FEDERAL COURT OF AUSTRALIA

Subramaniam v Minister for Immigration & Multicultural Affairs [2001] FCA 891

RAHIETHAN MARKANDAN SUBRAMANIAM  -v-  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V89 of 2001

RYAN J

10 JULY 2001

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the application, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     This is an application for review of the decision of the Refugee Review Tribunal (“the Tribunal) dated 12 January 2001 affirming a decision by a delegate of the respondent Minister to grant the applicant a protection visa. 

2                     The applicant, who is a Sri Lankan citizen, is now aged 25 and arrived in Australia on 25 July 1997 as the holder of a student visa.  He applied for a protection visa on 29 October 1997 and after it was refused on 27 May 1998 he made an application for review to the Tribunal on 1 June 1998.  The applicant was born in Velvettiturai where he lived until 1990 before he and his mother went to India seeking refuge.  Their flight was prompted by what the Tribunal accepted to have been “an outrageous revenge attack by the IPKF” on his family.  The applicant's account of those events, as summarised by the Tribunal, was in these terms;

“He claims that one of his brothers was arrested and tortured in 1984 and was massacred, along with his father, in 1989 when the Indian Peacekeeping Force (IPKF) that was supposedly keeping the peace in the Jaffna Peninsula, slaughtered Tamils in response to an LTTE attack on a convoy of Indian soldiers in the Velvettiturai town square.  Soldiers came to the family home on 2 August 1989 and killed his father and eight other people.  He provided a death certificate for his father which is dated 10 August 1989 and states the cause of death and place of burial or cremation as "Shot dead by gun at home and cremated at the same place.  Velvettiturai.” 

The Applicant and his mother hid under the kitchen table and then effected an escape to a stranger's house where they stayed for a week before returning home to find the decomposing bodies of the nine deceased people.  They arranged to burn the bodies with the house.  His deceased brother's shop was also burned down the same day and the Applicant states he understood his brother was shot and then burnt alive in the fire.  He provided a death certificate for his brother which is dated 10 August and states the cause of death and place of burial or cremation as ‘Shot dead by gun at the shop and cremated at the same place Velvettiturai.’  He provided an extract from a report made by his mother to the Velvettiturai police on 17 August 1989, in which he states that her husband and son were killed in separate incidents and adds that several properties she owned were also burned down.”

3                     After two years the applicant and his mother returned to Colombo because they could not return to Jaffna.  The applicant completed his secondary and post-secondary education in Colombo.  The applicant claimed that his family had been targeted because his deceased brother had supported the Liberation Tigers of Tamil Eelam, (“the LTTE”), and displaced people.  The Tribunal noted that another brother, Rathan, had been studying in Colombo and as a result had avoided the massacre.  That brother came to Australia as a scholarship student in 1991 and, after completing his medical studies, migrated to New Zealand.  The applicant told the Tribunal that, after the massacre in 1989, he and his mother returned to their burnt house after the IPKF had lifted its curfew and remained in that area for about a year before leaving for India. 

4                     The Tribunal noted that the applicant and his mother lived in India for the next two years with some financial support from Rathan, who was then in Australia.  During that time the applicant became a supporter of the LTTE, although he claimed to believe in non-violence.  Because they could not return to Jaffna, the applicant and his mother, on re-entering Sri Lanka, lived in a rented room in Bambalapittaya, a predominantly Tamil suburb of Colombo.  The applicant gained admission to the Hindu College, Colombo, which the Tribunal described as a “prestigious school”.  He was a very successful student and after completing his examinations in September 1996 was offered a place for study in Australia.  His application for that place was prompted, he said, by the fact that he had been in fear of his life since October 1995.  He explained the delay in applying by the need to complete his examinations.  At all events, his application was accepted in May 1997 and his brother Rathan paid his advance fees for tuition in Australia and later his air fares.

5                     The Tribunal's recital of the applicant's account of events which, he said, led him to fear for his life in October 1995 was in these terms;

“The Applicant did not encounter any difficulties with the authorities until October 1995, when he claims he was returning from school when he was stopped by police and asked where he was from.  He told them he was from Velvettiturai but living in Colombo, but they accused him of being an LTTE member, and detained and beat him for two days until his mother was able to arrange his release.  He told the Tribunal that he provided his National Identity Card, (NIC), from which the officers learned he was born in Velvettiturai.

