20 of the Amendment Act.  In that case the applicant applied for refugee status in 1991.  The grounds of review of Tribunal decisions by the Court were significantly narrowed by the introduction of what was later to become Part 8 of the Act, which operated from 1992.  In a provision comparable to s 20 of the Amendment Act presently under consideration it was provided that the amended review provisions were to apply to applications made before 1 September 1994 where the reviews of decisions had not been finally determined by that date.  The review of the decision in question had not been finally determined by 1 September 1994.  The Court held that the amended grounds of review applied.  It assumed that the applicant had an accrued right to bring a review on the wider grounds, but held that the provision expressed a clear intention that the narrower grounds were to apply to a review of a decision made before 1 September 1994 and not finally determined at that date. 

96                  In summary this ground of review which relies on s 476(1)(a), must fail because:

(a)                there is no “general principle” which applies to s 425(1) which entitles the applicants to another hearing on the basis that they have been denied a “genuine opportunity” to appear and give evidence;

(b)               the applicants are not entitled to a further invitation to appear and give evidence and present arguments under s 425(1) of the Act; and

(c)                the applicants are not entitled to rely on s 425(1)(a) in its unamended form.

97                  As there was no contravention of s 425(1), the error of law ground of review (s 476(1)(e)) which was based on the same contravention must also fail.

The application that the Tribunal member disqualify herself for apprehended bias

Argument on the Review

98                  Again the applicants first relied upon the failure of the Tribunal to observe a procedure required to be observed in connection with the making of the decision, thereby giving rise to a ground of review under s 476(1)(a) of the Act.  In relation to this issue the procedure which it was claimed was not observed was the procedure set out in s 430(1) which provides:

“(1)     Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

            (a)        sets out the decision of the Tribunal on the review; and

            (b)        sets out the reasons for the decision; and

            (c)        sets out the findings on any material questions of fact; and

(d)               refers to the evidence or any other material on which the findings of fact were based.”

99                  Paragraph 3.2 of each of the applications encapsulates the argument on this issue as follows:

“3.2 Failure to comply with s 430

(a)       …

(b)       The applicant’s adviser submitted to the Tribunal during the hearing on 8 February 1999 that the Tribunal member should disqualify herself on two bases:

(i)                 Her employment as the Victorian State Director of the Department of Immigration and Multicultural Affairs (the Department), both at the time of the primary decision of the delegate and at the time of the review; and

(ii)               Her statement at the commencement of the hearing that she had credibility concerns regarding the applicant’s claim.

(c)            The Tribunal member declined to disqualify herself at that time and proceeded with the hearing.

(d)          The applicant’s adviser, in a letter to the Tribunal dated 14 April 2000 (CB 364-70, in particular at CB 370), repeated the submission that the Tribunal member disqualify herself.

(e)           In breach of s. 430 the Tribunal failed to set out its reasons for continuing to hear and determine the matter, failed to set out any material findings of fact and failed to refer to any evidence upon which this decision was based.”

100               The applicants also contended, for the same reasons, that the failure of the Tribunal member to disqualify herself was reviewable under s 476(1)(d) together with 3(c).

Discussion

101               At the commencement of the hearing on 8 February 1999 the Tribunal member and the solicitor for the applicants had a short discussion about some of the issues which may arise in the course of the hearing.  The relevance of the psychologist’s report was raised.  In that context the Tribunal member observed that the information in the report which provided the basis of the psychologist’s opinion would have to be assessed by the Tribunal itself.  Such a consideration, the Tribunal member suggested, raised issues of credibility.

102               The same issue again arose just before and after the lunch break.  In the course of this discussion the solicitor for the applicants suggested and the Tribunal member accepted that she was the State Director of the Department of Immigration and Multicultural Affairs (the Department) when the delegate’s decision was made.  The solicitor then suggested that this fact viewed against the background of the member’s opening comments concerning the need to test credibility raised questions of bias.  The solicitor concluded by saying:

“… I was concerned about you being in the Department at the time of the decision, and that it does compromise your decision-making, but that’s a matter for you.” 

103               Then, in a letter dated 14 April 2000 from the applicants’ solicitors to the Tribunal, the solicitor wrote:

“Further, I repeat the objection made at the hearing in this matter that the Tribunal member in this matter disqualify herself for bias on the basis of her ongoing employment with the Department of Immigration and Multicultural Affairs.  It is submitted that the member’s apparent refusal to disqualify herself and the subsequent inordinate delays constitute a breach of s 425 of the Migration Act.”

104               In the course of argument counsel for the applicants said that the Tribunal member was in fact on secondment from the Department at the time of the making of the decision under review.  This fact supported the contention that she should have given reasons why she did not disqualify herself.  The fact that she was on secondment was not put to the member as a reason for her to disqualify herself at the hearing, but was only raised afterwards in the letter. 

