FEDERAL COURT OF AUSTRALIA

Jegatheeswaran v Minister for Immigration & Multicultural Affairs

[2001] FCA 865

MIGRATION ‑ Judicial review ‑ Refugee Review Tribunal ‑ Cumulative effect of harm ‑ Decision based on particular fact ‑ "No evidence" ground of review ‑ Meaning of finding of fact ‑ Nature of facts ‑ Ultimate fact ‑ Critical fact ‑ Evidential fact ‑ Distinction between finding of fact and process of reasoning.

Migration Act 1958 (Cth) s 476

Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 applied

Tharmalingam v Minister for Immigration and Multicultural Affairs (Lindgren J, 19 May 1998, unreported) cited

Kaur v Minister for Immigration and Multicultural Affairs [2000] FCA 1401 cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

British Launderers’ Research Association v Borough of Hendon Rating Authority [1949] 1 KB 462 cited

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 cited

Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 cited

Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 352 considered

MARKANDU JEGATHEESWARAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1367 OF 2000

SUNDBERG, EMMETT & FINKELSTEIN JJ

9 JULY 2001

SYDNEY

ON APPEAL FROM A SINGLE 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 SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

SUNDBERG J:

1                     For the reasons given by Emmett and Finkelstein JJ the first and second of the appellant’s complaints have no substance.  As to the third complaint, namely the attack on the finding that Tamils from the north of Sri Lanka do not face a real risk of persecution unless there is something that will raise their profile above that of other Tamils, I agree with their Honours that the Tribunal was entitled to infer from the US Report and the DFAT cable that a Tamil from the north does not face a risk of persecution unless there is something else about that Tamil that would attract the attention of the authorities.  I would dismiss the appeal.

Associate:

Dated:              9 July 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

EMMETT J:

2                     The appellant arrived in Australia on 29 October 1996 with his wife and two children.  The appellant and his family are all citizens of Sri Lanka.  On 21 November 1996, they lodged applications for protection (class AZ) visas with the Department of Immigration and Multicultural Affairs.  On 12 November 1997, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), refused to grant protection visas.  On 20 November 1997, the appellant and the members of his family applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision.  On 28 June 2000, the Tribunal affirmed the decision not to grant protection visas.

3                     On 9 August 2000, the appellant filed an application to the Court for an order of review of the decision of the Tribunal.  On 30 November 2000, a judge of the Court ordered that the application be dismissed and that the appellant pay the Minister’s costs.  From those orders, the appellant now appeals to the Full Court.

THE appellant’s claims and the TRIBUNAL’S FINDINGS

4                     The appellant was born and raised in Jaffna, which was peaceful in the time when he lived there.  In 1983 he relocated to Colombo, where, in July 1983, communal riots broke out.  As a result of the violence, the appellant was forced to move to a camp for Tamil people, where he stayed for two days.  He then returned to Jaffna where he remained with his family until September 1983.  The appellant subsequently travelled to India for study. 

5                     The appellant lived in India from 1983 until December 1987 during which time he completed a Bachelor of Commerce degree at the University of Madras.  His student visa for India expired in December 1987 when he finished his course. He was not allowed to stay in India without a further renewal.  He returned to Colombo at the beginning of 1988.  In March 1988, the appellant was accepted into the Muslim Commercial Bank as a clerk.  He maintained his position with that company until 1996.  In 1993 he married.  The first few years of his married life in Colombo were relatively peaceful.  However, by 1995, the appellant claimed that the situation in Colombo had substantially changed.  He claimed that, owing to continuous harassment from the armed forces and the Liberation of Tamil Tigers Elan (“LTTE”), he and his wife and children were forced to flee to Australia.

6                     The appellant claimed that, following an attack on the oil depots in Colombo by the LTTE on 20 October 1995, the security forces rounded up Tamils in his neighbourhood.  He claimed that five members of the security forces came to his house in the middle of the night and questioned him about a Tamil magazine that he had been reading for some time.  He was taken into custody for further investigation.  He was extensively interrogated about his jobs, friends and political views “on the ethnic issues”.  In particular, he was asked whether Tamils in his neighbourhood sympathised with the LTTE and whether he had any knowledge of LTTE shelters or hide-outs in his area.

7                     After the questioning finished, the appellant was taken to a cell where eight other Tamil prisoners were held.  He shared a small cell for two days.  He claimed he was verbally abused, that there were no proper sanitary facilities and that the conditions were inhumane.  He was photographed and fingerprinted and, after two days, released without any charges being laid.

8                     On 31 January 1996, there was a massive bomb explosion in the heart of Colombo, which killed many people at the Central Bank.  At the time of the blast, the appellant was in his office about 200 metres away from the site of the explosion.  Soon after the explosion, the armed forces began hunting for suspected LTTE bombers.  The appellant managed to reach home safely.  Since he was not harassed on that occasion, he felt that things were getting better.