When the Tribunal pointed out that the NIC would also state his permanent address in Messenger Street, rather than Bambalapittaya, he said the police also asked for his student card, which stated his true address.  He explained he had never lived in Messenger Street but his mother had used contacts in the department that issued the NIC to record that address as it is not in a Tamil district and would be less likely to raise suspicion when he presented it.  On the other hand, he had his true address in his student card as his mother gave the school that address for the purpose of correspondence.

He told the Tribunal that his room was searched about every three months after that incident, although searches were routine for the Tamil population in that area.  In July of the following year, about 10 policemen came to the room he shared with his mother and told them that because they came from Velvettiturai they were under suspicion for being in Colombo.  They searched the house, took the Applicant into custody for a day, accused him of being a LTTE supporter because he came from Velvettiturai and had lived in India, and beat him.  He was released after payment of a bribe by his mother but was subsequently the subject of frequent visits of security officials, who threatened to kill him.  He told the Tribunal that he and his mother did not move because nobody they knew wanted to assist them because they knew his father and two brothers had been associated with the LTTE.  He said Rathan was able to visit after that incident because his mother smoothed his passage through security procedures.”

6                     While his application to study in Australia was pending, the applicant claimed to have been subjected to further harassment.  That claim was summarised as follows by the Tribunal;

“In the meantime, in March 1997 he claims that five officers from the CID, [Central Intelligence Department of the Sri Lankan armed forces] entered the room he shared with his mother and beat both of them, accusing them of helping the LTTE in Velvettiturai and Colombo and asking about Rathan's support of the LTTE.  They said they had arrested a friend of Rathan in Velvettiturai who had informed on Rathan.  They left with a threat to return to take and kill the Applicant.

The following month, on 4 April, CID men came back, blindfolded the Applicant and took him away.  They hit his protesting mother and told her she would not see the Applicant again.  They kept the Applicant for a week and tortured him when he denied any knowledge of certain people in Velvettiturai and Rathan's LTTE connections.  They took him to a river and threatened to dump him in it, but a few days later they dumped him near his room.  He said that he remained at that address, waiting for his student application to be processed.”

7                     The Tribunal noted that the applicant claimed that his mother's health had deteriorated seriously as a result of her anxiety over his situation.  A letter to Rathan from the mother herself was adduced in evidence by the applicant.  As well, the applicant provided a letter from the family physician, Dr Ganasan, tending to support the applicant's claim to have been beaten in October 1995, July 1996 and March 1997.

8                     The Tribunal also noted that the applicant's mother had fled in 1997 from Colombo to Trincomalee where she stayed with her sister-in-law, the “wealthy aunt” who had undertaken to the Australian High Commission to meet the applicant's living expenses in Australia.  In addition to the testimonial from Dr Ganasan, the applicant relied on a letter dated 15 October 1997 from Dr Guniaca Bahoo of Trincomalee, detailing his mother's medical condition as a diabetic and recounting the experiences which she had undergone since the killing of her husband.  The Tribunal noted that the applicant's mother had since come to Australia and is currently living with him. 

9                     The applicant further claimed that his former landlord, presumably in Bambalapittaya, had been forced to flee to Canada after security officials had repeatedly visited his house in search of the applicant.  The applicant claimed that the landlord was angry because the applicant had not told him of the family links with the LTTE.  The applicant also adduced in evidence before the Tribunal reports from two psychologists which the Tribunal canvassed in some detail at p 7 of its reasons for decision.  There was, as well, a report from a consulting physician whom the applicant had consulted in Australia during 1998.  Those reports expressed support for the applicant's application for a protection visa.

10                  Under the heading ‘Discussion and Findings”, the Tribunal, in its reasons, concluded that the applicant was not a wholly truthful witness, but it accepted the claims of the detention of the applicant's brother in 1984 and the killing of the same brother and the applicant's father in 1989.  However, the Tribunal went on to observe, at p 11 of the reasons;

“The eye-witness accounts suggest that many of the victims were innocent, although that does not exclude the possibility that the IPKF believed they were all associated with the LTTE.  The Applicant was 13 years old at that time and was able to escape.  He returned to his house with his mother after a week or so, when the IPKF was still in control, and was not harassed during the following year, although it is common knowledge that the LTTE utilises the service of young teenagers. 

The Applicant's brother in Colombo was not harassed and was able to leave the country in 1991 to pursue his studies in Australia.  The Applicant's mother also reported damage to her properties to the police without encountering harm, although it is apparent that the police were also opposed to the LTTE. 