105               The applicants sought to tender transcript of part of another proceeding in the case of Mohamed Haniffa Ahamed Naizer heard by the same Tribunal member on 24 May 1999.  In this proceeding another member of the firm of the applicants’ solicitors asked the Tribunal member whether she was then on leave from the Department.  The Tribunal member said that she was. 

106               The issue in this case is not whether the member should have disqualified herself on the ground of apprehended bias.  That ground is expressly excluded from the grounds upon which this Court may review decisions of the Tribunal:  s 476(2)(a).  If the applicants wish to pursue that argument they may only do so in the High Court of Australia: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57

107               The narrower issue is whether s 430 required the Tribunal member to explain her reasons for refusing to disqualify herself.

108               Counsel for the applicant submitted that s 430 required the Tribunal to give reasons for procedural decisions as well as for the final decision determining the application.

109               Mr Fairfield, who appeared as counsel for the respondent, contended that the decision referred to in s 430(1) is a “judicially reviewable decision”, namely, the decision to affirm the decision of the delegate.

110               In my view, the meaning of the section is clear.  Section 430(1) requires the Tribunal to prepare a written statement where it makes “its decision on a review”. 

111               The language of the section relates to a single decision on the merits of an application.  The word “decision” is used in the singular.  It does not refer to any number of subsidiary or procedural determinations on the way to a final decision.  The same usage is followed in s 430(1)(a) and (b).  Further, the reference is to the decision “on a review”.  That expression refers to the determinative conclusion of the proceeding rather than to any rulings in the process leading to the final result.

112               This reading of the section has support in a number of authorities.  In Jayasinghe v Mininster for Immigration and Ethnic Affairs (1997) 76 FCR 301; [1997] FCA 551 Goldberg J considered whether the Tribunal had power to reopen a case after delivering a decision when the Tribunal had received further information after handing down its decision.  The determination of the Tribunal not to reopen the case was held not to be a judicially reviewable decision for the purposes of s 476.  His Honour said at 308:

“Nevertheless the manner in which Pt 8 of the Act came to be included in the Act, and the legislative policy which underlies it, suggests quite strongly that the only decisions of the Tribunal which were to be judicially-reviewable were those decisions which dealt with the determined substantive application by applicants in a final way, and not decisions which were procedural in nature.”

113               A determination by a Tribunal or Court to proceed to hear a case following a request to disqualify on the ground of apprehended bias has been held not to constitute a judgment or order for the purpose of statutes governing the right to bring appeals.  Thus in The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 249 the majority of the High Court (Barwick CJ, Gibbs, Stephen and Mason JJ) said at 266:

“It was submitted on behalf of the husband that the wife’s proper remedy was to appeal to the Full Court of the Family Court.  As to that submission no more need be said than that an appeal lies only from a ‘decree’ (s.94(1)), which means a ‘decree, judgment or order’ (s. 4(1)), and a judge who simply continues to sit after it has been submitted that he is disqualified does not thereby make a ‘decree’.”

114               In Barton & Anor v Walker & Anor [1979] 2 NSWLR 740 the New South Wales Court of Appeal held that a motion that a judge should have disqualified himself was not cognisable by the Court.  The proper challenge in a case of apprehended bias is by way of a ground of appeal against the judgment determining the proceedings.  Samuels JA (with whom Reynolds and Glass JJA agreed) referred to the accepted informal process whereby a judge might be asked to disqualify himself or herself.  The refusal to step down does not amount to an order for the purpose of the statutory requirement for leave to appeal from an interlocutory order.  His Honour observed at 749-50:

“Some procedural backing for a motion that a judge should disqualify himself might be derived from the language of Pt. 41, r.11(3)(c) or Pt.34, r. 5(1)(c), or from the directions power in Pt.26, r.4(1)(c) of the Supreme Court Rules, on the footing that what is sought is an order concerning the conduct of proceedings in the Court.  It is, however, to my mind, a matter of real difficulty to conceive of an order directed by the judge to the judge forbidding himself to hear the case; at least in the absence of statutory regulation.  Moreover, there would appear to be no way of enforcing such an order, since committal or sequestration of property (Pt.42, r.6(2)(a) and (b)) can hardly be regarded as appropriate remedies to be enforced against a judge for disobedience of his own order.  It is no answer to this problem to assert that, upon a motion of the kind in contemplation, other ancillary orders of a more regular kind might be sought and made (e.g. for relisting before a registrar) about which the same question of enforcement would not, or might not, arise.  The fundamental conceptual difficulty, granted the possibility of the judge changing his mind, remains unresolved.  The further difficulty encountered is that of the judge acting as judge in his own cause.  How does the judge deal with assertions of fact which he knows to be incorrect?  They might not be challenged by the party not moving.  How can the judge himself introduce evidence, upon which he might have to rule, if its admissibility is challenged, and which he might ultimately have to evaluate?

