FEDERAL COURT OF AUSTRALIA

Thirukkumar v Minister for Immigration and Multicultural Affairs

[2001] FCA 864

MIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – report of psychologist stating applicant’s psychological condition consistent with her history of trauma – Tribunal adverting to report but otherwise not accepting applicant’s account – whether failure to “consider” application – whether failure to consider “relevant” matter – whether failure to determine “substantive issue”

Migration Act 1958 (Cth) s 476(1)(b),(c) and (e)

Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [70] to [72] and [78] applied

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [75], [76], [78], [80] to [82] applied

Paramantham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 64 mentioned

R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242 applied

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [65] – [67] applied

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42 applied

NAGAMUTHU RANJINIDEVI THIRUKKUMAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 42 OF 2001

HEEREY J

10 JULY 2001

MELBOURNE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs, including reserved costs.

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

REASONS FOR JUDGMENT

1                     The applicants seek review under Pt 8 of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant protection visas.  The first applicant is the wife of the second applicant.  His application is largely dependent on hers.

2                     The applicants are Tamil Sri Lankans.  They arrived in Australia on 19 December 1995 and applied for protection visas on 31 January 1996.  This application was refused by a delegate on 15 January 1997.  An earlier affirmation of that refusal by the Tribunal was set aside by a consent order of this Court.  The decision of the Tribunal differently constituted which is the subject of the present review was made on 18 December 2000. 

3                     The case on review to this Court was based on the way the Tribunal dealt, or rather, it is said, failed to deal, with a psychologist’s report which said that the first applicant’s present psychological disorders were “highly and specifically consistent with her history of trauma”.

The claims of the applicants

4                     The first applicant claimed to have a well-founded fear of persecution for reason of imputed political opinion and race.  She is a Tamil, born in 1969 in the Kandy district of Sri Lanka.  As a result of communal violence in July 1983 she and her family moved to Killinochi in the north of Sri Lanka.   She finished her education there and assisted the Liberation Tigers of Tamil Eelam (LTTE) by nursing wounded persons in underground hospitals.  In 1987 members of the Indian Peace-Keeping Force (IPKF) invaded the Jaffna hospital where she was working and massacred about 100 of the medical staff and patients.  She was present at the time.

5                     After this she moved to Colombo where she worked in a private hospital until 1990.  She then decided to travel to the north of Sri Lanka. She claimed that her reason for doing so was her fear of potential violence in Colombo.  She thought that it would be safer in the north of Sri Lanka.  She also claimed that she wanted to help the people in Jaffna.  Her husband did not accompany her on this journey.  She was arrested near Vavuniya by the Eelam People’s Democratic Party (EPDP) who handed her over to the Sri Lanka army.  She was taken to an army camp near Vavuniya and wrongly identified as a cadre of the LTTE.  She was detained at this camp but then moved to Thallady in the Mannar district, some 70 kms further east.  This detention (the first detention) lasted from October 1990 until the end of December 1991.  During the first detention she was tortured and raped.  After her release she worked in a hospital in Adampan near Thallady.

6                     She was again arrested by the security forces in August 1992 (the second detention) after a bomb explosion in Jaffna and accused of providing the LTTE with medical supplies.  She was moved to several camps and released in April 1993.  She then worked as a nurse for six months in Mannar.

7                     She returned to Colombo at the end of 1993 where she worked in a dispensary at Kotahena and was residing with her husband at Dematogoda in Colombo.  On 20 October 1995, following the bombing of the Colombo oil refinery, she was detained (the third detention).  After her release she went into hiding until her departure for Australia on 17 December 1995.