The Applicant and his mother were subsequently able to travel to Colombo, make arrangements about his father's pension and then be sent to India to find refuge.  The assistance given by Sri Lankan authorities in those efforts does not sit comfortably with a claim that the Applicant's family was associated with the LTTE or suspected of such an association.  The circumstances suggest that the Applicant's father and brother were not affiliated with the LTTE but, even if they were, the IPKF, the Sri Lankan security forces and other relevant authorities did not attack other family members for such an affiliation.”

11                  The Tribunal went on to note a number of aspects of the applicant's residence in Colombo from 1992 to 1997 as tending to negative any official perception that he was affiliated to the LTTE.  It then observed, at p 13 of its reasons;

“The Applicant's claims disclose that he first encountered trouble with the authorities in Colombo in October 1995, while he was returning from school.  The Tribunal finds it implausible that he would immediately tell the police who questioned him that he was from Velvettiturai but lived in Bambalapitaya (see his declaration 29 October 1997), particularly in the context of his explanation for having a permanent address in Messenger Street, namely, that address was not in a predominantly Tamil area and would diminish suspicions of association with the LTTE. 

At the hearing he said the police learned he was from Velvettiturai because he gave them his NIC but, when the Tribunal pointed out that his NIC would also indicate that he lived in Messenger Street, he added that he also gave them his student identity card that stated he lived in Bambalapitaya.  His alleged arrest and the accusation that he was associated with the LTTE because of his birthplace is at odds with his history of no encounters with the authorities since he had returned to Colombo in 1992.  During that period, there had been major terrorist attacks in Colombo …”

12                  After finding it likely that the applicant must have been subjected to many security checks between 1992 and 1995, the Tribunal continued; 

“…yet he has given no evidence that he was harassed between 1992 and October 1995 because of his race and birthplace.  He told the Tribunal that he was released after 24 hours, although he had previously submitted he was held for two days.  He has made no mention of the bomb blasts at the two oil depots on 20 October 1995, although it is likely he would have been questioned about those incidents if he was suspected of membership of the LTTE if he was arrested after the blast, or be recalled for questioning if his detention occurred before the blasts.

In the circumstances, the Tribunal does not accept that the Applicant was detained and tortured in October 1995 because he was alleged to be associated with the LTTE as a consequence of his birthplace.  Even if the Tribunal is wrong in that respect, he was released and, according to his own evidence, was the subject of routine area checks in the following nine months.  There is no claim that he was further investigated or his belongings searched or colleagues questioned.  That is a strong indication that he was of no interest to the authorities.  If, as he claims, he was detained in 1995, the Tribunal concludes that he was released because the authorities dispelled any suspicions they may have had about him and had no ongoing adverse interest in him.”

13                  The Tribunal next rejected as implausible the applicant's claim that ten members of the security forces had come to his house in July 1996 because he and his mother had come from Velvettiturai.  The reasoning underlying that conclusion was explained in these terms; 

“If his claims are to be believed, he had been investigated for that reason the previous year and had been released.  He had also disclosed his birthplace to police when he registered his permanent address in Messenger Street and his temporary address in Bambalapitaya, as well as when he obtained his NIC in 1993.  He explained that he was released after a day but subsequently subjected to frequent visits by security officials who threatened to kill him.  He did not move addresses, he claimed, because nobody else would have him and his mother because they knew of his family association with the LTTE.  The Tribunal does not accept the explanation.  The Applicant's father was a respected civil servant, his mother had been assisted by Sri Lankan authorities in arranging her husband's estate in finding refuge in India, the Applicant was a successful student in a prestigious college in Colombo, another son had won a scholarship to study in Australia and had made a return visit in 1994 and two more visits in 1996 without the Applicant providing any evidence that he was harassed on those return visits. 

As mentioned below, half of the Colombo population is Tamil.  It is not credible that the Applicant and his mother could not move addresses to avoid harassment by security officials.”

14                  The Tribunal also regarded as inconsistent with a fear of persecution the applicant's remaining at the same address in Colombo to complete his education and await the outcome of his application for a student place in Australia.  It additionally remarked that the applicant's brother, Rathan, had made two visits to Bambalapittaya despite the applicant's claim that he, Rathan, was suspected of LTTE connections.  In the same context the Tribunal continued, at page 15 of the reasons;

“His claim that his mother smoothed the Applicant's brother's passage through security arrangements does not sit comfortably with her inability to assist the Applicant himself.  The Tribunal does not accept that the Applicant's brother needed assistance to pass through security procedures on his return visits to Sri Lanka and it is satisfied that the Applicant and his mother remained living at the same address because they did not experience difficulties there.  It does not believe that 10 security officials came to detain him because of his birthplace and it is satisfied that he has fabricated that aspect of his claims.