The problems are compounded when one comes to consider the case of a collegiate court.  Suppose a challenge is made to one judge of the three rostered to hear the case.  How is the matter to be dealt with?  Does that judge hear the ‘motion’ and make an ‘order’ which may affect the court's business, something which he would ordinarily have no power to do? Or do his colleagues determine the application, and make an ‘order’ which binds him, something which they would ordinarily have no power to do? Or is another division of the court to be assembled to decide the matter?  In the Supreme Court of the United States, where disqualification for interest is not wholly uncommon, the decision is for the individual justice alone: Disqualification of Judges, John P. Frank (1970) 35 Law and Contemporary Problems 43, at p.46 published by School of Law, Duke University.

These considerations, in my view, clearly show that a motion to disqualify a judge of the Supreme Court is not cognizable.  The present informal practice is sensible and adequate; the absence of complaint by the profession or by law reformers tend to show that it has not been abused.”

(See also Roger Caleb Rogerson (1990) 45 A Crim R 253 and Rajski v Wood (1989) 18 NSWLR 512.)

115               The existence of apprehended bias is determined by the Court considering an appeal against the decision which concludes the case in which the apprehended bias is said to exist.  That Court does so on the material placed before it, whether the material was before the decision maker or not.  Any reasons given by the decision maker for the decision maker continuing to sit are not relevant to the determination.  In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 a majority of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at par 71 in relation to the question whether the test for apprehended bias has been satisfied:

“That question will be litigated on appeal from the substantive decision in the matter or in proceedings for prohibition, certiorari or similar relief. Whatever the process which the person alleging reasonable apprehension of bias may adopt, there will, in those proceedings, be a full opportunity to make whatever case for disqualification of the judge the moving party can. Inquiring whether the moving party was denied some opportunity to make submissions on the question of disqualification to the judge in question is irrelevant. The question of disqualification can and will be litigated fully in the appeal or application for prerogative or like relief and no separate question of denial of procedural fairness could arise.”

116               These cases show that a refusal to stand down does not involve the making of an order against which an appeal can be taken.  The same reasoning is a helpful guide to the meaning of “decision” in the context of s 430.  If a refusal to disqualify oneself from hearing a curial proceeding does not give rise to an order or decision which is appellable, it is difficult to see how it could be regarded as a “decision on the review” which could ground a review by this Court under ss 430 and 476 of the Act. 

117               There has been no basis demonstrated for the argument that in failing to disqualify herself the Tribunal member engaged in an improper exercise of power by acting in accordance with a rule or policy without regard to the merits of the particular case within the meaning of s 476(1)(d) and (3)(b).  In may be accepted that there was evidence that the Tribunal member was the State Director of the Department at the time of the delegate’s decision and that she was on secondment from the Department at the time she gave her own decision.  However, these facts do not on their own say anything about the basis upon which she exercised the power to decide the applications.  Thus, the ground of review under s 476(1)(d) and (3)(b) in relation to this issue is not made out.

The report of the psychologist

The Argument on the Review

118               The applicants again relied upon s 476(1)(a) alleging a failure by the Tribunal to comply with s 430.

119               The applicants’ argument on this issue was encapsulated in par 3.3 of each of the applications as follows:

“(a)     The Tribunal had before it a report from an expert psychologist from the Refugee Mental Health Network, Ms. Maritza Thompson (CB 180-94) which included a diagnosis that the applicant was suffering from Post Traumatic Stress Disorder (PTSD).

(b)               The report also provided the expert’s strong support for the credibility of the applicant’s claim, in circumstances where the author of the report had spent many hours with the applicant, over numerous clinical counselling sessions.

(c)               The Tribunal accepted the diagnosis of the expert however declined to accept the factual foundation for the expert’s opinion.  The Tribunal said that ‘there are a range of matters which cause such conditions’ (CB 457).

(d)               The Tribunal failed to set out its reasons for rejecting the opinion of Ms. Thompson.

(e)               The Tribunal failed to set out its finding on a material question of fact, namely the strong opinion of the expert witness in support of the credibility of the applicant’s claim and the capacity of the expert to form such an opinion.

(f)                The Tribunal failed to refer to the evidence upon which the critical finding that ‘there are a range of matters which cause such conditions’ (CB 457) was based.”

120               For the same reasons the applicants alleged that the rejection of the psychologist’s report was an error of law attracting the ground of review contained in s 476(1)(e).

121               The applicants also relied upon s 476(1)(g) together with 4(a) or (b).  They alleged that there was no evidence or other material to justify the finding as to the cause of the PTSD suffered by the applicants that “there are a range of matters which can cause such conditions”.

Discussion

122               The psychologist’s report recorded what the applicants had said to the psychologist about the mistreatment the applicants experienced.  Then the report described the process of assessment of the applicants’ psychological conditions by setting out the diagnostic criteria for PTSD and describing the applicants’ conditions by reference to the criteria.  For instance, one criterion was described as:

“1)  Recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions.”

