FEDERAL COURT OF AUSTRALIA

Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570

PRACTICE AND PROCEDURE – exercise of discretion not to receive further evidence on appeal

Federal Court of Australia Act 1976 (Cth) s 27

CDJ v VAJ (1998) 197 CLR 172 referred to

Guss v Johnstone [2000] FCA 1455 referred to

Heslehurst v Government of New Zealand [2001] FCA 202 referred to

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 applied

Bilgin v Minister for Immigration & Multicultural Affairs (1997) 149 ALR 281 referred to

Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 followed

Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193 followed

Chan v Minister for Immigration & Multicultural Affairs (1989) 169 CLR 379 referred to

REVEREND KAHATAPITIYE PANNASARA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 185 OF 2000

CARR, LINDGREN AND KATZ JJ

18 MAY 2001

PERTH

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

the court:

INTRODUCTION

1                     The appellant appeals from a decision of a Judge of the Court dismissing his application made under subs 476(1) of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal had dismissed his application for review of a decision of a delegate of the respondent not to grant him a protection visa.

2                     Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa.  The validity of the appellant’s application for the protection visa has not been in question.  One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied.  Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).  Australia is a party to the Convention.

3                     Article 1A(2) of the Convention provides that a refugee is any person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4                     Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth), which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

5                     The RRT’s decision was a “judicially-reviewable decision” (par 475(1)(b) of the Act); the appellant was entitled to apply to this Court for review of it on certain grounds (s 476); and the Court had the jurisdiction provided by Part 8 of the Act, but no other jurisdiction, with respect to it (ss 485, 486).

6                     The appellant’s case has been throughout that he is outside the country of his nationality, Sri Lanka, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of race, religion, membership of a particular social group and political opinion (“nationality” also appears for the first time in the appellant’s submissions relating to the eleventh ground of appeal (see below) but this cannot be correct).

procedural background

7                     The appellant arrived in Australia on 23 February 1993.  He travelled on a Sri Lankan passport issued on 21 January 1993 by the Sri Lankan High Commission in Kuala Lumpur, Malaysia, which was valid to 20 January 1998.

8                     In late February or early March 1999, that is, some six years after his arrival, he lodged the application for the protection visa (visa sub-class 866) with the Department of Immigration & Multicultural Affairs (“the Department”).  On 13 May 1999, a delegate of the respondent (“the Delegate”) refused the application.  On 2 June 1999, the appellant applied to the Tribunal for review of the Delegate’s decision.  The Tribunal conducted a hearing on 6 October 1999.  On 4 February 2000 it affirmed the Delegate’s decision.  On 3 March 2000, the appellant lodged an application in this Court for review of the Tribunal’s decision.  On 13 October 2000, the learned primary Judge dismissed the application.

The reasons for decision of the tribunal

9                     The appellant is a Sri Lankan Buddhist monk.  The Tribunal had before it written submissions in support of his application for review as well as his oral evidence.  The written submissions exceeded 500 pages in length and included a 388-page document entitled “Report to the Department of Immigration and Ethnic Affairs and the Federal Police of Australia”.  That document was divided up by 209 headings which were themselves divided into four parts.  The list of contents was set out in the Tribunal’s Reasons for Decision.  The Tribunal’s Reasons for Decision occupied 45 pages.

10                  The primary Judge summarised the Tribunal’s findings over some 4 to 5 pages of his 14-page Reasons for Judgment.  We think it suffices for present purposes if we repeat his Honour’s summary.  It was as follows:

“The findings of the Tribunal were as follows:

(1)               The applicant holds a subjective fear of returning to Sri Lanka.

(2)               The applicant readily assumed that others were out to harm him when other, more innocent, explanations were plausible.  He had a demonstrated capacity to be suspicious of others.  There was therefore a question whether his fear was objectively well-founded.  The fact that the applicant had found conspiracies in so many places and from so many sources raised the question, in the view of the Tribunal, of whether the applicant’s fear was exaggerated.

(3)               As to the applicant’s political activity, he had been a politically active figure from his student days until he left Sri Lanka.  He had made both friends and enemies within the Buddhist religious community as well as in political circles.  He had been a politically aware and interested person who gave strong support to one particular political party, namely the United National Party (“the UNP”).

(4)               Concerning his support for the UNP:

(a)          The applicant has been an open supporter of the UNP.  He has given a long list of particular advice to various UNP politicians on party and government policies and processes.

(b)          As the UNP has now lost power, he has lost influence with government.  However, that would not mean he could not continue his relationship with the UNP if he returned to Sri Lanka.

(c)          Another reason for the applicant having suffered a diminution of influence was that he has been long absent from the scene in Sri Lanka.