The Applicant also claims that five officers returned to his house in March 1997 to harass him about helping the LTTE and, more particularly, inform him that they had learned his brother was connected with the LTTE.  Given that his brother had twice visited him in the second half of 1996, it is decidedly odd that those men would then leave the Applicant's house without arresting him, although they threatened to return and kill him.  The Tribunal also shares the delegate's doubts that the CID would disclose to the Applicant that his brother was involved in the LTTE (see para 3.1.12 of her decision).  The Applicant stated that he still did not leave because he was waiting for his visa application to be processed.  In the circumstances he described, it is simply not credible that he would have remained at the same address merely because he was expecting some correspondence from the Australian High Commission.  There is no reason he could not have advised the Australian authorities of a change of address and the failure to change addresses leads the Tribunal to conclude that the Applicant was neither visited nor threatened by CID members who disclosed a link with the LTTE and a promise to return and kill him.  His explanation that he did not have the funds to move is at odds with his capacity to pay for a student visa, student fees in advance, air fares to Australia and living expenses on arrival, as well as obtaining support from his aunt in Trincomalee.  He states that his aunt, who supported his student visa application, would not support him.  That does not sit comfortably with her underwriting of his expenses as a student in Australia and her willingness to host the Applicant's mother when she moved to Trincomalee after the Applicant left Sri Lanka.  The Tribunal is satisfied that the Applicant had the means to leave his Bambalapitaya address if that had become necessary and, even further, had the means (passport and access to funds) to flee Sri Lanka to somewhere like India, which does not impose such strict visa requirements as the Australian Migration Act.  His choice was to remain where he had always lived, despite the threat he claims he was under.  In all of the circumstances, the Tribunal is satisfied that he contrived the claim that he suffered a further visit by the CID in March 1997.”

15                  The Tribunal also rejected as “contrived” the applicant's claim that the men from the CID returned in April 1997 and arrested and detained him.  It explained that rejection by observing that;

“… it is satisfied that aspect of his evidence is another fabrication in an effort to build a case that he requires Australian's protection obligations.  Apart from a general lack of credibility, the Applicant was able to use his own passport to go through security procedures at the airport.  His departure with his own passport and without hindrance by any of the Sri Lankan authorities is consistent with the Tribunal's conclusion that the authorities had no adverse interest in him.  In that respect, the Tribunal has taken account of information that the issue of passports and exit procedures are subject to security vetting (see CX25389 Country Information Report number 446/97, 5 September 1997;  CX2764 Cable CL 34239 dated 10 June 1992).”

16                  The letters relied on by the applicant from his mother and the Indian medical practitioners were variously discounted as “self-serving” or written at the behest of the applicant or of family members.  A similar approach was taken to the reports from the consultant physician and the psychologists who assessed the applicant in Australia.  The Tribunal also rejected the claim that the applicant's former landlord had been forced to flee to Canada by harassment attributable to the applicant's LTTE connections.  In respect of that matter, the Tribunal said;

“If the Applicant's evidence was to be believed, the landlord has suffered ongoing frequent searches of his house over a significant period for that very reason.  If he was inclined to flee because of the Applicant's political opinions, he would have done so long ago.  The fact that he remained in Colombo and continued to let his house to the Applicant and his mother is more evidence that the Applicant was not harassed because he was suspected of LTTE connections.  If that had been the case, it is reasonable to assume that his landlord would have been questioned or at least informed, and would have evicted the Applicant for the trouble he brought to the house and the constant searches.  It is plausible that the landlord had gone to Canada, but the Tribunal is not satisfied that his move has any connection with the Applicant's claim he was suspected of LTTE links.”

17                  The Tribunal's general conclusion as to the applicant's claim to have been harassed while residing in Colombo was expressed in these terms;

“In all of the circumstances, the Tribunal is satisfied that the Applicant has contrived his story of being harassed by the authorities when he was in Colombo, although it accepts that his family were the victims of the IPKF rampage in 1989 as he described.  It does not accept he is suspected of assisting or belonging to the LTTE or that he can provide any information about it, notwithstanding he was born in the same village as its leader.  He left that place some ten years ago.

The Tribunal concludes that the Applicant does not face a real chance of persecution because he or family members are suspected of having some links with the LTTE or information about that group.  It makes that finding in the context of the general situation for Tamils, discussed hereunder.”