The Tribunal’s findings

8                     The Tribunal accepted that the first applicant had been displaced from Kandy to Kilinocchi and that she had undergone some training in nursing, including at the Jaffna hospital.  It found that she had left Jaffna for Colombo in August 1987, that is before the attack of the IPKF on the Jaffna hospital, which occurred on 21 October 1987.  It also found that she had not been detained for fourteen months in 1990 as she claimed, nor had she been detained in 1992 as claimed.  It found that she did not have a history of LTTE support such as would attract the interest of the security forces.  Finally, the Tribunal accepted that the first applicant may have been detained in 1995, following the explosion at the Kolonnawa oil refinery, until her bona fides could have been established and following intervention by her lawyer.  However, it found that this was not persecution and was part of a legitimate security measure.  After referring to independent country information, the Tribunal found that the first applicant did not have a well-founded fear of persecution by reason of her ethnicity or her political opinion.

9                     Essentially the Tribunal made adverse credibility findings in respect of the first applicant based largely upon inconsistencies in her claims at various stages in the application process.  It further found inconsistencies between her claims and those of her husband and other material relied upon.  It also found inconsistencies between those claims and the independent country information.  Further, the Tribunal expressed concerns about the “timeliness, veracity and probative value” of some of the documentation provided by the applicant.

10                  The Tribunal’s reasons included the following observations as to inconsistencies in the applicants’ case:

(a)        the first applicant originally claimed that she had left Jaffna in August 1987.  However, it was only after the decision of the delegate, in which express reference was made to country information indicating that the IPKF attack on the Jaffna hospital was in October/November 1987, that the first applicant changed her claims about the date of her departure from Jaffna;

(b)        country information indicated that official alterations to passports in Sri Lanka required the attendance of the passport holder unless they were ill or disabled.  The first applicant’s passport was altered on 27 October 1995, recording her marriage to the second applicant, at a time when she claimed she was in detention;

(c)        the description of how the passport was altered had changed a number of times in the course of the application process.  First it was claimed the first applicant’s husband had taken the passport to the authorities on 27 October 1995; then it was claimed that a travel agent had made illegal alterations in the passport; this was later expanded to a claim that the travel agent had made the changes in order to enable the first applicant to leave the country.  Yet the altered name did not remove the first applicant’s maiden name but simply added to it.  Moreover, the first applicant’s photo was not altered and the passport contained her actual signature;

(d)        it was implausible that the first applicant would leave her husband and travel to the north of the country by herself, in view of the fact that neither she nor her husband is a Jaffna Tamil and their National Identity Cards (NIC) would have so stated and in view of the fact that, contrary to the first applicant’s claims, country information indicated that, at the relevant time, it was safer in Colombo than in the north of Sri Lanka;

(e)        given the first applicant is not a Jaffna Tamil and it would have been so stated in her NIC, and given that her only connection with Jaffna was that she had lived there three years earlier, it was not plausible that she would have been detained in 1990 as she claimed;

(f)         there was an inconsistency between her protection visa application which stated that she commenced work at the Manner Geriatric Hospital in June 1991, while she had also claimed that she had not been released from detention until December 1991.

The psychologist’s report

11                  There was before the Tribunal a ten page report from psychologist Christina Curry of The Victorian Foundation for Survivors of Torture Inc.  The report is undated but was sent to the Tribunal by fax on 9 March 2000.

12                  The report includes a detailed history taken from the first applicant and records depressive symptoms including severe weight loss and suicidal thought, difficulties with disclosure, post traumatic and other anxiety symptoms and physical symptoms including stomach pain, menstrual pain, chest constriction and intense intermittent headaches.  The report concludes as follows:

“                                              Conclusions

Mrs Thirukkumar’s present difficulties, particularly her somatic symptoms, avoidance, and psychosexual difficulties, are highly and specifically consistent with her history of trauma.  Her eating difficulties can be interpreted as an attempt to regain some control over her life, and as a means of not dealing with her problems.  Mrs Thirukkumar is living in the ‘here and now’, unable to move forward as a result of her undetermined status, and unable to move backwards, as a result of the frightening and terrifying thoughts that she finds difficult to control.

