FEDERAL COURT OF AUSTRALIA

Applicant RV v Minister for Immigration and Multicultural Affairs

[2001] FCA 1034

MIGRATION – review of decision of Refugee Review Tribunal – failure to observe procedures – jurisdictional error – requirement in s 430(1)(d) to refer to evidence on which findings of fact based not a “procedure” within meaning of s 476(1)(a) – error of law.

Migration Act 1958 (Cth), Pt 8, ss 430(1)(c), (d), 476(1)(a), (b), (c), (e)

Chan Yee Kin v  Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388, 430 referred to

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 4-5, 20, 21-22 applied

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 not followed

Zyfi v Minister for Immigration and Multicultural Affairs [2001] FCA 978 at [9] referred to

Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 referred to

Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 referred to

Sivaram v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 379 referred to

Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425 referred to

Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 referred to

Minister for Immigration and Multicultural Affairs v Epeabaka (1999)  84 FCR 411 applied

Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 referred to

Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 referred to

APPLICANT RV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V796 of 2000

WEINBERG J

3 AUGUST 2001

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

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 under Pt 8 of the Migration Act 1958 (Cth) (“the Act”) to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 1 September 2000.  By that decision the Tribunal affirmed a decision of a delegate of the respondent not to grant a protection visa to the applicant.

Background

2                     The applicant is a 55 year old Sri Lankan woman of Tamil ethnicity.  She arrived lawfully in Australia on 12 March 1997, as the holder of a visitor’s visa.  On 10 June 1997 she lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 10 November 1997 that application was refused.  On 27 November 1997 she filed a valid application for review of that decision with the Tribunal.  On 23 August 2000 she attended a hearing of the Tribunal to give oral evidence.  Her son-in-law also gave evidence on her behalf.  On 1 September 2000 the Tribunal affirmed the decision of the delegate rejecting her claims to refugee status. 

The applicant’s claims

3                     The applicant’s case in support of her claim to refugee status is based upon her Tamil ethnicity, and her real and imputed political opinions arising out of her affiliation with the Liberation Tigers of Tamil Eelam (“LTTE”).

4                     The applicant was born in Inuval, on the Jaffna Peninsula.  She lived with her family in Valvettiturai, which is also on the Jaffna.  She was widowed in 1979, and has three daughters and two sons. 

5                     The applicant claimed that her two oldest children, a daughter born in 1963, and a son born in 1964, started helping the LTTE in its struggle for independence in 1983.  Her second son, born in 1966, joined the cause in 1987.  Her second daughter lived in Colombo after 1986, but had to flee the country because her husband was involved with the LTTE.  Her youngest child remained with the applicant in Valvettiturai.

6                     In 1987 an Indian peace keeping force was sent to Sri Lanka.  The applicant claimed that her children were detained by that peace keeping force for varying periods for reasons related to their political activities.  The two oldest children eventually fled to Canada, the eldest daughter in 1989 and the eldest son in 1992.  Both were granted refugee status soon afterwards. 

7                     The applicant’s second son moved to Colombo after the peace keeping force left Sri Lanka in 1990.  However, he was denounced by rival Tamil groups allied to the government, and returned to Jaffna later that year.  The applicant claimed that she did not see him again after 1992 when she moved to Colombo to live with her second daughter.  She lost contact entirely with her son in 1995.  However, she had heard that he was no longer involved with the LTTE. 

8                     The applicant’s second daughter fled to Australia with her husband in 1995.  It appears that he had been targeted by the authorities as a result of his involvement with the LTTE.  Both he and his wife had since been granted refugee status in this country. 

9                     The applicant’s youngest daughter had also gone to Colombo to avoid attention from the peace keeping force.  However she had been harassed, and moved to England in 1991 where she had been granted refugee status.

10                  The applicant claimed that as a result of her children’s involvement with the LTTE she came to be perceived as a supporter of that organisation.  Each time one of her children was arrested, she had to pay a large sum of money, and undergo harassment, in order to secure their release. 