(d)          His diminution in influence also follows from a conviction in Australia on sexual assault charges and a consequential prison sentence.

(e)          He will not be equipped to return to a position of influence in the UNP and in that sense is not a target for attack for being in such a position.

(5)               The applicant has been a target of groups in Sri Lanka over a great length of time.  According to his claims the threats emerged as early as the 1970s and continued up until he left the country in 1990.

(6)               The Tribunal was not satisfied he was a constant target of violence.  There were numerous opportunities for harm to be done to him but, apart from one incident, he remained unscathed.  It considered it implausible that all the alleged assassins would be so inept as to so frequently miss their target.  All the claimed death threats and attempts on his life were found not to be real.  The conspiracies he claims have been mounted against him over at least a twenty-year period were not accepted.

(7)               As to the applicant’s claim that one of the major sources of threat to him in the past and into the future is the Janatha Vimukthi Peramuna (“the JVP”), the Tribunal found as follows:

(a)          The applicant warned fellow monks and others against the JVP.

(b)          Various conspiracies alleged by the applicant against him from JVP sources were not accepted.

(c)          His mother was seriously injured and died of her injuries in an attack in July or August.  There is not sufficient evidence to support his claim to have been a target or the target at this time.

(d)          In August 1989 the applicant was threatened and harmed, possibly by JVP terrorists.

(e)          The JVP has no reason to seek to eliminate the applicant.  He has been absent from the Sri Lankan political scene for ten years.  There have been substantial changes to that political landscape since he left.

(f)           The applicant’s fears that he will be subjected to JVP violence on his return to Sri Lanka are not well-founded.

(8)               As to the applicant’s claims to have a fear of persecution by the Liberation Tigers of Tamil Eelam (“the LTTE”) the Tribunal found:

(a)          The applicant as a Sinhalese and Buddhist is, in a general sense, of the class of persons whom the Tamil Tigers regard as their oppressors.

(b)          The tactics of the Tigers do not mean all Sinhalese Buddhists are their targets.

(c)          The applicant could locate himself in one of the many Buddhist temples outside the range of the LTTE.

(d)          The applicant is not a special target of the LTTE for reasons of his class or group and on return would join the general population which has experienced widespread violence in a complex communal conflict.

(e)          There is lack of substance in the applicant’s claims to be a specific target of the LTTE.  His claims involve exaggerations and elaborations.  He has not been targeted in the manner he has claimed.  He is not a person sought out by the LTTE and marked by them as an opponent.

(f)           He does not face a real chance of persecution by the LTTE for a Convention reason.

(9)               As to claims by the applicant that he was persecuted by security agencies:

(a)          There is convincing independent evidence that the police, army and other security agencies of Sri Lanka are the source of human rights abuses of those in their custody and may also have been the source of assassinations of some well-known and influential figures.

(b)          The Tribunal accepts that as a consequence of the applicant’s role in a panel in a Maharangama Police Division in 1983, the panel’s reports were unwanted by some members of the police force and the government was interested in suppressing information.

(c)          The Tribunal was not satisfied of the applicant’s account of consequent threats and attacks on him from this source in succeeding years or that he was pursued by a section of the police force over that period of time.

(d)          The Tribunal did not accept his claim to have been the object of an abduction attempt while living at an army camp prior to leaving Sri Lanka.  He had invented or imagined this and related incidents.

(10)           In relation to his exit from Sri Lanka:

(a)          It was not established that he had, as claimed by him, fled the country in a great hurry.

(b)          Nor is it established that he was advised by the Minister of Defence to flee the country.

(c)          He left Sri Lanka legally and openly.

(d)          His claim to have moved from country to country because he was fearful of attacks on him was not established.  Nor was it established he was under threat from either JVP or LTTE activists in Thailand, Singapore and Malaysia as he claimed.  These were found to be further examples of the applicant’s propensity to find conspiracies in many places. 

(11)           As to the attitude of the present government to the applicant:

(a)          The Tribunal was not satisfied the applicant, having been outside the country for some years and with a prison record, would be able to convince others that he was in a position to lead a political party.

(b)          The applicant has no present political profile which would lead to the current government taking action against him.  He has no continuing political influence.

(c)          The applicant had sought protection from his government which had responded responsibly and this indicated it had neither abandoned him nor intended him harm.  The current government is not a source of harm or intended harm amounting to persecution against the applicant.

(d)          His claims that the government or some of its members have plotted to have him deported and/or murdered were rejected as fanciful.

(12)           As to claims of conspiracies against him in Australia:

(a)          The applicant had a strong belief he is the victim of malicious mischief by conspirators in Western Australia and Sri Lanka in which both the JVP and LTTE were involved.