9                     However, the appellant claimed that following the explosion, for approximately a month, Colombo was not safe for Tamil people to walk around freely.  Tensions mounted again in the aftermath of a bomb explosion at a railway station on 24 July 1996.  On that day, the appellant was travelling from his office to home and saw armed forces checking all vehicles and identity cards of passengers.  He was required to get off his bus and show his national and bank identity cards.  He was body searched and asked whether he had any relationship with the LTTE.  Although he was able to speak good Sinhala, he lost his composure, because of his fear, and replied in English.  He claimed that one of the interrogators shouted at him and punched him twice on the face.  Obscene words were used and a demand was made that he should talk in Sinhala.  After 15 minutes, however, he was freed.  He had to see a doctor for his facial injury.

10                  The Appellant claimed that, on 15 August 1996, two unknown persons came to the bank in which he worked and asked about account details of Tamils in Colombo.  He told them to see the manager of the bank, but they insisted that he should give them information without the knowledge of the manager.  They showed him LTTE identity cards but he categorically refused to give them any information regarding bank account details.

11                  After a week, the two people came to see him again and insisted that he should give them information.  When he refused, they explained how non-collaborators had been punished by the LTTE in Sri Lanka.  He claimed that, since that incident, he felt his life may be in danger if he continued to live in Sri Lanka.

12                  The appellant also claimed that, on 26 September 1996, the security forces entered his home at 8 pm.  There were about 15 men with automatic weapons.  They asked him to produce his bank statements.  When he could not produce them all, they began to ransack his home and damaged valuable furniture.  He claimed that he was treated like a criminal in front of his family.  After about an hour they found a receipt for a contribution to a Tamil refugee organisation that the appellant had made some years before.  He was taken into custody and brought to a military camp for further interrogation. 

13                  He claimed that he was put into a cell there, which was already overcrowded with six Tamil youths.  The following morning he was taken to another room and interrogated about his place of work, his friends and financial contributions to the LTTE.  He was severely beaten on his heels with a plastic pipe filled with sand.  During his detention, he and his fellow Tamil inmates were forced to carry out menial cleaning tasks and received inadequate food.  After four days of interrogation and torture he was released on condition that he should present himself to a police station every month.

14                  The Tribunal accepted that the continuing struggle by the LTTE and the bombing campaign in Colombo had led to large-scale detentions and arrests of young Tamil males and females.  However, the Tribunal found that most were released after identity checks lasting several hours to several days. 

15                  The Tribunal found that the appellant had added to his history in an attempt to bolster his claims.  It accepted that the appellant and his wife are Tamils from Jaffna and that as a result, they may have their identities checked from time to time in Colombo and may even be detained for short periods while such identity checks are made.  However, the Tribunal found that such identity checks, including detentions for short periods up to a few days, are not serious enough to constitute persecution.

16                  The Tribunal found that the appellant’s claims that LTTE members approached him at his bank on 15 August 1996 were not credible.  The Tribunal also found that the appellant’s claims of his home being searched, and later, of torture and detention were also not credible and were rejected.  Finally, the Tribunal rejected the appellant’s claims that he had to report monthly to the police. 

17                  The Tribunal accepted the appellant’s claim that he received money from Australia from his in-laws but did not accept that he came to the attention of the authorities in Sri Lanka as a result.  The Tribunal therefore found that the appellant did not acquire a pro-LTTE profile because of such money transfers.  The Tribunal was not satisfied that the appellant was being totally frank about the funds, but did not have sufficient information to draw any inferences and therefore accepted the appellant’s explanation. 

18                  The Tribunal was prepared to accept that the appellant had been detained or checked following the explosion on 20 October 1995.  However, the Tribunal found that such checks and detentions were not serious enough to amount to persecution.  The Tribunal also found that the punching described by the appellant was not serious enough to constitute persecution.  The fact that the appellant was released after each episode indicated to the Tribunal that the appellant was of no continuing interest to the authorities. 

19                  The Tribunal found that there was nothing about the appellant’s prior detentions that would raise his profile above that of a Tamil male from Jaffna and that that alone was insufficient to establish that there was anything above a remote chance that he would face persecution if he returned to Sri Lanka in the foreseeable future.  While the Tribunal understood the appellant’s apprehension at returning to a city being subjected to suicide bombings, the Tribunal found that persons returning to Sri Lanka did not face a real chance of mistreatment or disappearance. 

20                  The Tribunal also found that, unless there was something that raised the profile of the appellant above that of Tamils from the north, he did not face a real chance of persecution.  Accordingly, the Tribunal found that the appellant does not have a well-founded fear of persecution by reason of his Tamil ethnicity or imputed political opinion, now or in the reasonably foreseeable future.  The Tribunal concluded, therefore, that the appellant was not a person to whom Australia has protection obligations under the Convention. 