18                  The ensuing discussion is a review of country information, including reports from the Australian Department of Foreign Affairs and Trade and the Sri Lanka Assessment of the United Kingdom's Home Office's Country Information and Policy Unit, Immigration and Nationality Directorate.  The Tribunal distilled from its review of that material this conclusion;

“After considering the available information, the Tribunal is satisfied that Tamils are not harassed for reason of their race per se, although young, newly-arrived Tamils from the North and North-east, particularly males from LTTE-controlled areas, may be at risk of harassment because they are suspected of affiliation with the LTTE, cannot communicate in Sinhalese or explain the reasons for their presence in Colombo, have no history of connections with that city and have nobody to vouch for them.”

19                  Finally, the Tribunal related that general conclusion to the particular circumstances which it had earlier found pertained to the applicant.  As already noted, it acknowledged that the applicant's family had been “the victims of an outrageous revenge attack by the IPKF in 1989” but went on to observe, that the IPKF “has long departed Sri Lanka and the applicant did not encounter persecution by its members or allied militia after the attack that resulted in the death of his father and brother”.

20                  After concluding that the applicant had not been persecuted for reason of being Tamil in Colombo, the Tribunal noted that he had lived and maintained a permanent and temporary residence and had studied in that city for several years before leaving for Australia.  It further observed that he had been registered with the local security authorities who would have known of his origins in Jaffna but did not harass him.  The Tribunal then concluded;

“If he returned to Colombo he would not be a new arrival from the North or North-east.  He has a history of residence in Colombo and network of relatives and friends, ranging from the distant relative who acceded to his registration in Messenger Street to the school authorities who provided free education and wrote references on his graduation.  That is, he has people available to vouch for him if necessary.  The Applicant's NIC states he was born in Jaffna but it states that he is a permanent resident in Colombo and, in light of the ongoing security measures in place in Colombo, it is apparent that he has presented it on numerous occasions without it raising difficulties for him.  It is also apparent that he demonstrated sufficient linguistic skills on the occasions he has been questioned at security checks to allay suspicions.

There is no doubt that the government security forces maintain strict security processes in Colombo and that they are intensified when there are terrorist attacks, or such attacks are anticipated.  The available information also indicates that there has been an increase in abuses in recent times, as the LTTE sought to re-assert its control in Jaffna.  It is apparent that a small proportion of the Tamil population of Colombo encounters undue harm.  The security measures affect all citizens, particularly Tamils, but they are directed at LTTE ‘suspects’ and largely occur in predominantly Tamil areas with lodging houses where such ‘suspects’ tend to congregate.  The Applicant is young, but he is not a newly-arrived person from the war-zone.  He has demonstrated that he is able to explain his reasons for being in Colombo, and he has a history of residence and a support network to vouch for him in that city.

Taking into consideration all of the available evidence, the Tribunal is not satisfied that there is a real chance he will be detained and persecuted in the reasonably foreseeable future.  Even if he is stopped for security checks, there is not a real chance he would be detained for an extended period and encounter serious mistreatment at the hands of Sri Lankan authorities.  Nor is there a real chance that he will be persecuted by the pro-government militia.  The Tribunal finds that he does not face a real chance of persecution in Sri Lanka on account of his Tamil race or his real or imputed political opinions.  It is not satisfied that he is a person to whom Australia has protection obligations under the Refugees Convention and Protocol and, therefore, concludes that he does not meet that criterion for the purposes of granting a protection visa.”

21                  It is common ground that the Tribunal decision is judicially reviewable pursuant to s 475(1)(b) of the Migration Act 1958 (“the Act”).  It was first contended on behalf of the applicant that the Tribunal had erred in law by failing to deal appropriately with expert evidence constituted by the two psychologists’ reports.  The first was by a counsellor from the University of Melbourne Counselling Service whom the applicant consulted after he had been advised of the initial refusal by a delegate of the Minister of his application for a protection visa.

22                  Her letter, which was addressed to the Tribunal, contained this passage;

“Mr Subramaniam tells me that he escaped from his home country of Sri Lanka in July 1997.  Mr Subramaniam's father and older brother who were supporters of the Liberation Tamil Tigers (LTT) were killed in 1989 during the civil war.  He informs me that he witnessed the bloodshed and aftermath of their deaths.  He reports having subsequently been kidnapped and tortured on several occasions by the Sri Lankan Police because of his family's prior involvement with the LTT.  He believes that he was tortured in order to obtain information about the LTT and its members.