I believe that Mrs Thirukkumar’s personality and current coping strategies are also consistent with the major life events that she has experienced as traumatic and largely outside her control.  She is fearful of making decisions, and has placed her confidence in others, at times to her detriment.  She adopts a largely passive, dependent coping style.  This coping style, although it can be attributed to other factors, is also consistent with the history of trauma that she has related.

The combination of these factors, taken together, is highly consistent with a history of trauma and imprisonment, and provides evidence in support of the substantial nature of Mrs Thirukkumar’s claims for protection.”

13                  The only reference to the Curry report in the Tribunal’s reasons comes in the context of discussion of the first detention, alleged to have occurred in 1990-91.  The Tribunal says:

“Given the above discussion, the Tribunal is not satisfied that the applicant was detained as claimed for 14 months either in Thandikulam or Thalladi.  This finding does not dismiss the claim that the applicant has made about being raped twice. The Tribunal simply notes that its finding is related to her claimed detention in Thandikulam and other camps during that period.  The Tribunal concludes that the applicant was not raped in detention. There is no other evidence before the Tribunal which would allow it to make a finding that rapes did occur and if so that they occurred for a Convention reason.  The reports from medical practitioners and other health professionals represent a reflection of the applicant’s own recounting of her story, indeed the applicant may well have been subjected to rape at some point and in some location but given the findings above, the Tribunal is not satisfied that if rapes did occur they are related to a reason under the Refugees Convention.”

14                  There were some other medical reports before the Tribunal.   It is not necessary to refer to them for present purposes.  It was common ground that “reports from medical practitioners and other health professionals” includes the Curry report. 

Applicant’s argument on review

15                  Counsel for the applicants submitted that the “critical issue of the consistency between the (first) applicant’s account and her symptomatic presentation” was not addressed by the Tribunal.

16                  This was said to amount to

(i)         a failure to “consider” the application:  ss 47, 54, 55, 65 and Pt 7 of the Act and in particular ss 414(1) and 415, Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [70] to [72] and [78];

(ii)        a failure to consider a relevant matter:  Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [75], [76], [78], [80] to [82];

(iii)       a failure to determine a substantive issue:  Paramantham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 64.

17                  On that basis it was said the decision of the Tribunal was beyond its jurisdiction (s 476(1)(b)), not authorised by the Act (s 476(1)(c)), and involved an error of law (s 476(1)(e)).

Conclusion on the review

18                  Before it could be said that the Tribunal had failed to “consider” the application in the sense contended for, that is to say to an extent that amounting to want of jurisdiction or error of law, this Court would need to be satisfied that “the ostensible determination (was) not a real performance of the duty imposed by law upon the Tribunal”:  R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242 per Rich, Dixon and McTiernan JJ, Anthonypillai at [75].

19                  But the Curry report was no more than a piece of evidence.  Its importance for the Tribunal’s fact finding process depended largely on the Tribunal’s acceptance of the truthfulness and reliability of the history given to the psychologist by the first applicant.  Moreover, while the psychologist’s conclusion might have been based on a history of trauma that was at least partly true, it was open to the Tribunal to consider that the psychologist was in no position to say what, if any, of that trauma was of a kind that is relevant for a claim under the Convention.

20                  Even if the Tribunal had not referred to the Curry report at all, no reviewable ground would be established.  It was not necessary for the Tribunal to give a line-by-line refutation of the evidence for the applicant, either generally or in those respects where there was evidence that was contrary to findings of material fact made by the Tribunal:  Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [65] – [67].

21                  The extent to which the considerations ground (taking an irrelevant consideration into account or failing to take a relevant consideration into account) has, notwithstanding s 476(3)(d) and (e), been made available by Yusuf  has not yet been authoritatively determined.

22                  Counsel for the Minister argued that a consideration is not “relevant” for the purposes of the considerations ground unless the decision-maker is bound to take it into account.  He cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42.  Counsel further submitted that the Migration Act is not the kind of “particular statute” referred to in Yusuf where McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said (at [74]):

“This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration.  It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker.  What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law.  They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.”