11                  The Tribunal summarised these aspects of the applicant’s claims in the following terms:

“…On the occasions she attended camps to arrange their release, she was abused and harassed by army personnel.  After her first son left for Canada, she was interrogated about his whereabouts.  Similarly, she was questioned about her son-in-law after her daughter came to Australia in October 1995.  She told them he had gone to Jaffna and she was accused of helping terrorists and threatened with jail.  She was harassed after that time and went to live with a friend in February 1996.  However, she was harassed at her friend's house, so she returned home.”

12                  The applicant added:

“… that in April 1996 she was threatened at gunpoint and told she would be thrown in the river.  Her children advised her to leave for Canada.”

13                  In July 1995 the applicant obtained a passport which was in her own name.  In March 1996 she obtained a visa to enable her to visit Canada.  She claimed that she did not leave Sri Lanka at that stage because she could not bring herself to live in any of the countries where her children now resided, those countries being too cold. 

14                  The applicant claimed that it was only after she was threatened in April 1996 that she finally decided that she had to leave Sri Lanka.  However, she did not depart until 30 June 1996.  She said that she was able to pass through security checks at the airport because her agent had arranged for bribes to be paid.  She agreed that she had not been on any wanted list, and said that the reason she had not been questioned at the airport was because of her age. 

15                  The applicant said that she had been granted permanent resident status after her arrival in Canada.  She had remained in that country for a time, and had then gone to the United Kingdom before coming to Australia. 

16                  The applicant claimed that she had left Sri Lanka because she could no longer tolerate the harassment to which she had been subjected.  She explained that although she had been issued with a passport in July 1995 and with a Canadian visa in March 1996, she had delayed her departure from Sri Lanka because she wanted to obtain information regarding her son in Jaffna.  She gave the same explanation for not having left Sri Lanka immediately after having being threatened at gunpoint in April 1996. 

17                  The applicant told the Tribunal that even though she had fled persecution when she left Sri Lanka in June 1996, it had been her intention at that stage ultimately to return there.  It was for that reason that she had not remained permanently in Canada although she had permanent residence status.  She claimed that a few days after her arrival in Australia her son-in-law had received a letter from a friend in Sri Lanka, dated 15 March 1997.  The letter was tendered before the Tribunal.  In it the friend said that a few days earlier the police had raided the applicant’s home in Colombo, beaten her servant, and accused the applicant of having supported terrorism.

18                  The applicant also tendered another letter purportedly written by her son-in-law’s friend, this time dated 10 March 2000.  It referred to the fact that the applicant’s servant had just been discharged from hospital.  The applicant said that she had been told that her servant had been beaten again by the police the week before the letter was written when they came to the house looking for her. 

19                  The applicant’s son-in-law told the Tribunal that his friend had telephoned him and told him that a female relative from Jaffna had stayed at the house, and an informer had told the police that this woman was the applicant.  The friend said that the police had gone to the house and beaten the servant in an attempt to obtain information about the applicant’s whereabouts.

20                  In her written submission filed with the Tribunal on 19 March 1998 the applicant said that she believed that she would have been arrested and killed if she had been at home on the occasion of the second visit by the police.  She said that she had not originally abandoned hope of returning to Sri Lanka, but had now concluded that that was impossible.

21                  The applicant claimed that the fact that she had never been arrested while in Sri Lanka was of no significance.  She said that people suspected of supporting the LTTE were not always arrested.  However, “most people who have links with the LTTE are either persecuted, harassed or killed …”.  She said that it was not only young male Tamils who were at risk of being seriously harmed, but Tamils of all ages, men and women.  She explained that after hostilities were renewed between the government and the LTTE in April 1995 she had obtained a passport “through the back door”.  It was only after the army had resumed control of Jaffna in late 1995 that the authorities had discovered details of those who had links with the LTTE.  And it was only after her daughter and son-in-law left for Australia in October 1995 that she had been specifically targeted and persecuted. 

22                  The applicant said that she believed that she would be tortured and made to “disappear” if she were required to return to Sri Lanka.  She claimed that those who are known to have applied for political asylum in foreign countries are routinely arrested upon their return.  She referred to several previous decisions of the Tribunal, and to material from other sources, in support of her claims.

The legislative framework

23                  The prescribed criteria for the grant of a protection visa are set out in Pt 866 of Sch 2 of the Migration Regulations 1994 (“the regulations”).  One such criterion is that at the time of decision the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (“the Convention”).  