On this criterion Mrs Algama’s condition was described thus:

“Sabrina constantly smells the man who raped her, she can smell the damp room, different sounds bring reminders of this time.”

123               The report concluded that Mrs Algama met the criteria for PTSD.  It stated:

“In summary Sabrina clearly meets full criteria for severe PTSD and Obsessive Compulsive Behaviour leading to depression.  These disorders can be very clearly linked back to her experience in Sri Lanka where she was tortured severely and experienced a number of extreme stresses, including sexual assault.”

124               Then a page later, under the heading “Conclusion”, the report stated:

“I have absolutely no doubt in my mind that Sabrina and Rajitha’s case is genuine.  They are survivors of torture and continued persecution.  They believe that by returning to Sri Lanka their nightmare will continue.  Therefore the clinical diagnosis is directly linked to these experiences.  Their fears to return are genuine based on real and direct life experiences.  Given the situation is unstable in Sri Lanka, the belief that their lives are at risk is also genuine and logical. 

From a clinical point of view this case is clearly of a Refugee whose lives are at risk and has been at risk in the past.  Given their experience and present state the fear of return or ultimate reality of return would have major mental health consequences.”

125               As extracted earlier in these reasons at par 47 above, the decision of the Tribunal dealt with the psychologist’s report as follows:

“I accept that both the applicant [Mrs Algama] and her husband appear highly stressed and that they have had a number of difficulties in their relationship.  I accept that both the husband and the wife have been diagnosed with post traumatic stress disorder and other psychological difficulties.  However, there are a range of matters which can cause such conditions, and, given that I do not accept that events occurred in Sri Lanka in the way described by the applicants and for the reasons stated by the applicants, I do not accept that their conditions have been caused by these events.”

126               The applicants submitted that the Tribunal, in breach of s 430(1)(b), failed to give reasons for rejecting the psychologist’s view that the PTSD was linked to real experiences of rape and persecution in Sri Lanka. 

127               I do not accept this argument.  The Tribunal gave extensive reasons for rejecting the applicants’ claims of mistreatment.  The reason expressed by the Tribunal for rejecting the psychologist’s opinion as to the cause of the PTSD was the rejection of the underlying claims of the applicants.  Thereby the Tribunal gave reasons for rejecting the psychologist’s opinion.  The rejection was bold, and perhaps even startling in light of the symptoms observed by the psychologist.  On the other hand, the Tribunal most likely had access to a wider range of factual background than did the psychologist.  This ground of review depends on the Tribunal failing to give reasons.  The Tribunal did give reasons, and it is not the function of the Court to assess the validity of those reasons. 

128               Even if the Tribunal had failed to give reasons for rejecting the opinion of the psychologist that the applicants had suffered persecution, the Tribunal would not have failed to comply with s 430(1)(b).  The psychologist’s opinion as to the existence of the background facts was simply material inconsistent with the view which the Tribunal formed that the applicants had not suffered persecution.  That situation is governed by the opinion of the majority (Black CJ, Sundberg, Katz and Hely JJ) in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469; [2000] FCA 845 where in par 46 it was said:

“There is no specific requirement in s 430 for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made.  That is the view endorsed by the decisions referred to in [12] above, and in our view it is consistent with the language of the section.  The decision of the Full Court in Arudselvan v Minister for Immigration and Multicultural Affairs [1999] FCA 1726 provides another illustration of this approach.  There the Court held that the RRT was not obliged to analyse material submitted by the applicant, and to give reasons for not accepting any of it that might be thought to be inconsistent with the conclusions it reached.  The endorsed view is subject to the important qualification that if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT’s actual reasoning process:  see Durairajasingham.”

129               The present case did not fall within the qualification because the rejection of the psychologist’s opinion was not one of the reasons which induced the Tribunal to come to its decision.  The basis for the Tribunal’s conclusion was its rejection of the claims that the applicants had been arrested and mistreated.

130               The applicants also relied upon s 430(1)(c) to argue that the Tribunal failed to set out its finding on the validity of the opinion of the psychologist, and that was a material question of fact.  Again the Tribunal did explain its reasons for rejecting the opinion of the psychologist as to the linkage between the PTSD and the alleged persecution.  The reason was that the investigations conducted by the Tribunal persuaded it that the events alleged did not happen.  The decision of the Tribunal clearly disclosed that it found against the linkage expressed by the psychologist. 

131               But, in any event, the opinion of the psychologist was not a material fact upon which the case turned.  It was not a material fact for the purposes of s 430(1)(c) as described by the majority in Singh in pars 55-57 as follows:

“The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision.  Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it.  Conversely an application may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them.  As Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691, in the context of s 43 of the AAT Act:

‘Section 43 is not to be construed in a pedantic spirit, but sensibly.  If the Tribunal’s reasons expose the logic of its decision, and contain findings on matters of fact which are essential to the logic, it will not be easy to demonstrate a failure of compliance with a requirement to include “findings on material questions of fact”.’