(b)          While the applicant has claimed to be in fear for his life from various people in Western Australia, he did not take the opportunity of remaining in Brisbane, Sydney or Melbourne or places he visited by invitation in 1993.  Nor did he take up advice while in Brisbane that he seek refugee status while he was in that city. 

(c)          The applicant’s claim that he was urged to write a letter to the LTTE leader supporting the assassination of a president is fanciful and implausible.

(d)          His claim that his opponents in Western Australia went to the extent of murdering three local young women in order to implicate him and cause him harm is without foundation and casts doubt on the genuineness of other conspiracy theories he has put forward.

(e)          He has imagined or invented claims that there were plots against his life while he was in prison or by officers of the Department.

(13)           As to the claim by the applicant that he intended to return to Sri Lanka as soon as he was assured it was safe to do so, that does not fit well with his actions which indicate no such intention to return.

(14)           The circumstances of an attack on a temple with which the applicant has a special relationship was not related to the applicant being the real target.

The Tribunal said it was also to be born in mind in assessing the evidence and the applicant’s future, that, as a consequence of his conviction and imprisonment, his ability to influence people is much reduced.  His ability to be a significant religious figure in Sri Lanka has been harmed.

The Tribunal concluded its reasons with the following statement:

‘The Tribunal has considered carefully the range of information provided by the Applicant and his version of the meaning of various incidents.  It finds his claims to be exaggerated and often implausible.  He demonstrated a capacity to believe that many people were in conspiracy against him and has retained the support of some people who have given evidence in his behalf.  However, the Tribunal is not satisfied that his claims are well-founded.  It has accepted that he was an active participant in public, political and Buddhist matters prior to leaving Sri Lanka.  It has accepted that the situation in Sri Lanka is still one where there is both random and targeted violence.  However, it is not satisfied that the Applicant is in a position to play any public part in Sri Lanka should he return there.  His long absence and the undermining of his reputation, the change of government and the altered situation of the JVP lead to a conclusion that he does not face a real chance of persecution should he return.  The Tribunal has considered his claim in their singuuarity (sic) and cumulatively and is satisfied that his fear of persecution for the reasons he has claimed is not well-founded.’”

reasons for judgment of the primary judge

11                  His Honour addressed the application for review under five headings as follows:

(1)               “Whether decision involved an error of law being an incorrect interpretation of the applicable law”;

(2)               “Whether decision involved an error of law being an incorrect application of the applicable law”;

(3)               “Failure to observe procedures”;

(4)               “No evidence”;

(5)               “Failure to give adequate reasons”.

12                  In relation to (1), his Honour rejected a submission that the Tribunal had incorrectly interpreted the expressions “well-founded fear” and “being persecuted” in the Convention definition.

13                  In relation to (2) his Honour rejected a submission that the Tribunal had wrongly taken into account supposed delay in the making of the application for the protection visa and a submission that the Tribunal had failed to consider the dangers faced by the present appellant from the Liberation Tigers of Tamil Eelam (“LTTE”) because he is Sinhalese.

14                  In relation to (3), his Honour rejected a submission that the inquisitorial role of the Tribunal was unfair and unjust and tended to cause it to arrive at incorrect conclusions.  He also rejected a submission that in referring to reputable and independent sources, the Tribunal used material not available to the appellant with the result that he was denied a full and proper hearing.

15                  In relation to (4), it was submitted by the present appellant that there was no evidence or other material to justify certain conclusions reached by the Tribunal but his Honour held that there was evidence before the Tribunal supporting each of the conclusions attacked. 

16                  In relation to (5), his Honour considered that the Tribunal’s Reasons for Decision were adequate “to reveal to the parties why the decision went the way it did”, citing Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 at [62].

matters arising after the hearing of the appeal

17                  By the time of the hearing of the appeal on 2 March 2001, the appellant had filed and served submissions in support of some, but not all, of his grounds of appeal.  We ordered that he have leave to file and serve further written submissions within 14 days and that the respondent have leave to file and serve submissions in response within 14 days of service of the appellant’s submissions.  On 16 March 2001 the appellant filed, and apparently served, a document headed “Written Submissions on behalf of the Applicant [sic]” and on 30 March 2001 the respondent filed, and we assume served, a document headed “Respondent’s Submissions in Reply to Written Submissions on behalf of the Applicant [sic]”.