Grounds of review

21                  In his amended application for an order of review of the Tribunal’s decision, the appellant relied on the following grounds:

“1.       The Tribunal erred in law, being error in the interpretation of the law, or in the application of the law to the facts as found.

Particulars

a.         Error in failing to consider the issue of whether multiple incidents of detention and relatively minor assault in the future could cumulatively amount to persecution.

b.         Error in failing to consider the question of whether the applicant has a well founded fear of persecution according to law.

2.         The Tribunal failed to observe procedures which were required by the Migration Act to be observed.

Particulars

a.         Failure to have regard to information that the Tribunal obtained and must have considered relevant, being information concerned with the profile of those subject to police detention and mistreatment in Colombo, as is required by s 424(1) Migration Act.

b.         Failure to observe a procedure required by s 430(1)(d) Migration Act to be observed.

3.         There was no evidence or other material to justify the making of the decision.

Particular

The Tribunal based its decision on a particular fact, being that the evidence before it supported the proposition that unless there is something that raises the profile of either or both of the applicant above that of Tamils from the north they do not face a real chance of persecution, and that fact did not exist.”

22                  In his amended notice of appeal, filed with leave on the hearing of the appeal, the appellant relied on the following grounds:

“2.       The Court erred in finding that the Refugee Review Tribunal (the Tribunal) had considered the cumulative effect of the harm found to have been suffered by the appellant (Ground 1 amended application for judicial review).

3.         The Court erred in failing to find that the Tribunal erred in failing to consider whether multiple incidents of detention in inhumane conditions and relatively minor assault in the future could cumulatively amount to persecution (Ground 1 amended application for judicial review).

4.         The Court erred in finding that the ground of judicial review specified in s 476(1)(g) and 476(4)(b) Migration Act was not made out (Ground 3, amended application for judicial review).

5.         Alternatively to paragraph 4 above, the Court erred in failing to find that the Tribunal had failed to refer to evidence or other material upon which it based its decision (Ground 2 particular (b) of the amended application for judicial review).

………………………”

REASONING ON APPEAL

23                  I will consider grounds 2. and 3. first. Whether the detention and indignities suffered by the appellant amounted to persecution, was a matter of fact upon which the Tribunal made findings adverse to the applicants.  The primary judge examined the Tribunal’s decision. His Honour came to the conclusion that the Tribunal’s reasons indicated that it considered the accumulation of all of the incidents claimed.  There is no reason to disturb that conclusion.  The Tribunal made it clear that it considered the evidence as a whole.  It is also apparent, from the reasons, that the Tribunal addressed the question of whether, assuming such incidents continued to occur in the foreseeable future, there would be persecution.  The Tribunal concluded to the contrary.  Neither of appeal grounds 2 or 3 is made out.

24                  Appeal ground 4 concerns certain material provided by the appellant and two other reports obtained by the Tribunal independently.  The first of the two reports was “1999 Country Reports on Human Rights Practices” released by the Bureau of Democracy, Human Rights and Labour, of the United States Department of State, 25 February 2000 (“the US Report”).  The other was Department of Foreign Affairs and Trade Country Information Report dated 5 April 2000 (“the DFAT Report”) (together “the reports”).  In relation to the material considered by the Tribunal, the Tribunal said:

“The Tribunal has considered the material provided by the Applicants and prefers the US Report and the above cable CX 49036 and finds that unless there is something that raises the profile of either or both of the Applicants above that of Tamils from the north they do not face a real chance of persecution.

Based on the above, the Tribunal finds that the applicant husband does not have a well-founded fear of persecution for reason of his Tamil ethnicity or imputed political opinion, pro-LTTE or for any other Convention reason, now or in the reasonably foreseeable future.”

25                  The essence of appeal ground 4 is that a fair reading of the passage quoted above indicates that the Tribunal concluded from the US Report and the DFAT Report that, unless there is something that raises the profile of a person above that of a Tamil from the north, that person would not face a real chance of persecution in Colombo.  The appellant contends that the Tribunal based its decision on a finding that such a conclusion was supported by, or stems from, those reports whereas, in fact, the reports prove the opposite.  Attention was drawn to passages in the reports indicating atrocities that continued to occur in Sri Lanka aimed at Tamils generally. 

26                  The Minister, on the other hand, contends that the conclusion stated by the Tribunal is an inference that it was open to the Tribunal to draw from the reports.  In other words, it was possible to draw an inference that there will be no persecution of a person simply because he is a Tamil from the north. The Minister points out that the reports do not say expressly that Tamils from the north suffer persecution without having any higher profile than merely that of a Tamil coming from the north. 