24                  Relevantly, Australia has protection obligations to the applicant if she demonstrates that she is a person who:

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

25                  This definition was considered by the High Court in Chan Yee Kin v  Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.  The critical issue is whether the applicant had a “well-founded fear of being persecuted” for one or more of the Convention reasons contained within the definition.

26                  In dealing with the concept of “persecution” the Tribunal referred to the observations of JC Hathaway, The Law of Refugee Status at 104-105 where “persecution” is defined as:

“…the sustained or systematic violation of basic human rights demonstrative of a failure of state protection”. 

27                  The Tribunal also referred to what Mason CJ said about the term “persecution” in Chan where his Honour, at 388, described it as:

"... some serious punishment or penalty or some significant detriment or disadvantage if he returns.  Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason."

28                  The Tribunal accepted that harm could amount to persecution even if not inflicted over a period of time.  In Chan, McHugh J said (at 430):

“Nor is it a necessary element of ‘persecution’ that the individual be the victim of a series of acts.  A single act of oppression may suffice.  As long as the person is threatened with harm and the harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is ‘being persecuted’ for the purposes of the Convention.”

The Tribunal’s findings

29                  The Tribunal accepted that the applicant is a national of Sri Lanka, that she is a Hindu Tamil who was born and lived on the Jaffna Peninsula until she moved to Colombo in 1992, and that four of her children, at least, had been affiliated with the LTTE.  It accepted that three of those children had fled abroad between 1991 and 1993, and that the fourth was living in Jaffna when his mother lost contact with him in 1995.  It accepted that the fifth child had fled to Australia with her husband in 1995 because he was suspected of LTTE activities. 

30                  The Tribunal said that there was no reason to doubt that the applicant’s children had encountered difficulties because of their activities on behalf of the LTTE.  Nor was there any reason to doubt that the applicant had been forced to pay bribes to have her children released, or that she had been verbally abused by her children’s captors whenever she arranged to make those payments.  It noted, however, that apart  from the son who returned to Jaffna in 1990, and with whom the applicant lost all contact in 1995, her other children had all since left Sri Lanka. 

31                  The Tribunal then referred to the two letters tendered on behalf of the applicant.  It observed:

“It is odd that there is no other correspondence to support the claims that the police are actively searching for the Applicant so as to punish her for supporting the LTTE.  It is also odd that there is no correspondence that indicates the authorities are searching for her children and son-in-law who state that they directly worked for the LTTE, although it is her son-in-law’s house which she stated is the location of the police visits.  Likewise, it is strange that the police did not question her before she left the country if, as she claims, information about her connections with the LTTE came to light when the armed forces resumed control of Jaffna in late 1995.  Equally strange is that they would take 15 months to go to her former residence and then beat her servant who presumably knew she was abroad but lied to his interrogators.  Nor is it plausible that three years on they would again come and beat the servant for the same reasons.  The Tribunal finds it far-fetched that the police would be coming to the house of the Applicant’s son-in-law four years or so after the Applicant’s departure and beating the servant who cares for the house because they wanted to know where the Applicant is.  It is clear that she is overseas, as evidenced by the various security checks she satisfied in obtaining her replacement passport and leaving the country…”

32                  The Tribunal noted that the applicant had said in her original submission to the delegate that she was harassed when she went to the aid of her children.  She repeated that claim in her written submission to the Tribunal, and added that she had become a supporter of the LTTE as a result of her children’s involvement with that organisation.  She said that her life had come to be threatened only after her daughter and son-in-law left Sri Lanka in October 1995.  It was not until the hearing before the Tribunal on 23 August 2000 that she added, for the first time, that in April 1996 she had been threatened at gunpoint and told that she would be thrown in the river. 

33                  The Tribunal noted that despite her claim to have been constantly harassed in the years leading up to 1995, she had never left Sri Lanka.  The Tribunal also noted that she had had the opportunity to do so in 1991, while on a short visit to India.