18                  On 20 March 2001 the appellant lodged in the Registry a notice of motion and a lengthy affidavit of the appellant affirmed on 20 March 2001 in support.  The notice of motion seeks orders:

(1)               that Mr Viji de Alwis be granted leave to appear “amicus curiae” (Mr de Alwis had appeared for the appellant on the hearing of the appeal);

(2)               that the appellant be allowed to file written submissions within two weeks of service of the respondent’s submissions (which, as noted above, we assume were served on 30 March 2001);

(3)               that the appellant have leave to rely in the appeal on his affidavit of 20 March 2001 and an affidavit of Mr de Alwis yet to be furnished;

(4)               that the appellant have leave to rely in the appeal on further documents not yet identified.

19                  On 24 April 2001, after the members of the Court consulted, the appellant was advised that he was not permitted to file his notice of motion or affidavit but that he was given leave to file and serve any submissions in reply within seven days after that date, that is, by 1 May 2001.  Subsequently, counsel for the appellant requested a longer period and we extended the period until 9 May 2001.

20                  Our reason for not permitting the filing of the notice of motion or affidavit was that it was incontestable that the appellant did not satisfy the requirements for the receipt of further evidence on an appeal under s 27 of the Federal Court of Australia Act 1976 (Cth) as discussed in such cases as CDJ v VAJ (1998) 197 CLR 172 (decided under the comparable subs 93A(2) of the Family Law Act 1975 (Cth)); Guss v Johnstone [2000] FCA 1455 and Heslehurst v Government of New Zealand [2001] FCA 202.  He did not satisfy those requirements because:

·        The further evidence would not have been cogent in favour of a different result before the primary Judge;

·        There is no suggestion that the appellant could not, with reasonable diligence, have adduced the further evidence before the primary Judge, the further evidence being of matters which had been known to the appellant at that time;

·        The further evidence represents an attempt by the appellant to explain away difficulties in his account to which the Tribunal had referred (for example, the affidavit seeks to explain away problematical statements contained in his 388-page submission titled “Report to the Department of Immigration and Ethnic Affairs and the Federal Police of Australia” by the general statement that because of his poor English and unfamiliarity with the Australian legal system, he had been assisted in the preparation of that document by co-prisoners – we note that the affidavit does not identify which parts of the document the appellant now wishes to disown).

·        The further evidence is contained in an 18-page (98-paragraph) affidavit and is of a discursive, rambling nature which covers numerous aspects of the appellant’s life, a consideration of which would be akin to a re-hearing of the entire case and would be inimical to the objective that there be finality to litigation.

21                  Undaunted, on the morning of 9 May 2001 counsel for the appellant sought a further extension of time until Monday 14 May 2001 in which to file his submissions in reply.  We consulted and declined to grant the extension sought but extended the time permitted until 12.00 noon on Thursday 10 May 2001.

22                  Counsel faxed in submissions in reply on 10 May 2001, some by 12.00 noon and the remainder at 3.15 pm.  Among other things he asked the Court to “adjourn [the] hearing sine die or until the CCA, WA [Court of Criminal Appeal of Western Australia] announces its decision on the A-G’s application (or the applicant’s application)” for an order or orders quashing all eleven of the appellant’s criminal convictions.

23                  Having regard to the nature of the proceeding in the Court at first instance as an application for review on limited grounds of a decision of the Tribunal given on 4 February 2000, we refuse the application for the adjournment.

24                  Indeed, to a substantial extent, counsel’s submissions in reply raised matters which have occurred since the Tribunal’s decision or may yet occur, which are necessarily irrelevant to the grounds of review.  For example, he submits that if the appellant’s convictions are quashed, he will apply to this court for an order remitting the matter to the Tribunal “to re-hear” his client’s application.

grounds of appeal

25                  The appellant relies on twelve grounds of appeal.  We will set out the grounds with their supporting particulars as they appear in the amended notice of appeal, when we address them in turn below.

26                  Many of the grounds of appeal are not relevant to the grounds of review stated in the appellant’s application for an order of review in the proceeding at first instance.  Those grounds may be summarised as follows:

(1)               Error of law being various misinterpretations of the Convention;

(2)               Failure to observe procedures required by the Act or regulations to be observed in connection with the making of the decision being:

(a)                the following of an inquisitorial procedure rather than an adversarial one; and

(b)               reliance on “reputable and independent sources” for country information which had not been provided to the appellant before the Tribunal used them in arriving at its decision.

(3)               There was no evidence or other material to justify the making of the decision, particulars of which were stated as follows in the application for an order of review:

“1.       The Presiding member concluded that the applicant had an obligation not to involve himself in corrupt practices.  This was incorrect as there was no evidence that the Applicant engaged in any corrupt practices at all.

2.                  The tribunal arrived at conclusions that the JVP, the LTTE or the Security Agencies and the present government would not persecute him.  This was against the weight of the evidence.”