27                  The Minister relied specifically on several passages in the US Report, including the following:

“Security forces continued to conduct large-scale detentions and arrests of young Tamils, both male and female, on suspicion of being members or sympathizers of the LTTE.  Major sweeps and arrests occurred in Colombo, in the east and on the Jaffna peninsula.  Hundreds of Tamils at a time were picked up during police actions.  Most were released after identity checks lasting several hours to several days.”

The Tribunal found that such action did not amount to persecution.  It appears to have drawn the inference that, since most people within the category described were released after identity checks lasting for several hours to several days, something more was required than simply being young Tamils from the north of Sri Lanka.  Large scale detentions and arrests, followed by release after identity checks after hours or days, were found by the Tribunal not to constitute persecution.

28                  There is no overt statement in either of the Reports that a Tamil from the north does not face a real chance of persecution if his or her profile is not above that of other Tamils from the north.  The appellant contended that the Tribunal had found at least one of the Reports did overtly state that fact.  However, it is apparent that the Tribunal regarded the Reports, or at least one of them, as supporting its finding that a Tamil from the north does not face a real chance of persecution unless his or her profile is above that of other Tamils from the north. 

29                  The Reports contain material that refers to instances in which acts of persecution occur when something more than merely being a Tamil from the north is an identifiable contributing factor to the persecution.  The Minister contends that such material is capable of supporting an inference that something more than simply being a Tamil from the north is required before there would be a real chance of persecution. 

30                  The appellant relies on the operation of s 476(1)(g) and s 476(4)(b), which provide as follows:

“476    Application for Review

(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:

………………………

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

………………………

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

………………………

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

31                  Before the ground contained in s 476(1)(g), as explained by s 476(4), will be made out, the following steps must be undertaken:

·        One must first identify a relevant particular fact.

·        Then it is necessary to determine whether there was any evidence before the Tribunal to justify a finding of that fact.  If there was such evidence, the ground cannot be made out.

·        If there was no such evidence, it is next necessary to apply the second limb of s 476(4)(b).  If there is no evidence, on review, to show that the fact did not exist, the ground cannot be made out.

·        If there is evidence, on review, to show that the fact did not exist, it is then necessary to apply the first limb in s 476(4)(b).  That requires an analysis of the Tribunal’s reasoning to determine whether its decision was based on that fact – see Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181.

32                  The appellant contends that the relevant particular fact for the purposes of appeal ground 4 was that the Reports support the finding that, unless there is something that raises the profile of an applicant above that of a Tamil from the north, the applicant will not face a real chance of persecution.  He then contended that the Reports were not capable of being read in that way and, accordingly, there was no evidence to justify the finding of that fact.  Therefore, in effect, the appellant claims he passed the first hurdle. 

33                  However, it was open to the Tribunal to draw the conclusion, from the contents of the Reports, that a Tamil from the north, without more, does not face a real chance of persecution.  The following material contained in the Reports is capable of supporting such an inference:

·        Disappearances and killings have occurred when civilians have last been seen near the army’s forward defence lines in the north, contrary to military orders to avoid the area.

·        Disappearances and presumed killing of at least 350 civilians whom the security forces suspected were members or sympathisers of the LTTE have occurred in Jaffna in 1996 and 1997.

·        Most torture victims were Tamils suspected of being LTTE insurgents or collaborators, although there have been sporadic reports of the use of torture against suspected criminals.

·        The government generally respects the right to domestic and foreign travel; however, the war with the LTTE prompted the government to impose more stringent security checks on travellers from the north and the east and on movement in Colombo, particularly after dark.  Tamils must obtain police passes in order to move freely in the north and east and frequently are harassed at check points around the country.  Such security measures have the effect of restricting the movement of Tamils, especially young males.

·        There are 27 Tamil and 20 Muslim members of parliament.

·        In recent years there has been little clear evidence of overt discrimination against Tamils in university enrolment or government employment, although some groups continue to assert that it exists.

·        Arrests are made on suspicion of LTTE connection or the inability of northern and eastern Tamils to explain their presence in Colombo.

34                  Those matters are capable of giving rise to the inference that it is only Tamils from the north with a particular profile who are at risk.  Accordingly, the first hurdle for the application of s 476(1)(g), as explained by s 476(4)(b), stands in the way of the appellant’s contention.  That is to say, there was evidence before the Tribunal to justify the finding made by the Tribunal in that regard ground 4 must fail.

35                  The final ground of review was put as an alternative to ground 4.  For the reasons I have just given, my view is that the reference to the reports in paragraph [24] above is linked conjunctively to the finding that “Unless there is something that raises the profile of either or both the applicants above that of Tamils from the north they do not face a real chance of persecution”.  As a result, the alternative contemplated by ground 5 does not arise.

36                  It follows that none of the appeal grounds has been made out.  Accordingly, the appeal should be dismissed with costs.