34                  The Tribunal noted the applicant’s claim that she had obtained a new passport in 1995 in anticipation of leaving Sri Lanka.  However, she did not leave when her daughter and son-in-law fled in October 1995.  The Tribunal also noted that although she claimed that she had been harassed too such a degree that she had moved to a friend’s place in February 1996, she still did not avail herself of the use of the passport.  Indeed, she did not leave Sri Lanka for more than two months after being supposedly threatened at gunpoint in April 1996, even though by then she had a visa enabling her to go to Canada.  The Tribunal commented:

“…She still waited until 30 June 1996 to leave the country and even then, despite the claims that her life was at risk, she did not seek refugee status in either Canada or the UK.  Her delay in leaving Sri Lanka and then in seeking protection is at odds with her claims that she was in fear of persecution.  She explained that she had to obtain information about her son in Jaffna, although that explanation is not convincing, given that she had not contacted him since 1992, notwithstanding other people had brought news of him...”

35                  The Tribunal continued:

“…In written submissions, she states that she negotiated security procedures at the airport because she was not under suspicion due to her age.  At the hearing, she said she passed through those checks because she paid bribes, although her application form suggests that she only paid a bribe to obtain a passport.”

36                  The Tribunal summarised its findings in relation to the applicant’s claims as follows:

“The Tribunal is satisfied that the Applicant's children were involved with the LTTE or suspected of such involvement and finds that she had to pay bribes to have her children released from detention, and was harassed and verbally abused on those occasions. Such incidents occurred a few times between 1987 and 1992 and while such harassment must have been demeaning, the Tribunal is satisfied that it was not so serious as to amount to persecution.  In that respect, it notes that the Applicant was never arrested, charged or convicted of any offence. Until the hearing, her evidence disclose [sic] that she was verbally abused and threatened, and the Tribunal accepts that to be the case. However, it does not believe she was threatened at gunpoint some seven months after her last daughter left the country.  It is satisfied that harassment of the Applicant dissipated when her children left for overseas. Her failure to leave the country when she had the means to do so and when she alleges she was threatened in February and April 1996, is at odds with claims that she feared persecution, while it is consistent with a failure to utilise the existing protection she had in Canada or seek protection when she was in the UK.  While it is plausible that some inquiries were made about her daughter and son-in-law soon after their departure from Colombo, the Tribunal does not accept that the Applicant was harmed on that occasion. Nor does it accept that the police or other security agencies have any ongoing interest in her or have visited her son-in-law’s house in search of her. In that regard, it concludes that the two letters she produced to support that claim are fabrications that do not convert her own contrived claims into fact.” (emphasis added)

37                  The Tribunal continued:

“The Tribunal accepts that the Applicant subjectively fears she might be persecuted if she returns to Sri Lanka.  However, she is now in her fifties and four of her children have been abroad for many years. She has not seen the other child since 1992 and her evidence has not disclosed that she has been harassed on his account since she last saw that him.  It may be the case, as she has heard, that he has cut his ties with the LTTE, in which event the slim chances that she may have been asked about him have become even more remote. The Tribunal is satisfied that the Applicant suffered harassment in trying to assist her children but such harassment did not amount to persecution. It is also likely that she encountered some of the general discrimination directed at Tamils in Sri Lanka (see below) and the inconvenience of the security checks that afflict all residents of Colombo, where she lived for the four years before going to Canada.  However, the cumulative effect of her experiences does not add up to persecution and the Tribunal is satisfied that she did not have a well-founded fear of persecution for Convention reasons when she left Sri Lanka.  That finding is consistent with her delay in leaving when she had the means and opportunity to do so and her failure to utilise the permanent protection she had in Canada as a permanent resident or seek protection when she moved elsewhere overseas.

There was not a real chance the Applicant's fears of persecution would be realised when she left Sri Lanka and the chances that she might now face a real chance of persecution are even more remote because her children have been out of the country for significant periods and the Applicant has been abroad for the past four years or so.”  (emphasis added)

38                  After setting out in some detail a body of “country information” relating to conditions in Sri Lanka, the Tribunal returned to the applicant’s own particular circumstances.  It noted that she was in her fifties, and that she had lived for many years in Colombo where, she told the Tribunal, she had a number friends and distant relatives.  The Tribunal said:

“…In the absence of evidence to the contrary, the Tribunal finds that she negotiated the stringent security measures that are in place in Colombo without incident, including registering her residence, Tamil race and Jaffna birthplace with police for the purpose of residing there.  Her only significant encounters with police or the Army were in relation to assisting her children when they were detained on suspicion of LTTE links.  The Applicant was not detained and her treatment, although demeaning, is demonstrative of the fact that the authorities did not suspect her of affiliation with the LTTE.  The Tribunal does not accept that the authorities uncovered any information to the contrary when they resumed control in Jaffna in 1995, more than three years after the Applicant had left that part of Sri Lanka.”