Accordingly if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one.  But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with:  see Durairajasingham at 416 [65] and 417 [67]. (Re: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham, (2000) 169 ALR 407.)

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

132               The applicants also argued that the Tribunal in breach of s 430(1)(d) failed to refer to any evidence or other material on which the finding was made that PTSD could be caused by a range of other matters.  The finding that the PTSD could be caused by factors other than the alleged persecution was not a material fact as explained in the passage from Singh referred to in par 131.  It was not a fact upon which, in a practical sense, the case turned.  But, in any event, it was not necessary for the Tribunal’s reasoning to establish a specific cause for the PTSD.  It was sufficient for the Tribunal to be satisfied that the applicants suffered PTSD and the alleged conduct had not occurred but that some other cause, even if unidentified, may have been responsible for the disorders.  This final step in the reasoning is no more than the logical consequence of the taking of the first two steps, namely, that the applicants did suffer PTSD, but they did not experience the particular events which they claimed.

133               Then, the applicants argued that there was no evidence to justify the making of the decision in that the decision was based on the existence of a particular fact and that fact did not exist (s 476(1)(g) and (4)(b)).  The Tribunal found that the PTSD was not the result of the alleged persecution because the Tribunal found that the conduct alleged did not occur.  The Tribunal went on to say that there were a range of matters which could cause such disorders.  The applicants contended that there was no evidence of any other cause, and thus the Tribunal’s finding was based on a fact which did not exist.  As set out in par 132 above, the Tribunal’s finding that PTSD could be caused by other facts was not a fact upon which the decision was based.  Hence, it is not a finding challengeable under s 476(4)(b).

134               Finally, after the conclusion of the hearing the applicants sought leave to amend their applications to include a new ground by which to impugn the Tribunal’s treatment of the psychologist’s report.  By an amended application and supplementary contentions of fact and law dated 15 December 2000, the applicants submitted that the Tribunal failed to give proper, genuine and realistic consideration to the issues raised in the psychologist’s report, and to the evidence of Mrs Algama concerning her rape at the hands of the police.  This argument was based on the decision in Anthonypillai v Minister for Immigration Multicultural Affairs [2000] FCA 1368.  Since the hearing of the present applications, the decision in Anthonypillai has been reversed on appeal: Minister for Immigration Multicultural Affairs v Anthonypillai [2001] FCA 274.  The Full Court (Heerey, Goldberg and Weinberg JJ) said at pars 65-66:

“65      In 1992 Parliament made major changes to the system for administrative and judicial review of migration decision-making.  In relation to refugee decisions, some grounds of judicial review previously available under the AD(JR) Act or at common law were abolished. Part 8 (as the amendments were subsequently designated) was to be a code but at the same time a specialist independent administrative tribunal was established.  Detailed procedures for that tribunal were spelt out in the legislation and compliance with those procedures was to be enforceable by this Court.  The “proper, genuine and realistic consideration” formula runs counter to this scheme.  It creates a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised.

66        In our view, to say that the Tribunal failed to give ‘proper, genuine and realistic consideration’ to an application does not make out any available ground for review under Pt 8.”

135               Independent of the principles in Anthonypillai, the applicants also contended in their supplementary contentions that the Tribunal’s alleged failure to consider the psychologist’s report and Mrs Algama’s evidence on this issue amounted to a constructive failure of jurisdiction, such that the decision was not authorised under the Act.  Such a failure, if made out, would be a reviewable error under s 476(1)(b) and s 476(1)(c) of the Act.

136               Where the Tribunal fails to consider “all of the substantial claims, and information in support of them, put forward by the applicant”, it has misinterpreted  its duty under the Act to “review” the delegate’s decision:  Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287, 292; [1999] FCA 247.  This error amounts to an “error of law being an error involving an incorrect interpretation of the applicable law” within the meaning of s 476(1)(e).  A failure to consider all of the claims of the applicant may also be regarded as a “constructive failure of jurisdiction” because the Tribunal did not consider the “real question which it was its duty to consider” (Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559, 577 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)).  As such, the decision is “not authorised by the Act” within the meaning of s 476(1)(c):  Sellamuthu, at 293.

137               In Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28; [1998] FCA 1693 Merkel J (with whom Wilcox and Lindgren JJ concurred in the result) reviewed the statutory scheme creating the Tribunal and the duties imposed by this legislative framework.  His Honour concluded at 63:

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

138               After discussing s 420 of the Act, his Honour continued at 64:

“Independently of s 420, the RRT must apply itself to the question which the law prescribes.  If the RRT misconceives its duty or fails to address the correct legal questions committed to it by not applying itself to all the issues it is required to consider in determining the matter before it, there will have been a purported, but not real, exercise of its functions and jurisdiction.  In such circumstances there will have been a constructive failure by the RRT to exercise its jurisdiction: see Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 per Jordan CJ; Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 480 per Barwick CJ and at 483 per Gibbs J; Guo v Minister for Immigration and Ethnic Affairs at 165-66 per Beaumont J; Guo at 578; 581; and Calado at 75.”