Associate:

Dated:              9 July 2001

On appeal from a single judge of the Federal Court of Australia

REASONS FOR JUDGMENT

FINKELSTEIN J:

37                  Mr Jegatheeswaran is a Sri Lankan national who fled Sri Lanka in 1996 with his wife and two children.  He applied to the respondent Minister for the grant of a protection visa under the Migration Act 1958 (Cth), claiming that he had a well-founded fear of persecution at the hands of the government of Sri Lanka for reasons of political opinion.  The application was refused.  Mr Jegatheeswaran then unsuccessfully applied to the Refugee Review Tribunal to have the Minister’s decision set aside.  An application for review of the tribunal’s decision by a judge of the court also failed.  Mr Jegatheeswaran now appeals to the Full Court, contending that the tribunal had fallen into error in a number of respects, and that the trial judge should have set aside the tribunal’s decision.

38                  Before dealing with the nature of the alleged errors, it is convenient to describe the basis upon which Mr Jegatheeswaran sought to persuade the tribunal that he was a Convention refugee.  Mr Jegatheeswaran is a Tamil from Jaffna, a town in the north of Sri Lanka.  For many years Tamils have been waging a civil war against the government.  They seek to establish an independent Tamil state in the northern and eastern provinces of the country.  The civil war is bloody, and has resulted in tens of thousands of casualties.  Not surprisingly government reaction has been harsh, and there have been serious human rights abuses.  Young Tamils are arrested, tortured and sometimes murdered by the security forces.

39                  Mr Jegatheeswaran’s family moved from Jaffna to Colombo in 1983 after his father had obtained work in the capital.  Later that year Mr Jegatheeswaran travelled to India to study.  He obtained a commerce degree from the University of Madras in early 1988 and returned to Colombo where he was employed as a clerk by the Muslim Commercial Bank.  Mr Jegatheeswaran married in 1993 and lived a peaceful life until 1995 when the Tamil Tigers took the civil war to Colombo.  Since then Tamils who live in the capital have been subjected to harassment and torture, especially after terrorist attacks in the city. 

40                  Mr Jegatheeswaran claims that he was caught up in these events.  This is the account he gave to the tribunal.  In October 1995 the Liberation of Tamil Tigers Eelam (Tamil Tigers) destroyed an oil depot in Colombo.  The security forces rounded up many Tamils in their search for those responsible for the bombing.  Five members of the security forces came to Mr Jegatheeswaran’s home, took him into custody and detained him for a number of days at a police station.  Mr Jegatheeswaran was verbally abused and held in a cell in conditions that he described as “inhumane”. 

41                  In January 1996 the Tamil Tigers planted a bomb at the Central Bank in Colombo.  Hundreds of people were killed.  On this occasion Mr Jegatheeswaran was not subjected to any harassment.  The Tamil Tigers were responsible for another explosion in the capital, this time at the Dehiwella Railway Station, in July 1996.  Yet again many people were killed.  On the day of the bombing, Mr Jegatheeswaran was stopped at a checkpoint and searched by members of the security forces.  One of the men punched Mr Jegatheeswaran in the face and caused an injury that required medical treatment.  Mr Jegatheeswaran was detained for approximately fifteen minutes and then released.

42                  Two months later two unknown men, apparently Tamil Tigers, came to the Commercial Bank and asked Mr Jegatheeswaran to provide them with information about the accounts of some of the bank’s Tamil customers.  Mr Jegatheeswaran refused to provide the information.

43                  The most serious incident occurred in September 1996.  Mr Jegatheeswaran often received large sums of money from his in-laws, who live overseas.  He was given this money to support his wife’s parents, who live in Colombo.  Apparently a bank employee told the security forces that Mr Jegatheeswaran collected money on behalf of the Tamil Tigers.  The security forces raided his home and ransacked it while searching for incriminating evidence.  Mr Jegatheeswaran was taken into custody and held at the Panagoda Military Camp.  He was severely beaten with a plastic pipe filled with sand.  After four days of “interrogation and torture” he was released.

44                  Mr Jegatheeswaran could no longer tolerate this treatment, so he and his wife decided to leave Sri Lanka and come to Australia.  For that purpose they obtained visitors visas and, when they arrived in Australia, each applied for a protection visa. 

45                  In addition to the evidence of Mr Jegatheeswaran, the tribunal had obtained material about conditions in Sri Lanka.  This included the 1999 Sri Lanka Country Report on Human Rights Practices published by the United States Department of State and a cable from the Department of Foreign Affairs and Trade dated 11 October 1999. 