27                  We turn now to the grounds of appeal.

Ground 1: “His Honour has not addressed the issue of exaggeration nor has his Honour given sufficient reasons for holding against the applicant due to exaggeration.

Particulars: Applicant submitted to Court that any exaggeration be ignored.  However, his Honour has not considered the submissions on the point in arriving at the decision to dismiss his application.”

28                  There is no merit in this ground for the following reasons.  

29                  First, a submission that any exaggeration should have been ignored was not relevant to any of the grounds stated in the application for an order of review. 

30                  Secondly, his Honour did address the issue of exaggeration, although not as the appellant would have liked.  His Honour said of certain of the appellant’s submissions:

“These submissions are also grounded on the Tribunal’s findings of some of the applicant’s claims being exaggerated and implausible.”

31                  Thirdly, the submission which it was said his Honour did not address was hopeless.  It was that in view of all the things that the appellant had suffered, exaggeration was only to be expected and must not tell against acceptance of his testimony.  There are at least two problems with this submission.  First, it assumes acceptance of the allegation that the appellant suffered as he alleged.  But what does “as he alleged” mean: as he alleged with or without the exaggeration?  Secondly, on what basis, given the appellant’s propensity to exaggerate, does one distinguish between the exaggerated account the appellant gave to the Tribunal and the one he would now have accepted as the truth?

32                  We accept that exaggeration is not necessarily fatal to acceptance of a refugee-claimant’s account.  On the other hand, and contrary to the appellant’s submission, it is not necessarily to be disregarded.  We see no error in the treatment of the appellant’s exaggeration by either the Tribunal or his Honour.

Ground 2: “The Refugee Review Tribunal failed to interpret the definition of a ‘refugee’, the phrase ‘owing to a well-founded fear of being persecuted for reasons of race, religion, membership of a particular social group or political opinion’ and the phrase ‘well-founded’ as found in the Convention on Refugees and the Protocol.  His Honour, in dismissing the Application for review, found that the Tribunal has not failed to interpret the definition and the above-mentioned words and phrases correctly.  The Tribunal’s interpretations were erroneous and wrong and therefore his Honour also erred in law.

Particulars: The Tribunal held that if the chance of persecution is 50% or less and if it is due to a convention reason, then the fear is well-founded.  His Honour accepted that interpretation as correct.  It was erroneous and wrong in law.”

33                  The particulars are astonishing.  The proposition stated in the first sentence of the Particulars would indeed be “erroneous and wrong in law”, but because it would be unduly favourable to a refugee-claimant.  In fact, the Tribunal did not state that if the chance of persecution for a Convention reason is 50 per cent or less, then the fear is well-founded and his Honour did not accept the correctness of such a proposition.  What the Tribunal said was as follows:

“A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.” (our emphasis)

34                  In Chan v Minister for Immigration & Multicultural Affairs (1989) 169 CLR 379, Mason CJ said that if an applicant establishes that there is a real chance of persecution, his or her fear “is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring” (at 389).  What the Tribunal said was in accord with the Chief Justice’s statement.  The learned primary Judge correctly recognised this and was correct in finding that the Tribunal had not erred in law in the present respect or that its reasons were “insufficient and most inadequate”.

Ground 3: “The Tribunal considered that though the delay to apply for refugee status was not fatal, it was a factor it could consider in arriving at the conclusion it arrived at, that the delay by the applicant in making the application for a Protection Visa in Australia was such that it is a factor that indicated that the applicant’s fear was not well-founded.  The Court found that the Tribunal’s view was correct.  This is erroneous and wrong in law.

Particulars: His Honour states in the judgment that ‘the Tribunal used the factor of delay in two ways.  The first was that it considered the delay did not fatally undermine the applicant’s claims to have a strong fear of returning to his own country.  Secondly, it considered the delay was a factor in considering whether, seven years after his arrival in Australia and almost ten years since he left his country, his claim for protection from persecution was well-founded.  Considered in the context of the Tribunal’s subsequent reasons, I agree with the submissions for the respondent that this latter statement demonstrates only that the delay by the applicant was relevant in that events that had occurred in Sri Lanka in the intervening years covered by the period of delay were required to be taken into account.  That was also true in relation to the applicant’s personal history during that period.’  His Honour has thus failed to take into account facts that were relevant and considered facts that were irrelevant.”

35                  The Tribunal did not find that the appellant’s delay in applying for a protection visa fatally undermined his claim to have a strong fear of returning to Sri Lanka but thought it was a factor to be taken into account.