In my opinion Mr Subramaniam has suffered and continues to suffer from post-traumatic stress as a direct result of his earlier experiences in his home country.  The emotional, physical and behavioural symptoms which result from trauma as suffered by Mr Subramaniam are evident.  He is understandably fearful for his own safety in the event that he is made to return to his home country.

I believe that the rejection of Mr Subramaniam's application for a protection visa has had and continues to have a severe psychological impact on him.  In my opinion it is detrimental to Mr Subramaniam's psychological welfare to be denied a protection visa and I strongly support his application.”

23                  The second psychologist to report on the applicant was Mr Leo Sexton, a counsellor with the Victorian Foundations for Survivors of Torture Inc., who reported to the Tribunal that he had seen the applicant on ten occasions “to conduct a thorough psychological assessment and to provide short-term psychotherapy to help him manage his debilitating symptoms”.

24                  In his report to the Tribunal, Mr Sexton recounted the applicant's background, including what he called “his history of persecution” and concluded with this “Psychological Assessment” and “Conclusion”;

“Coping Mechanisms:

From the age of 13 Mr Subramaniam has experienced multiple losses and trauma.  In response he has developed strong and adaptive coping mechanisms.  The key strategy he employs is to be very active and industrious so that the memories of the past have little room to manifest in his daily life.  This avoidance of the past has been greatly facilitated by his strong commitment to study.  Study has played an important function in his life.  It occupies him so that he does not think about the past and it provides a meaning, purpose and hope for the future.  It has become his way of overcoming the tragedy and trauma in his life.

Trauma Reaction:

In May 1998 Mr Subramaniam's refugee application was rejected.  This raised the fear of deportation to Sri Lanka and further persecution.  This unexpected threat to his safety shattered his normal defences and re-triggered the psychological trauma. 

.           He described being overwhelmed by fear and anxiety that he would be forcefully returned to Sri Lanka. 

.           He experienced intense traumatic nightmares about being tortured and police arresting people.  He woke sweating and shaking with fear.

.           He could no longer avoid thinking about and remembering his traumatic past particularly the time he was taken to the river to be executed. 

.           His sleep was severely disturbed.  While going to bed early at 9.30 pm he could not sleep until about 3 am.  He then slept fitfully until 8 am. 

.           He became significantly depressed with a corresponding loss of his appetite and interest in his daily activities including his study.  He also reported feeling tearful, lethargic and having lost hope of ever escaping persecution in Sri Lanka. 

These intense, emotional and cognitive disturbances had a major impact on his ability to concentrate on his studies, which up until this point had been going well.  He was unable to apply himself to preparing for mid-year exams, and consequently, only passed one of two subjects.  Mr Subramaniam believes that when functioning at his best he is capable of getting Honours consistently.

Through counselling Mr Subramaniam has made a significant progress and has now regained much of his previous composure.  He has taken new hope in the Refugee Review Tribunal process and is now more in control of his thoughts and emotions.  He is successfully channelling his energy into his studies again, and has passed all his second semester subjects.

Conclusion:

From the age of 13, Mr Subramaniam and his family have been identified as LTTE supporters which has resulted in several life-threatening traumas, the tragic loss of his father and brother, and constant police harassment and persecution.  These experiences have had a major impact on his life.  For the most part he has been resilient, and developed strong and successful coping strategies.  In response to the stress and threat of a negative primary decision in his refugee application his psychological defences were shattered and he experienced a range of symptoms which were consistent with a delayed post-traumatic stress reaction.”

25                  The Tribunal discussed both psychological reports collectively and somewhat elliptically, saying in its reasons;

“The psychological reports that have been provided by the Applicant indicate that he suffers from various psychological ailments.  Given the atrocities visited on his family in 1989 there is no reason to doubt that he continues to suffer.  However, the Tribunal does not accept other aspects of the Applicant's claims, for the reasons set out above, and does not find those claims to be any more believable because they have been repeated to a number of medical or psychological practitioners.”

26                  Mr Krohn of Counsel for the applicant contended that the Tribunal's treatment of the psychological evidence revealed an error of law because the Tribunal had failed to perceive that evidence as doing more than recounting a history presented by the applicant and as identifying symptoms which were consistent with, and therefore corroborative of, that history.  In particular, Counsel relied on Mr Sexton's reference to “re-activation of trauma-related symptoms resulting from experiences of torture and trauma in Sri Lanka” as “a psychologist stating a psychological fact, something which in his opinion is true, given his observation of the applicant”.