46                  The tribunal accepted Mr Jegatheeswaran’s account of the events in many respects, but rejected some of his more significant allegations of mistreatment.  Thus, the tribunal rejected Mr Jegatheeswaran’s claim that he had been taken into custody and tortured in September 1996.  It did not accept that he had been approached by Tamil Tigers and asked to provide information about the Commercial Bank’s customers. On the other hand, the tribunal found that Mr Jegatheeswaran had been detained in October 1995 following the bombing at the oil depot, and that he had been detained and assaulted at a security checkpoint after the bombing at the Dehiwella Railway Station.  As to the detentions, the tribunal said that they were “for short periods … [and are] not serious enough to constitute persecution.”  In relation to the assault, the tribunal said that “the punching … was not serious enough to constitute persecution.”  It also found that because Mr Jegatheeswaran had not been detained for any significant period “he was of no continuing interest to the authorities.”  In those circumstances, the tribunal said that Mr Jegatheeswaran did not have a well-founded fear of persecution if he returned to Sri Lanka.

47                  Mr Jegatheeswaran has identified three alleged errors in the manner in which the tribunal disposed of his application.  He says that each error is a reviewable error of law.  The first alleged error is that the tribunal failed to consider the cumulative effect of the harm found to have been suffered by him.  Here Mr Jegatheeswaran relies upon the ground of review found in s 476(1)(e) of the Migration Act (that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law).  The second alleged error is related to the first.  It is alleged the tribunal erred in failing to consider whether multiple incidents of detention in inhumane conditions and the relatively minor assault could cumulatively amount to persecution.  Again Mr Jegatheeswaran relies upon the ground of review in s 476(1)(e).  Because these grounds overlap, it is convenient that they be considered together.

48                  The trial judge pointed out that the authorities establish that the cumulative effects of events causing harm should be considered in determining whether a person might be subjected to persecution:  Tharmalingam v Minister for Immigration and Multicultural Affairs (Lindgren J, 19 May 1998, unreported); Kaur v Minister for Immigration and Multicultural Affairs [2000] FCA 1401.  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Kirby J said (at 294-295) that the tribunal must “consider all the relevant possibilities by looking back at the entirety of the material placed before [it]”, and the decision-maker must “[stand] back from the particular grounds and [consider] the case in its entirety.”

49                  The trial judge examined the tribunal’s reasons, particularly the passages cited earlier, being the passages which form the basis of Mr Jegatheeswaran’s complaint.  He came to the conclusion that the tribunal had considered cumulatively all the occasions of detention and the incidents of mistreatment, for the purpose of determining whether there was a likelihood that Mr Jegatheeswaran would be persecuted if he returned to Sri Lanka.  I agree with that conclusion. The tribunal’s reasons clearly show that it took all those matters into account.  First, when the tribunal found that Mr Jegatheeswaran had been detained on two occasions it said that those “detentions are not serious enough to amount to persecution”.  It noted that Mr Jegatheeswaran had been released after each detention “which [it] finds, showed he was of no continuing interest to the authorities”.  In other words, the tribunal considered the cumulative effect of the two episodes of detention, and did not look at each episode in isolation.  The assault which occurred in July 1996 was given separate consideration; the tribunal finding that it “was not serious enough to constitute persecution”.  But the separate treatment of the assault does not indicate that the tribunal failed to look at Mr Jegatheeswaran’s case in its entirety.  Indeed, the tribunal stated that it reached its conclusion that Mr Jegatheeswaran was not a Convention refugee after “[h]aving considered the evidence as a whole” and there is no reason to doubt this statement.

50                  The third complaint is that there was “no evidence” to justify “the [tribunal’s] decision”, because “the decision [was] based on” a “particular fact [that] did not exist”:  see s 476(1)(g) and s 476(4)(b).  It is alleged that the tribunal found as a “fact” that the “US state department report and the DFAT cable said that Tamils from the north of Sri Lanka did not have a well-founded fear of persecution unless they had a [political] profile above that of Tamils as a general class” an that “fact” did not exist. 

51                  In the course of submissions the question arose whether the tribunal had made the particular finding attributed to it.  The relevant passage in its reasons reads:

“On the basis of [the] DFAT cable … the Tribunal finds that returnees do not face a real chance of mistreatment or disappearance.  The Tribunal has considered the material provided by the Applicants and prefers the US report and the above cable … and finds that unless there is something that raises the profile of either or both of the Applicants above that of Tamils from the north they do not face a real chance of persecution.”

After some discussion, counsel for Mr Jegatheeswaran accepted that the finding of “fact” that he sought to challenge on the “no evidence” ground was that “Tamils from the north of Sri Lanka do not face a real risk of persecution unless there is something that will raise their [political] profile above that of other Tamils”.  That is, the particular fact in respect of which it is said there is “no evidence” was not a primary fact, being what the relevant documents state, but a secondary fact, namely the inference drawn from the statements in the documents. 