36                  Counsel for the appellant refers to other cases in which delay has not been fatal and submits that the Tribunal should have accepted the appellant’s explanation for his delay.  The significance of delay is a matter for the Tribunal to determine in the context of all the facts of a particular case.  No error of law is shown merely because another case can be found in which the decision-maker was not persuaded against an applicant by a similar or longer period of delay.  Similarly, the assessment of the appellant’s explanation of his delay was a factual matter for the Tribunal.

37                  The appellant’s submission goes to the merits of the Tribunal’s decision. 

Ground 4: “His Honour’s decision involves an error of law being an incorrect application of the applicable law and is therefore a breach of the legal principle in section 476 of the Migration Act.

Particulars: The Tribunal misunderstood the fact that the applicant’s race is Sinhalese.  The Tribunal thereby failed to understand the concept of persecution in the Convention and the Protocol.  His Honour has also not understood the difference.  The applicant’s case was and is that he feared persecution within the terms of the 1951 Convention relating to the Status of Refugees (‘together the Convention’) on the basis of

·        his Religion (Buddhism);

·        his political opinion (support for the United National Party);

·        his Race (Sinhalese); and

·        his membership of particular social groups – (‘Buddhist Liberation Front’; ‘National Heritage Organization’; ‘Lion Flag (Sri Lankan) Flag Organization’; ‘Sinhalese Buddhist Organization’; and ‘Sri Lanka Organization’.

His Honour considered the evidence in respect of the Race as the evidence of his belonging to a Social group and failed and neglected to consider the submissions on the evidence regarding the fact that the Applicant belonged to the particular social groups mentioned above.  This caused grave prejudice and detriment to the Applicant’s case.”

38                  This ground is confusing and is unrelated to any of the grounds of review stated in the application for an order of review.  The complaint seems to be twofold: that the appellant’s Sinhalese race was treated as membership of a particular social group and that his membership of each of the five organisations mentioned was not addressed. 

39                  The Tribunal said:

“Clearly as he [the present appellant] is Sinhalese and Buddhist, he is, in a general sense, of the class of persons whom the Tamil Tigers regard as their oppressors.  However, the tactics of the Tigers do not mean that all Sinhalese Buddhists are their targets.  They do target public, particularly government, figures.  They also attack public buildings and institutions.  They also attack their own people.

However, the Applicant is also a Buddhist monk and monks and Buddhist sites have been targets of the LTTE.¼”

His Honour stated:

“The applicant’s claims included one based on his membership of a particular social group, namely the Sinhalese.  The Tribunal dealt with the claims as made to it.  The reference to the applicant being a Sinhalese was a reference to his race.”

40                  It may be that the appellant attacks his Honour’s reference to the appellant’s Sinhalese race as “membership of a particular social group” but there is no substance to this criticism: both the Tribunal and his Honour recognised that the appellant was of the Sinhalese race.  But even if they had thought that “Sinhalese” was a reference to a particular social group and not to race, the misapprehension would lead nowhere because they clearly recognised that the appellant was claiming to have a well-founded fear of persecution because he was Sinhalese and that this was a Convention ground.

41                  Ground 4 may also involve the contention that the appellant’s claim before the Tribunal was that he had a well-founded fear of being persecuted because of his membership of each of the five organisations mentioned and that the Tribunal did not deal with such a claim and the trial Judge did not hold that it had erred by failing to do so.  In his written submissions on the appeal, counsel for the appellant listed the five social groups as follows:

·        Buddhist Liberation Front;

·        National Heritage Organisation;

·        Lion Flag (Sri Lanka Flag) Organisation;

·        Sinhala Buddhist Organisation;

·        Sri Lankan Organisation to eradicate Terrorism.

42                  In our view, in the way in which the appellant made his claims before the Tribunal, his membership of these groups were emanations of his religion (Buddhism), political opinion (support for the United National Party) and race (Sinhalese), all of which were addressed by the Tribunal.  We do not think that the Tribunal erred by failing to mention every one of the five organisations and to deal with his membership of each as if it was being advanced as an independent basis of a well-founded fear of persecution.

Ground 5: “The Tribunal held that the Applicant did not have a well-founded fear of persecution because the Applicant remained alive to this day.  His Honour held that the tribunal’s finding on the subject was correct.  This was erroneous and caused prejudice to the case of the Applicant.

Particulars: His Honour states with approval, a statement made by the Tribunal that there were numerous opportunities for harm to be done to him but, apart from one incident, he remained unscathed.  It considered implausible that all the alleged assassins would be so inept as to so frequently miss their target.  All the claimed death threats and attempts on his life were found not to be real.”