27                  In support of this first contention, reference was made to Quick v Stoland Pty Ltd (1998) 157 ALR 615, where Finkelstein J observed, at 625:

“The function of an expert is to provide the trier of fact, judge or jury, with an inference which the judge or jury, due to the technical nature of the facts, is unable to formulate.

......

“An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience of a judge or jury.  If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary [R v Turner (1974) 60 Crim App R 80 at 83, Laughton LJ;  see also Clark v Ryan (1960) 103 CLR 486 at 491-492;  Murphy v R (1989) 167 CLR 94 at 111, 130;  86 ALR 35;  Farrell v R (1998) 155 ALR 652 at 655].” ”

28                  However, I doubt whether the way in which Mr Krohn sought to rely on the psychological evidence in this case was as supporting an available inference.  It was rather invoked as an expression of expert opinion that the account of past persecutory incidents given to the psychologists and to the Tribunal was likely to be true because of the expert’s assessment of the applicant as inherently truthful.  Understood in that way, the material was adduced for a corroborative purpose and it was open to the Tribunal to accept it or reject it without committing a legal error in the requisite sense, even if the Tribunal did not fully apprehend or even understand the purpose for which it was proffered.

29                  Doubtless the psychological evidence, if adduced in a traditional adversary forensic context, would have been tested by cross-examination or, at least, would have been the subject of competing submissions as to the weight or effect to be given to that evidence.  However, the fact that the Tribunal did not have those advantages does not entail that its treatment of the psychological evidence was infected by an error of law.

30                  It was secondly contended on behalf of the applicant that the Tribunal had failed to taken into account a relevant consideration or relevant material and that amounted to a constructive failure to exercise jurisdiction in the sense discussed by the High Court in its recent judgment in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.  In the joint judgment of McHugh, Gummow and Hayne JJ in that case, reference was made to s 430 of the Act as to which their Honours said at [69];

“The provision entitles a court to infer that any matter not mentioned in the s.430 statement was not considered by the tribunal to be material.  [Repatriation Commission v O’Brien (1985) 155 CLR 422 at 446;  58 ALR 119 at 136 per Brennan J;  Sullivan v Department of Transport (1978) 20 ALR 323 at 348-9;  1 ALD 383 at 408-9 per Deane J, ALR 353;  ALD 413 per Fisher J;  cf Fleming v R (1998) 197 CLR 250 at 262-3 [28]-[29];  158 ALR 379 at 388.]  This may reveal some basis for judicial review by the Federal Court under Part 8 of the Act or by this court in proceedings brought under s 75(v) of the Constitution.  For example, it may reveal that the tribunal made some error of law of the kind mentioned in s.476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the tribunal.  It may reveal jurisdictional error.  [Craig v South Australia (1995) 184 CLR 163 at 179;  131 ALR 595 AT 602.]  The Tribunal identification of what it had considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.  [Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24;  66 ALR 299.]”

31                  After referring to the well-known exposition of principle by Brennan J in Attorney-General for New South Wales v Quin (1990) 170 CLR 1, at 35 to 36, their Honours in Yusuf continued, at [74];

“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. 

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, [(1997) 191 CLR 559 at 575;  144 ALR 567 at 579 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.] 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).  [O’Brien (1985) 155 CLR 422 at 446;  58 ALR 119 at 136 per Brennan J;  Sullivan (1978) 20 ALR 323 at 348-9;  1 ALD 383 at 408-9 per Deane J, ALR 353;  ALD 413 per Fisher J]  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 of has taken account of irrelevant considerations.”

32                  In the present case the Tribunal did make findings adverse to the applicant about some of his claims to past persecution.  The applicant's complaint is not the Tribunal ignored material directed to that issue, but that it failed to regard, as probative of his evidence forming part of that material, the evidence of the psychologists who had accepted his account as true.  The Tribunal, in my view, was not obliged to explain its reasons for taking that course, or even to set out its understanding of the way in which the psychological evidence was relied on.  As North J said in a similar context in Algama v Minister for Immigration and Multicultural Affairs (2001) FCA 476 at [127];

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

Even if the Tribunal had failed to give reasons for rejecting the opinion of the psychologist that the applicants had suffered persecution, the Tribunal would not have failed to comply with s 430(1)(b).  The psychologist's opinion as to the existence of the background facts was simply material inconsistent with the view which the Tribunal formed that the applicants had not suffered persecution.”

33                  I understand, of course, that his Honour was there considering a complaint of failure to comply with s 430(1)(b) and not a complaint, as formulated in this case, of error of law or a failure to exercise jurisdiction.  However, I consider that the observations of his Honour can be paraphrased to apply with some force to the contentions advanced in the present case.