52                  To understand what is encompassed by the “no evidence” ground of review it is convenient to consider what is meant by a finding of “fact”.  In common law jurisdictions important issues depend upon the distinction between law and fact.  The law relating to appeals and judicial review often raises a distinction between a finding or conclusion of law and a finding of fact.  It is in that context that we must decide what is meant by a “fact”.  In dealing with this issue, I will not attempt a complete definition; often it is easier to use a term correctly than to give a correct definition of it.  In simple terms a fact is a quality or an event which has happened or existed, including not only a physical fact but also state of mind:  F H Bohlen, “Mixed Questions of Law and Fact” 72 Univ of Pennsylvania Law Review (1924) 111, 112, quoted in Paton & Derham, Jurisprudence 1972 at p.204.  Stated more broadly, a “fact” is an act, an action of a person, a state of affairs, a condition (including a state of mind) or an event.  It is not limited to things tangible.  Usually a “fact” is something which exists.  But it need not be, for a “fact” may be positive or negative.  That is, the non-existence of an act, action, condition, state of affairs or event can be a “fact”, but a negative one:  J Bentham, Rationale of Judicial Evidence (1827) Bk 1 at p.49-50.  Further, a fact is not confined to the existence or non-existence of an act etc.  A “fact” may be an act etc which will exist in the future:  L Jaffe, Judicial Control of Administrative Action 1965 at p.548; de Smith, Judicial Review of Administrative Action 5^th ed. 1995 at p.277.

53                  In curial or administrative proceedings, it is often necessary to understand the difference between various categories of “fact”.  I have already made passing reference to the distinction between “primary facts” and “secondary facts”.  In British Launderers’ Research Association v Borough of Hendon Rating Authority [1949] 1 KB 462 at 471, Denning LJ said that “[p]rimary facts are facts which are observed by witnesses and proved by oral testimony or facts proved by the production of a thing itself, such as original documents”, and that secondary facts are “inferences deduced by a process of reasoning” from primary facts.  This distinction has also been expressed as the difference between the “perception” of facts and the “evaluation” of facts:  A L Goodhart, “Appeals on Questions of Fact” (1955) 71 LQR 402, 405.  I will return to this distinction in a moment.

54                  Another distinction often drawn is between “ultimate facts” and “evidential facts”.  Many synonyms for “ultimate fact” are in use, such as “operative fact”, “dispositive fact”, “material fact” and “constitutive fact”.  Ultimate facts are those to which legal consequences will attach.  “Operative [ultimate] …facts are those which, under the general legal rules that are applicable, suffice to change legal relations, that is, either to create a new relation, or to extinguish an old one, or to perform both of these functions simultaneously.”  W Hohfeld, Fundamental Legal Conceptions 1923 at p.32.  An evidential fact, on the other hand, is one to which no legal consequences immediately attach, but which is used to establish another fact to which legal consequences do attach.  Usually an evidential fact is a primary fact which affords some logical basis for inferring some other fact.  That other fact may be an ultimate fact or an intermediate evidential fact:  W Hohfeld, Fundamental Legal Conceptions at p.34.  This distinction raises the question whether ultimate facts can be proved directly, and if they can, whether they are evidential facts.  The answer is in the negative for the reason that legal effect will attach to the conclusion that a particular fact has happened, not to the conclusion that a witness observed that fact:  C Morris “Law and Fact” 55 Harv Law Rev 1303, 1328 (1942); see also W Hohfeld, Fundamental Legal Conceptions at p.34.

55                  By reference to this terminology, the fact upon which a decision is based will usually be an “ultimate fact”, for it is only upon the establishment of an ultimate fact that the law directly annexes consequences.  However, it is not only when there is “no evidence” for an ultimate fact that a decision can be set aside.  In Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 the Full Court held that a decision is based on the existence of each particular fact that is “critical” to the making of the decision.  Black CJ, with whom Spender and Gummow JJ agreed, said (at 220-221):

“A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision.  A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance.  A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.

If a decision is in truth based … on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact.”

56                  According to this view, a “critical fact” need not be an “ultimate fact”, but in some cases may be an “evidential fact”, depending upon the significance of that fact.  For example, if the existence of an ultimate fact is based on the finding of an evidential fact, then the evidential fact may be a critical fact, and if there is no evidence for that finding, the resultant decision may be an error of law.  There may be other ways in which an unsubstantiated finding could be critical to the ultimate determination of the tribunal:  cf S v Crimes Compensation Tribunal [1998] 1 VR 83, 90. 

57                  A trier of fact is required to determine whether an asserted fact is “true”.  In the case of a “primary fact”, the question is whether the asserted fact has been shown to be true to the required degree of probability, or in some cases to the required degree of satisfaction.  Once the requisite degree of probability or satisfaction has been reached, the asserted fact is assumed to be true.  However, before there can be a finding that the asserted fact is “true” there must be some evidence to support it.  If there is no evidence, then the finding may be in error of law.  In the case of a secondary fact, there must be primary facts from which the secondary fact can be inferred.  If the tribunal draws an inference which cannot reasonably be drawn, that is, if it draws an inference for which there is no evidence, there is an error in point of law:  Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32, 37-38.