39                  The Tribunal continued:

“…The Applicant does not have a history of suspected connection with the LTTE and does not share the profile of an LTTE ‘suspect’ as she is not young, nor newly-arrived from the north or east and unable to explain her reasons for being in Colombo.  She has her son-in-law’s house to which she can return.  In that respect, she told the Tribunal it is empty at the moment, so the Tribunal concludes that she would not be required to live in lodgings). [sic]”

40                  The Tribunal concluded that, for the reasons set out above, the applicant did not face a “real chance” of being suspected of connection with the LTTE, whether because she was a Tamil, or because of her children’s involvement with the LTTE.  It found that as a Tamil she might expect to be stopped and questioned from time to time in the tense security atmosphere which exists in Sri Lanka.  However, the chances that she would be persecuted were no more than remote.  Accordingly, she was not a person to whom Australia has protection obligations under the Convention.

The application for review to this Court

41                  It became clear, during the course of argument, that the applicant’s case turned upon a very narrow point.  It was pivotal to her claim that in 1995, and again in 1996, she had been harassed and threatened.  It was also pivotal to her claim that in April 1996 she had been threatened at gunpoint and told she would be thrown in the river.  The Tribunal had rejected these assertions.  It said that it did not believe that she would have been threatened at gunpoint some seven months after her youngest daughter left the country.  It also said that any “harassment” which might have been directed towards her while her children lived in Sri Lanka would have “dissipated” once her youngest daughter had left the country. 

42                  Section 430(1)(d) of the Act provides:

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

…

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

43                  Section 476(1) relevantly provides:

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

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

(b)     that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)     that the decision was not authorised by this Act or the regulations;

…

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

…”

44                  It was submitted on behalf of the applicant that the Tribunal had failed to comply with the requirements of s 430(1)(d) by not referring to the evidence or other material on which it based its finding that her claims regarding harassment and threats after October 1995 were untenable.  It was further submitted that this failure to comply with the requirements of s 430(1)(d) gave rise to the ground of review contained in s 476(1)(a) of the Act. 

45                  The applicant also submitted, in the alternative, that the Tribunal did not have jurisdiction to make the decision which it did (s 476(1)(b)), that the decision was not authorised by the Act or the regulations (s 476(1)(c)) and that the decision involved an error of law (s 476(1)(e)). 

46                  The applicant recognised that the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 might present an obstacle to her primary claim,  at least in so far as it depended upon a breach of s 430(1)(d) giving rise to the ground of review in s 476(1)(a).  However, it was submitted that, properly understood, Yusuf merely decided that the Tribunal was obliged to set out its findings on questions of fact which it considered to be material to the decision which it made, and to its reasons for reaching that decision.  To the extent that the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 had held to the contrary, Singh had been expressly overruled. 

47                  It was submitted, however, that notwithstanding dicta in Yusuf, Singh had not been overruled in so far as it determined that a breach of s 430(1) of the Act could give rise to the ground of review contained in s 476(1)(a).

48                  In Yusuf, McHugh, Gummow and Hayne JJ said (at 20):

“…Moreover, it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made.  It is, however, enough to say that the conclusion that, so far as now relevant, s 430 requires only the recording of what was found and does not impose any duty to make findings, means that an asserted failure to make findings is not a breach of s 430.  Accordingly, s 476(1)(a) is inapplicable.”  (emphasis added)

49                  Gleeson CJ, who agreed with their Honours, said at 4-5:

“…It was not suggested, in either of the present cases, that the Tribunal made some finding of fact which it failed to set out. The substance of the complaint was that the Tribunal failed to make a finding upon a particular question.