34                  I refer also to Al Raied v Minister for Immigration and Multicultural Affairs (2001) FCA 313, where a Full Court of this Court said, at [34];

“Even if contrary to these findings, this material could be somehow treated as relevant to the objective aspects of the parents' claim, this would still not avail the appellant here.  The most that could be said in that event would be that the Tribunal was entitled to use this evidence in that manner.  It was certainly not bound to do so.  If it decided not to do so, there was no obligation on the Tribunal to refer to this material in its decision.  Counsel for the appellant has submitted that the Tribunal's failure to discuss its evidence in its ‘Findings and Reasons’ must mean that the Tribunal did not consider whether these inferences could be drawn from the evidence.  This, he says, is an error of law.  But this is not correct.  Even if, contrary to our expressed views, favourable inferences were available to be drawn from this material, it cannot be assumed that the Tribunal's silence on this issue meant that the Tribunal mistakenly assumed the evidence was irrelevant.  Its silence is equally consistent with the proposition that the Tribunal considered the material but declined, as a matter of fact, to draw any favourable inferences from it.  It was not obliged to lay bare every aspect of its fact finding process.  Indeed, it is now established that s.430 does not require the Tribunal to give reasons for rejecting evidence which is inconsistent with its factual finding.  As the majority of the Court said in Singh, (par 46);

“There is no specific requirement in s.430 for the RRT to give reasons for rejecting or attaching no weight to, evidence or other material which would tend to undermine any finding it made.  That is the view endorsed by the decisions referred to in par 12 above, and in our view it is consistent with the language of the section.  The decision of the Full Court in Arudselvan v Minister for Immigration and Multicultural Affairs [1999] FCA 1726 provides another illustration of this approach.  There the Court held that the RRT was not obliged to analyse material submitted by the applicant, and to give reasons for not accepting any of it that might be thought to be inconsistent with the conclusions it reached.”

35                  For the sake of completeness, I should refer to something advanced by way of an alternative contention on behalf of the applicant, that the Tribunal’s ignoring relevant material may signify a failure to exercise its jurisdiction.  That argument was said to be made available by the observations to this effect in the joint judgment in Yusuf at [82] to [84], where their Honours said;

“It is necessary, however, to understand what is meant by ‘jurisdictional error’ under the general law the consequences that follow from a decision-maker making such an error.  As was said in Craig v South Australia, [(1995) 184 CLR 163 at 179] if an administrative tribunal (like the Tribunal)

‘… falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it’.

“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.  [cf Re Refugee Review Tribunal;  Ex parte Aala (2000) 176 ALR 219;  75 ALJR 52.]  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material?  What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made;  he or she did not have the jurisdiction to make it.  Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.  [Craig (1995) 184 CLR 163 at 179;  131 ALR 595 at 602.] 

No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in para (d) of s 476(1).  Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1).  All this being so, there is no reason to give either paragraph (b) or paragraph (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs.  In particular, it is important to recognise that, if the tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it ‘exceeds its authority or powers’.  If that is so, the person who purported to make the decision ‘did not have jurisdiction’ to make the decision he or she made, and the decision ‘was not authorised’ by the Act. 

Moreover, in such a case the decision may well, within the meaning of para (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.”

... ... ... ... ...

…If the tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found.  If that is so, the ground in s 461(1)(e) is made out. 

Paragraphs (b), (c) and (e) would thus each be engaged in such a case and the Federal Court would have jurisdiction under Pt 8 of the Act to review the Tribunal's decision.  This Court would also have original jurisdiction in the matter and could grant relief under s 75(v).”

36                  The transition from “relevant considerations” to “relevant material” and then to the Tribunal's asking itself the wrong question in this relatively dense context, is not, with respect, entirely helpful.  As Heerey J observed in a judgment delivered this morning in Thirukkumar v Minister for Immigration and Multicultural Affairs (2001) FCA 864, at [28]-[29];

“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]).

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.”

37                  However, even taking the view of “relevant material” most favourable to the applicant in the present case, I regard it as encompassing material relevant to the question of whether the applicant had been subjected to persecution or harassment between 1992 and 1997.  On that view it cannot be said that the Tribunal ignored, as distinct from discounted, the psychological evidence as bearing on that question.

38                  For these reasons I am unable to impute to the Tribunal an error of law on either of the grounds advanced on behalf of the applicant.  Accordingly, the application must be dismissed with costs. 

Associate:

Dated:              10 July 2001