58                  The task of determining whether an asserted fact is true may require the trier of fact to consider the credibility of a witness and decide whether the witness is telling the truth.  On the other hand, a witness may be telling the truth, but the trier of fact must decide whether the witness is mistaken or unbelievable in some respects.  Sometimes the trier of fact must analyse the language used by the witness to discover the intended meaning.  In the case of a secondary fact, the tribunal must determine whether a particular proposition can be inferred from proven facts.  With regard to both primary and secondary facts, the trier of fact will bring to bear his general experience, and his ability to consider logically the “evidence” that has been tendered.  The process of reasoning involved is personal.  Sometimes it will be based on perceived or accepted views about human behaviour.  Sometimes those views may be supported by general knowledge.  Sometimes they may be the result of speculation or prejudice.  In every case, the trier of fact does not act on evidence in relation to these matters:  see generally J Thayer, A Preliminary Treatise on Evidence at the Common Law (1898) at p.270 ff.  (I put to one side cases where the trier of fact may be assisted by the testimony of an expert).  For some lively discussions on the judicial thought process, see M Damaska, “Rational and Irrational Proof Revisited” 5 Cardozo Journal of International and Comparative Law 25 (1997); W Twinning, “Civilians Don’t Try:  A Comment on Mirjan Damaska’s ‘Rational and Irrational Proof Revisited’”, 5 Cardozo Journal of International and Comparative Law 69 (1997); T J Anderson, “On Generalisations I:  A Preliminary Exploration”, 40 South Texas Law Review 455 (1999).  The trier of fact may be able to identify the source from which he gained his knowledge.  Frequently, however, intuition (usually referred to as “logic”) predominates and the trier of fact could not readily explain the source of his views or explain why he believes that those views are sound.  The following are a few examples of the process of analysis that is involved in deciding facts.  In a criminal case, an adverse inference may be drawn when an accused attempts to leave the jurisdiction after becoming a suspect.  In some circumstances, certain conclusions that may be drawn from silence.  Sometimes when a person does not deny an asserted fact, she will be taken to assent to it.  In other circumstances, if a person does not assert the existence of a fact, that failure may be taken as evidence that the asserted fact is not true.

59                  It goes without saying that the trier of fact’s views about human behaviour will not always be sound.  Those views may be grounded in prejudice or bias.  The resultant findings of fact may be wrong.  But the result cannot be challenged on the “no evidence” ground.  That is to say, there can be no error of law of the “no evidence” type when one is concerned with a process of reasoning in respect of which no evidence is tendered:  Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 352, and the cases that have followed it, are the only examples of cases that have applied the “no evidence” ground of review to a process of reasoning.  I regret to say they are wrongly decided, in my opinion.

60                  Returning now to the instant case, I will assume, without deciding, that the impugned finding of fact is a “critical” fact as that term is explained in Curragh.  Speaking strictly, it might properly be described as an intermediate evidential fact, being based on evidential facts (the contents of the two documents), on which, together with other evidential facts, the tribunal’s findings of ultimate fact are based.  The question is whether the finding is one which could properly or reasonably be inferred from the “primary facts”, that is, the contents of the two documents.  It is convenient, in this connection, to set out a number of passages from the US Country Report:

“The government generally respected the human rights of its citizens in areas not affected by the insurgency; however the ongoing war with the LTTE continue to be accompanied by serious human rights abuses by the security forces.

…

In positive developments the government took steps to control abuses.

…

Large scale arrests of Tamils continued during the year [1999]; these arrests were particularly prevalent after LTTE bombings.

…

The majority of those arrested were released after periods lasting several days to several months; however, the total number of prisoners held … was consistently close to 2,000.

…

Security forces continue to conduct large scale detentions and arrests of young Tamils, both male and female, on suspicion of being members or sympathisers of LTTE.  Major sweeps and arrests occurred in Colombo, in the east and on the Jaffna peninsula.  Hundreds of Tamils at a time were picked up during police action.  Most were released after identity checks lasting several hours to several days.  … Tamils complained that they were verbally abused and held for extended periods of time at the security check points that have been set up throughout Colombo.”

61                  From these “primary facts” it was open to the tribunal to draw the inference that most Tamils that are arrested during “security sweeps” are released after identity checks, and that unless there is a particular reason to continue to hold a detained Tamil, the detainee will not be persecuted merely because he is a Tamil from the north.  It was also open to the tribunal to infer from these primary facts that a Tamil from the north did not face a risk of persecution unless there was something else about that Tamil that would attract the attention of the authorities.  At worst, the inference was one about which minds may differ because it involved a matter of judgment or degree, and even in that case the finding could not be vitiated for error of law.

62                  I would dismiss the appeal with costs.

Associate:

Dated:              9 July 2001