23                  So, counsel argued, for the purposes of Pt 8 review there are no “relevant considerations “at all”.

24                  I do not accept this argument.  The passage in Yusuf appears in the immediate context of a discussion of the considerations ground as a general principle of administrative law.  Their Honours had earlier said (at [73]) that:

“The considerations that are, or are not, relevant to the Tribunal’s task are to be identified primarily, perhaps even entirely, by reference to the (Migration) Act rather than the particular facts of the case that the Tribunal is called on to consider.”

25                  While heavily qualified, this passage at least leaves open the possibility of particular factual issues being “relevant” considerations.  This conclusion is strengthened by a latter passage where their Honours say (at [75], citations omitted):

“As was pointed out in argument, applicants for protection visas often, but not invariably, claim that they have been subject to persecution.  In Minister for Immigration and Ethnic Affairs v Guo, six members of the Court said:

‘In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.  It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.’

If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error.  The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past).  It is not accurate, however, to say that the Tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well-established limits.  If it is not intended to have that effect, it is not useful to formulate the duty in that way.  Rather, the relevant inquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations.”  (Emphasis added)

26                  Later their Honours say (at [78]) that a complaint that the Tribunal failed to make some relevant finding of fact “will often amount to a complaint of error of law or of failure to take account of relevant considerations”.  This would be consistent with a view of the Act as not being a statute which, in respect of the grant of a refusal of protection visas, confers an unconfined discretion:  Peko-Wallsend at 40.  And Gleeson CJ said (at [37]):

“As already indicated, if in its written statement setting out its decision, the Tribunal fails to refer to or fails to make findings with respect to a relevant matter, it is to be assumed, consistently with the clear directive in s 430 of the Act, that the Tribunal has not regarded that question as material.  And depending on the matter in issue and the context in which it arises, that may or may not disclose reviewable error.  For example, the failure to make a finding on a particular matter raised by the applicant may, in some cases, reveal an error of law for the purpose of s 476(1)(e) of the Act.”

27                  So it can perhaps be said that while Yusuf closes the s 430 door it opens the door of the considerations ground with the consequence that the ambit of Pt 8 review may be  wider than previously thought.  There must have been several hundred decisions on Pt 8 review since the 1992 amendments removed a number of judicial review grounds, including the considerations ground, which were available on review under the Administrative Decision (Judicial Review) Act 1977 (Cth).  In none that I am aware of has the considerations ground been raised, presumably because of the perceived effect of s 476(3)(d) and (e).

28                  Moreover, while Yusuf holds (at [69]) that what is or is not a “material” issue for the purposes of s 430 is a matter for the Tribunal, it would seem the conclusion as to what is or is not a “relevant” consideration for the purposes of the considerations ground must be a matter for the Federal Court on Pt 8 review since considerations ground error is an error of law (see [82]).

29                  And while “material” may be virtually synonymous with “relevant”, “material issue” is a narrower concept than “relevant consideration”:  Yusuf at [7] per Gleeson CJ.  An “issue” in the context of an administrative decision would usually mean a point or question to be decided, something involving dispute, or at least uncertainty.  However a consideration, while including an issue, could extend to take one example, to matters which are not in dispute, for example matters such as the age or health of an applicant.

30                  But however the matter is approached, it is clear in the present case that the Tribunal asked itself the correct question, that is to say, whether in the light of the history asserted by the first applicant she had a well-founded fear of persecution on grounds of imputed political opinion and race.  In the course of answering that question the Tribunal was not obliged to advert to every piece of evidence which might have supported the claims.  In any case, the particular evidence in question, the Curry report, was adverted to.  The weight, if any, to be attributed to it was entirely within the province of the Tribunal’s fact finding function.

Orders

31                  The appeal will be dismissed with costs, including reserved costs.

Associate:

Dated:              10 July 2001