Such a complaint could only invoke the ground of judicial review in s 476(1)(a) if a failure to make a finding on a question of fact means that a procedure required by the Act to be observed in connection with the making of the decision has not been observed.

If s 476(1)(a) has that meaning, then there is an incongruity in the section       when read as a whole, because s 476(3)(e) qualifies s 476(1)(d) by excluding the Tribunal's failure to take a relevant consideration into account from the category of an improper exercise of power. The difference between failing to make a finding on a material question of fact, and failing to take a relevant consideration into account, is elusive. The former is narrower than the latter, but most examples of the former could also be presented as the latter. Both of the present cases involve a contention which is not materially different from a claim that the Tribunal failed to take a relevant consideration into account.

To treat a failure to make a finding on a question of fact as a failure to observe a procedure in connection with the  making of a decision involves a strained interpretation of the statutory language, especially in a context which distinguishes between legal review (indeed, somewhat attenuated legal review) and full merits review (of the kind in which the Tribunal engages when it reviews a delegate's decision).”  (emphasis added)

50                  It was submitted on behalf of the applicant that nothing said by the majority in Yusuf concerning the meaning to be attributed to s 476(1)(a) was binding upon this Court and their Honours’ comments on this aspect should be regarded merely as dicta.  Singh still governed the question whether a failure to comply with s 430(1) could give rise to the ground of review contained in s 476(1)(a).

51                  In Zyfi v Minister for Immigration and Multicultural Affairs [2001] FCA 978 at [9], Sundberg J dealt with a similar submission. His Honour said:

“Gleeson CJ and McHugh, Gummow and Hayne JJ have held that the requirement in s 430(1)(c) is not a “procedure” within s 476 (1)(a). But I do not regard them as having decided that none of the other requirements in s 430(1) is a procedure. The case only concerned s 430(1)(c). Callinan J spoke more broadly of s 430(1), and some of his Honour’s language suggests that none of the requirements is a procedure. In those circumstances I should proceed on the basis that Yusuf does not decide that the requirement in s 430(1)(d) to refer to the evidence or other materials on which the findings of fact were based is not a procedure. I will assume it is.”  (emphasis added)

52                  With respect, I am unable to agree with his Honour’s conclusion that it was open to him to assume that the requirement in s 430(1)(d) to refer to the evidence or other material on which the findings of fact were based is relevantly a “procedure” within s 476(1)(a).  I can see no basis upon which to distinguish s 430(1)(d) from s 430(1)(c) in that regard.  The High Court in Yusuf expressly overruled Singh.  Although it was not necessary in Yusuf to determine definitively whether or not a breach of s 430(1)(c) (or any other part of s 430(1)) constitutes a failure to observe a procedure in connection with the making of a decision within the meaning of s 476 (1)(a), the majority made its views upon that question abundantly clear.  In my opinion the reasoning of the Full Court in Singh regarding that issue should no longer be regarded as binding upon any judge of this Court. 

53                  My conclusion that Singh is no longer binding on this aspect of its reasoning is fortified by the fact that a substantial body of authority which predates that case, some of it Full Court authority, approached the construction of s 430(1) in broadly the same manner as did the majority in Yusuf: Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811; Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940; Sivaram v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 379; and Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425.

54                  I also note that McHugh J adopted a broadly similar approach to the construction of s 430(1) and s 476(1)(a) in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407.

55                  In my opinion, even if the views of the majority in Yusuf be dicta, they are the considered views of at least four, and arguably five, members of the High Court upon the construction of these sections of the Act.  These views should be followed by a judge of this Court, in preference to the views of the Full Court in Singh whose judgment the High Court overruled in Yusuf.  I consider, therefore, that the failure of the Tribunal to comply with the requirements of s 430(1)(d) (assuming that there was such a failure) does not give rise to the ground of review contained in s 476(1)(a).

56                  There is, however, a simpler and more direct route to the conclusion that this ground of review must fail.  Section 430(1)(d) requires the Tribunal to refer to the evidence or any other material on which its findings of fact were based.  The applicant’s case proceeds upon the assumption that the Tribunal failed to meet that requirement.  Careful analysis of the Tribunal’s reasons for decision demonstrates that this was not so. 