139               In Anthonypillai, the Full Court revisited the doctrine of “constructive failure of jurisdiction” as follows:

“78 …[I]t seems to us that there is some scope, albeit limited, for the argument that the Tribunal may, in a particular case, have failed to ‘review’ the decision of the Minister.  In other words, although we consider the use of the formula ‘proper, genuine and realistic consideration’ to be an unsuitable method of expressing the circumstances in which that contention can be maintained, we accept that there may be some cases where it can properly be said that the Tribunal has not in truth ‘considered’ the application for a visa at all.

79        It is often dangerous to seek to elucidate a principle by the use of examples, particularly when they are far removed from the facts before the Court.  However, were the Tribunal to misconceive the nature of its statutory obligation, as for example by mistakenly believing that it was engaged in appellate review of the Minister’s decision (rather than a rehearing de novo), it would be difficult to avoid the conclusion that it had failed to ‘review’ the decision, in accordance with the requirements of the Act.  Similarly, were the Tribunal to address the wrong question, rather than the question properly before it, there would be a constructive failure to exercise jurisdiction.  Again, speaking hypothetically, were the Tribunal merely to pay lip service to its task, as for example by determining an application without reading the material filed before it, it would be difficult to conclude that it had ‘considered’ the application.”

140               The applicants criticism of the Tribunal’s reasoning in respect of the psychologist’s report and Mrs Algama’s evidence concerning her rape is that it did not “adequately” address the evidence.  The Tribunal’s findings on these issues are set out in pars 41, 42, 47 and 48 of these reasons.  Those findings indicate that the Tribunal clearly considered the psychologist’s report and indeed accepted the diagnosis that the applicants suffered PTSD, but rejected the psychologist’s opinion as to the cause of the PTSD.  The Tribunal did not accept “that [Mrs Algama] was ever detained by the police as claimed”, and thus implicitly rejected her evidence that she was raped in detention in November 1995. The rejection of the detention claim and associated rape claim flowed from rejection of the underlying claim that the applicants were persecuted because of their close association with Major General Algama which rejection was based on the Tribunal’s assessment of the applicants’ credibility and the implausibility of their claims in light of the country information before the Tribunal.

141               Unlike Sellamuthu, this is not a case where the country information before the Tribunal significantly supported the applicants’ claims such that a rejection of the applicants’ claims wholly or primarily due to credibility concerns left substantial questions unanswered: Sellamuthu  at 291.

142               Rather, the case presently before the Court may be an example of the kind contemplated by the Full Court in Sellamuthu  where it was said:

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

143               The Tribunal in the present case found that “[t]here is no indication in any of [the articles submitted by the applicants] or in any of the literature I have seen that people of the applicants’ claimed social standing and Sinhalese or Burgher background are ever treated in the way described by [Mrs Algama]”.  In the absence of any supporting country information, the Tribunal considered and rejected Mrs Algama’s rape claim “upon legally proper rejection” of her and her husband’s credibility.  This ground of review must fail.

The cause of death of Major General Algama

The Argument on the Review

144               Again the applicants first relied upon an alleged breach by the Tribunal of the requirements of s 430.

145               On this issue par 3.4 of the particulars of each of the applications stated:

“(a)     The significance of Major General Algama to the applicant’s case, and the issue of who might be responsible for his death, was at the forefront of the final submissions from the applicant’s adviser in her letter dated 14 April 2000 (CB 374-70).

(b)               The Tribunal had before it evidence (annexed to the submissions at CB 371) that Major General Algama was killed when a grenade was thrown into his vehicle, as he was about to get out to attend a United National Party (UNP) political rally.

(c)               This piece of evidence was fundamental to the applicant’s claim that Major General Algama was personally targeted and that his death was not simply the result of random violence by the Liberation Tigers of Tamil Eelam (LTTE).

(d)               The Tribunal failed to make any finding as to this key piece of evidence which was capable of supporting in a significant way the claim of the applicant.

146               Relying on the same argument the applicants contended that the Tribunal made an error of law within the meaning of s 476(1)(e).

Discussion

147               In the “Claims and Evidence” section of the decision the Tribunal outlined the evidence concerning General Algama’s death, which material was submitted by the applicants and said to support the claim that General Algama was personally targeted by government forces.  The Tribunal then referred to a further newspaper article which it had obtained, and it extracted parts of a Reuters report and an internet report from the Sri Lankan Sunday Times.  These sources indicated that the LTTE were responsible for the killing of General Algama.

148               In the “Finding and Reasons” section of the decision the Tribunal said:

“The applicant [Mrs Algama] subsequently provided information about further enquiries into Major General Agama’s [sic] activities in the border regions of the war in September 1999, and the death of Major General Algama in a bomb blast at a UNP rally in December 1999.  She and her husband claimed that he was targeted by the killers.  In their latest submission of 14 April 2000 the applicant and her husband argued that the evidence was not conclusive that the LTTE authorised the attack that killed the General, and that others may have been involved, such as the security forces.  However, this is purely speculative, and is not supported by the evidence, including that presented by the applicants.