43                  In par (6) of his summary of the findings of the Tribunal (set out earlier), the learned primary Judge summarised the following passage from the Tribunal’s Reasons for Decision:

“The Tribunal is not satisfied that the Applicant was a constant target of violence as he has claimed.  A difficulty arises from the apparent failure of the groups he accused of actively willing him harm. The Applicant has claimed to have been under threat of death in a range of localities, from Amparato, Batticaloa to Colombo.  There were numerous opportunities for harm to be done to him but, apart from the last incident which is discussed below, he remained unscathed.  The Tribunal finds it implausible that all the alleged assassins would be so inept as to so frequently miss their target.”

44                  It is not correct, as the fifth ground of appeal asserts, that his Honour approved of this finding of the Tribunal – he merely summarised it.  In any event, the “incorrectness” of a finding of the Tribunal is not an available ground of review.  The appellant seeks, by the present ground of appeal, to attack the Tribunal’s decision on its merits.

Ground 6: “The Tribunal stated that ‘whenever the protection of the country of Nationality is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee’ His Honour agreed with the submission for the respondent that this statement did not raise the standard of proof in relation to the Convention definition well-founded fear or impose a new burden on the applicant.  His Honour was erroneous in stating so and has thereby erred in law.”

45                  The appellant submitted to the primary Judge that the Tribunal’s statement set out above imposed an additional burden on him “to find a ground based on well-founded fear before he can refuse to avail himself of the protection he is fleeing from”.  In our view, his Honour was correct to accept the respondent’s submission that the Tribunal’s statement did not impose any new and unwarranted burden on the appellant and did not demonstrate any misinterpretation by the Tribunal of the expression “well-founded fear” in the Convention definition.

Ground 7: “His Honour has held that the inquisitorial procedure followed by the tribunal did not breach the provisions of sections 420 and 476 of the Migration Act.  This was erroneous and his Honour has therefore erred in law.”

46                  Contrary to the appellant’s submissions, in following an inquisitorial procedure the Tribunal did not fail to comply with s 420 of the Act.  The Act prescribes little detail about the mode of review to be followed by the Tribunal, although provisions in Divisions 3 and 4 of Pt 7 of the Act, such as ss 420 and 424, indicate what has been described as a “non-adversarial, quasi-inquisitorial mode of operating” (Crock, Immigration & Refugee Law in Australia (Federation Press, 1998) at 255).  In any event, a failure to comply with s 420 does not establish the ground of review provided for in par 476(1)(a) of the Act: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gleeson CJ and McHugh J at 628-629, Gaudron and Kirby JJ at 635.

Ground 8: “His Honour has held that a case of an apprehended bias is not within the jurisdiction of the Court to review: s 476 of the Act.  This is an error of law”.

47                  It was not a ground of review in the application for an order of review that the Tribunal’s decision had involved a breach of the rules of natural justice by reason of apprehended bias.  It is correct, however, as the primary Judge noted, that the first particular of ground 2 of that application concerning an alleged failure to observe required procedures concluded with the words “it also caused an apprehended bias”.  The “it” in this sentence referred to the adoption by the Tribunal of what the application designated an “inquisitorial/accusarial” method rather than an adversarial one.

48                  His Honour observed that before him no case of actual bias had been pressed.  He correctly observed that apprehension of bias is not a permitted ground of review: cf pars 476(1)(f) and 476(2)(a) of the Act.

49                  In his further written submissions on the appeal filed with leave on 16 March 2001, that is, after the hearing of the appeal, counsel for the appellant asserts “There was apprehended bias and actual bias in this case”.  It is quite unacceptable for a legal practitioner to follow such a course.  Actual bias had not been referred to in the application for an order of review or in the submissions made to his Honour or in the grounds of appeal.  Yet worse was to come.  Counsel’s submissions went on to state:

“The fact that the member who heard the case in the Tribunal was a lady member may be seen as an Actual Bias, according to the Applicant [sic – appellant].

(His Honour Nicholson, J also has been influenced by these convictions.)”

Clearly, this submission should never have been made and was made by a barrister who seems to have no awareness of his responsibilities.  The submission was repeated in the appellant’s submissions in reply, filed, as we have already mentioned, on 10 May 2001.  The seriousness of an allegation of actual bias was emphasised by Finkelstein J in Bilgin v Minister for Immigration & Multicultural Affairs (1997) 149 ALR 281 at 282.

50                  We will not entertain the submission that there was actual bias on the part of the Tribunal, but in fairness to the presiding Member we indicate that if we had entertained it we would have had no hesitation in rejecting it as meritless.

Ground 9: “His Honour has held that the Tribunal was not required to give the applicant what the Tribunal referred to as ‘reputable and independent sources’ Tribunal used in arriving at the decision.  This was erroneous and was therefore an error of law, breaching the provisions of the sections 420, 424A and 476 of the Migration Act.”