I accept that Major General Algama was killed in this blast.  However, the weight of evidence noted earlier in this decision in newspaper reports is that this blast was orchestrated by the LTTE, which was believed to have organised a similar blast at about the same time, on the same day, at a PA rally where the President was injured and a chief of police killed.  I do not accept that there could have been a co-incidence of the order that the LTTE planned one attack on the PA rally and others planned another attack on the UNP rally at about the same time.  I accept that the LTTE or killers wished to kill as many senior people at both rallies as possible, but I do not accept that the bombings occurred to target Major General Algama in particular by the government or by any state authority, or by the LTTE.”

149               A similar passage is found in the decision concerning Mr Algama.

150               Amongst the material submitted to the Tribunal was a newspaper photograph of the funeral of Major General Algama.  In a six line caption there appeared the following sentence: 

“He [Major General Algama] was instantly killed when a grenade was lobbed into his vehicle when he was just about to get in after the UNP rally held at Ja-Ela on December 18.”

151               The applicants argued that this evidence concerned a material question of fact.  They argued that the Tribunal, in breach of s 430(1)(c), failed to make a finding on this evidence.  There is no merit in this argument.  First, the question whether the grenade was lobbed into Major General Algama’s car or not said nothing about whether he was targeted by the government forces or was killed by the LTTE.  Second, if the question to which this evidence was said to relate was whether Major General Algama was personally targeted by government forces or was killed by the LTTE, then the Tribunal did make findings on the question.  It found that the weight of evidence was that the LTTE orchestrated the killing.  And finally, it is doubtful that the cause of death of Major General Algama was a material question of fact at all.  Once the Tribunal had found that the claimed closeness of the relationship between Major General Algama and the applicants did not exist, there was no practical significance in the question of how Major General Algama died to the resolution of the case by the Tribunal. 

152               For the same reasons, the Tribunal made no error of law within s 476(1)(e) in dealing with this issue.

The way in which the Tribunal dealt with the various letters submitted on behalf of the applicantS

The Argument on the Review

153               In reliance on s 476(1)(e) the applicants submitted that the Tribunal had erred in law on this issue. 

154               The applicants’ contentions were summarised in par 5.2 of each of the applications as follows:

“(a)     The Tribunal had before it a number of letters from persons in Sri Lanka, in particular:

(i)         Shoba Samaratunga [sic], Attorney, dated 1 June 1997(CB 198)

(ii)                John Amaratunga, MP, dated 23 May 1996 (CB 209)

(iii)              John Amaratunga, MP, dated 17 October 1999 (CB 331)

(iv)              Sarath Kongahage, MP, undated (CB 210)

(v)                Dr. Palitha Kumarasinghe, dated 22 November 1995 (CB 70)

(vi)              Dr. Palitha Kumarasinghe, dated 7 June 1997 (CB 197)

(b)               With the consent of the applicant [Mrs Algama], the Tribunal made enquiries through the High Commission in Colombo, directed to Mr. Amaratunga and Mr. Kongahage.

(c)               The Tribunal erred in that it failed to make any similar enquiry of Shoba Samaratunga [sic].  This letter referred to a critical element of the applicant’s claim, namely her detention in November 1995.  The Tribunal failed to give proper, genuine or realistic consideration to issues raised in the letter and its capacity to support the applicant’s claim.

(d)               The Tribunal erred in that it failed to make any similar enquiry of Dr. Palitha Kumarasinghe.  The second letter, dealing with a consultation on 22 November 1995, referred to a critical element of the applicant’s claim, namely that she had been raped.  The Tribunal failed to give proper, genuine or realistic consideration to issues raised in the letter and its capacity to support the applicant’s claim.

(e)               The Tribunal erred in not making a further enquiry of the diplomatic post upon receipt of the second letter from Mr. Amaratunga (dated 17 October 1999) which took issue with the response from the post dated 2 August 1999 (CB 309-10).  The Tribunal turned its mind to the possibility of further enquiry (CB 415) but declined to take the matter further.  In so doing the Tribunal failed to give proper, genuine or realistic consideration to the issues raised in the letters, and their capacity to support the applicant’s claim.

(f)                The Tribunal erred in rejecting letters provided by the applicant, referred to in paragraph (a) above, on an impermissible basis, namely that the letters were provided for the purpose of obtaining refugee status and/or solely to assist the applicants in their claims (CB 416).  It misdirected itself as to the proper basis for the rejection of evidence which was otherwise logically probative.  In the absence of a finding that the letters were fabricated, the Tribunal was obliged to have regard to them, notwithstanding the fact that they may have been supplied to assist the applicant.  The Tribunal failed to give proper, genuine or realistic consideration to issues raised in the letters, and their capacity to support the applicant’s claim.”

Discussion

155               The consideration by the Tribunal of the letters from the two members of Parliament, Mr Amaratunga and Mr Konagahage, from the applicants’ attorney friend, Shoba Samaratunge and from Mrs Algama’s gynaecologist, Dr Palitha Kumarasinghe, is set out earlier in these reasons at pars 45-46. 

156               The applicants’ submission on this issue involved two arguments.  First, it was contended that in failing to make further inquiries in relation to the letters from the two members of Parliament and to make any inquiries in relation to the letters from the attorney friend and the gynaecologist, the Tribunal failed to give proper, genuine and realistic consideration to the issues raised in the letters, and thereby the Tribunal erred in law.  It was rightly accepted that the failure to make any or any further inquiries is not in itself a reviewable error.  This is because s 427 of the Act gives the Tribunal a discretion whether to make inquiries or not:  Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 (Ryan J); Rahman v Minister for Immigration  and Multicultural Affairs [2000] FCA 1277 (French J).

157               Thus, the applicants based their argument on the decision in Anthonypillai.  As explained in par 134 of these reasons,since the hearing of the present applications by the Court, the decision in Anthonypillai has been reversed on appeal.  As a result, the argument relied upon by the applicants is not sustainable.  In the light of the decision of the Full Court it is not necessary to consider whether the circumstances of this case amounted to a failure by the Tribunal to give proper, genuine and realistic consideration to the issues in the case by reason of the treatment of the letters from the members of Parliament, the attorney and the gynaecologist.  Suffice it to say that this case is quite different to Anthonypillai, and I would not have held that the Tribunal had failed in the way alleged.  It went to considerable efforts to investigate the letters from the members of Parliament and set out comprehensively its reasons for placing no weight on the letters. 

158               The second argument was also based on an alleged error of law arising from the failure to give proper, genuine and realistic consideration to the letters.  In this instance the failure was said to arise from dismissing the worth of the letters on the basis that they were provided solely to assist the applicants.  As formulated, the argument must fail following the Full Court decision in Anthonypillai.  The rejection of the letters followed an assessment of their worth in the light of all the evidence.  The challenge to the Tribunal’s approach to the letters amounts, in essence, to a challenge to its finding on the merits of the evidence.  Such a challenge is not a proper subject for a review under s 476(1).

The failure of the Tribunal to apply the “what if I am wrong” test

The Argument on the Review

159               Again the applicants relied on s 476(1)(e) of the Act in relation to this issue.

160               The applicants’ contention was summarised in par 5.3 of the particulars of Mrs Algama’s application as follows:

“(a)     The Tribunal erred in that it failed to consider that its findings (at CB 407, 410, 412 that the applicant had not been harassed, arrested in August 1994 nor arrested in November 1995 and raped whilst in custody) might be wrong.

(b)       These findings were based upon country information which was itself equivocal.  The DFAT advice relied upon by the Tribunal, dated March 1999 (CB 408), expressed itself in terms of unlikelihood and improbability.  It did not permit a finding with any degree of confidence or conviction.”

161               Paragraph 5.3(a) of Mr Algama’s application states:

“The Tribunal erred in that it failed to consider that its findings (at CB 452, that the applicant and his wife had not been arrested in August 1994) might be wrong.”

Discussion

162               This submission accepted that if the Tribunal had no real doubt about its conclusions that the applicants had not been arrested in August 1994 or that Mrs Algama was not arrested and raped in November 1995, it was not required to consider the case on the basis that it might have been wrong in its conclusions.  Such an approach accords with authority.  In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 794, Sackville J said at pars 60 and 67: 

“60      It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a "real substantial basis" for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.

…

67        In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had ‘no real doubt’ (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A ‘fair reading’ of the reasons incorporates the principle that the RRT's reasons should receive a ‘beneficial construction’ and should not be ‘construed minutely and finely with an eye keenly attuned to the perception of error’:

            Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FC), at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.”

163               The applicants accepted that the Tribunal expressed itself with conviction and with no doubt about these conclusions. 

164               The error of law within s 476(1)(e) was said to be that there was no basis for the Tribunal to be so confident of its conclusions having regard to the nature of the evidence upon which it relied.  As a result the Tribunal was obliged, and failed, to ask “what if I am wrong”. 

165               This ground was argued but fleetingly.  It is without substance.  It amounts to a challenge to the Tribunal’s assessment of the totality of the evidence on these issues.  Even if there was truth in the contention that the Tribunal had no reason for confidence about its findings, no error of law would have been demonstrated.  Rather, at the best for the applicants, the Tribunal would have been shown to have erred in its assessment of the weight of the evidence.  Such an error does not provide a ground of review under s 476(1)(e).

conclusion

166               For the reasons expressed above each application is dismissed with costs.

Associate:

Dated:              27 April 2001