51                  This ground of appeal reflects a particular of Ground 2 of the application for an order of review.  His Honour correctly held that s 420 of the Act does not require the Tribunal to disclose in advance of decision every piece of country information which it obtains with respect to an application.  But even if s 420 did impose such an obligation on the Tribunal, a failure to comply with s 420 is not a failure to observe a procedure required by the Act “to be observed in connection with the making of the decision” in question for the purpose of par 476(1)(a) of the Act: Eshetu at 628-629, 635.

52                  Section 424A of the Act, to which Ground 9 also refers, is as follows:

“(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.”

53                  The primary Judge was correct in stating that the obligation of the Tribunal to give information to an applicant is governed by this section.  His Honour was also correct in holding that the country information on which the Tribunal relied was of the kind referred to in subs 424A(3), with the result that s 424A does not apply to it: cf Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 (Carr J) at [15], [16].

54                  The only instance of country information obtained by the Tribunal which was specifically about a person was information that on 26 May 1995 the head of the Buddhist clergy in the east, Kithalagama Seelalankara, who had been very critical of the LTTE and had recently ordained some young Tamils as Buddhist monks despite LTTE opposition, was shot by LTTE gunmen.  But this information did not fall within par 424A(1)(a) because it was not information that constituted the Tribunal’s reason or a part of the Tribunal’s reason for affirming the decision under review: the information was favourable to the present appellant, while the Tribunal’s decision was to affirm the Delegate’s decision refusing him a protection visa.

Ground 10: “His Honour held that the ‘no evidence ground’ has not been made out.  His Honour has erred in law in arriving at that conclusion.”

55                  This ground of appeal reflects the third ground of review in the application for an order of review, which was set out earlier.

56                  In his Reasons for Judgment, the primary Judge noted that the first particular of the ‘no evidence’ ground of review was not pressed in submissions before him.  In relation to the second particular, his Honour considered that it could not be maintained as it would involve the Court in impermissibly weighing the merits determined by the Tribunal.  We agree.

57                  It appears also from the primary Judge’s Reasons for Judgment that his Honour permitted the present appellant to go beyond his application for review by submitting that the Tribunal had made certain other findings in the absence of justifying evidentiary material.  His Honour rejected those submissions, in part because he held that there had been before the Tribunal justifying evidentiary material and in part because he held that the submissions were in truth about the merits of the various findings.  The appellant has not demonstrated before us error in that respect by the primary Judge.  In any event, certain of the findings were not of facts at all, but were predictions that certain events would not occur in the future, including persecution for a Convention reason.  Findings of that type do not fall within par 476(1)(g) of the Act read with par 476(4)(b) of the Act: see, for example, Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193 (FCA/Sackville J) at 204.

Ground 11: “His Honour held that there was no breach of the provisions of section 430 of the Act.  His Honour erred in law in the interpretation of the law on the provisions of the section 430 of the Act.

58                  It was not a ground of review in the application for an order of review that the Tribunal had not complied with s 430 of the Act.  However, in written submissions made on behalf of the appellant as applicant before his Honour it was claimed that the Tribunal had failed to give adequate reasons for concluding that the appellant did not face persecution by the JVP, for doubting the involvement of the JVP in the murder of the appellant’s mother, for deciding that the LTTE would not harm the appellant now, and for the Tribunal’s decision that the appellant would not be a public figure in Sri Lanka if he were now to return to that country.

59                  We think his Honour was correct in concluding, having regard to Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 at [62], that the Tribunal’s Reasons for Decision met the requisite standard.

60                  (In the course of his written submissions relating to this ground counsel has, for the first time, submitted that the appellant was persecuted for reason of his nationality – an absurdity, since his alleged persecutors were also Sri Lankan nationals.)

Ground 12: “His Honour has not given adequate reasons for his Honour’s decision to dismiss the Applicant’s Application for Review.”

61                  No particulars of this ground of appeal have been given.  The appellant’s written submission in support of this ground is as follows:

“His Honour also failed to address the issues correctly due to the failure on the part of the Tribunal failing to address them well and failing to analyse the evidence or come to correct conclusions.

Had his Honour addressed all the issues, the judgment would have been much more comprehensive.  His Honour has not analysed the case well, nor given sufficient reasons for dismissing the application.”

There is no merit in this submission for the reasons previously given.

62                  His Honour did not err in rejecting the grounds of review set out in the application for an order of review and the additional grounds contained in the submissions made on behalf of the appellant before his Honour.  There is no support for this twelfth ground of appeal.

conclusion

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

Associate:

Dated:              18 May 2001