57                  The Tribunal summarised the applicant’s case, noting specifically that she claimed to have been harassed, and even threatened at gunpoint, in the months after her daughter’s departure from Sri Lanka in October 1995.

58                  As noted earlier the Tribunal rejected these particular claims.  In its reasons for decision it made the following observations:

·                     The applicant’s initial written submissions to both the delegate and the Tribunal claimed that she was harassed in the period leading up to 1995 whenever she went to the aid of her children.  It was not until the hearing on 23 August 2000 that she added, for the first time, that a gun had been held to her throat in April 1996 and that she had been threatened with being thrown in the river.

·                     She said that she had obtained a new passport in July 1995 in anticipation of leaving Sri Lanka.  However, she did not leave when her daughter and son-in-law fled in October 1995 and security officials questioned her about their whereabouts.  Nor did she leave when she said she was harassed to such an extent that she moved to a friend’s house in February 1996, nor in April when she was threatened, even though by that stage she had a visa entitling her to enter Canada.  She did not leave Sri Lanka until 30 June 1996.

·                     Despite her claim that her life was at risk, she did not seek refugee status in either Canada or the United Kingdom.

·                     Her explanation for the delay in leaving Sri Lanka, namely that she wished to obtain information about her son in Jaffna, was not convincing given that she had not had any contact with him since 1992.

·                     In written submissions to the Tribunal, she said that she had successfully negotiated security procedures at the airport because she had not been under suspicion due to her age.  At the hearing, she gave a different account saying that she had passed through security checks because she paid bribes.

59                  The main reason given by the Tribunal for rejecting the applicant’s claims of harassment in the period after October 1995, and of having been threatened with a gun in April 1996, was her delay in leaving Sri Lanka for some months after these events had supposedly occurred.  In addition, the Tribunal considered it to be telling that she had failed to mention the incident concerning the gun in both her initial submissions to the delegate, and to the Tribunal.  Not surprisingly, it found that the incident concerning the gun was a fabrication.

60                  In my opinion, no one reading the Tribunal’s reasons for decision could be left in any real doubt as to why it had rejected the applicant’s claims regarding the events after October 1995.  The Tribunal referred to the evidence and other material upon which it based its finding that those events did not occur. There was, therefore, no contravention of s 430(1)(d).

61                  For these reasons the applicant’s first ground of review must be rejected.

62                  As noted earlier, the applicant contended, in the alternative, that the manner in which the Tribunal had dealt with her claims gave rise to jurisdictional error.  The applicant relied in support of that contention upon the following observation in the joint judgment in Yusuf (supra) at 20:

“That is not to say that the Federal Court has no jurisdiction to deal with cases in which it is alleged that the tribunal failed to make some relevant finding of fact.  For the reasons stated earlier, a complaint of that kind will often amount to a complaint of error of law or of failure to take account of relevant considerations.  It is necessary, therefore, to consider some further aspects of s 476, especially subss (1)(b), (c) and (e) and (3)(d) and (e). …”

63                  The joint judgment continued at 21-22:

“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. 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 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.” (footnotes omitted)

64                  The applicant submitted that a failure to take account of relevant considerations must now be recognised as being capable of giving rise to jurisdictional error under ss 476(1)(b) and 476(1)(c), and also to error of law under s 476(1)(e).  It was further submitted that it was clear from the manner in which the Tribunal had dealt with the post October 1995 claims that it had ignored relevant material. 

65                  The relevant material which the Tribunal was said to have ignored was never specifically identified.  However, it was submitted that its failure to refer to the evidence upon which its findings were based must be taken as indicating that it had not properly considered material which had to be relevant.  It was submitted that, following Yusuf, it could be inferred that if the Tribunal did not refer to a particular matter in terms, it did not consider that matter to be material.  If the Tribunal did not refer to the evidence in support of its findings in relation to the post October 1995 claims, that must be because there was no evidence to support those findings.  The Tribunal must therefore have ignored relevant material, and must therefore have committed jurisdictional error.

66                  The respondent’s answer to this submission was that the Tribunal did refer to the evidence upon which it based its findings.  In other words, the same matters which prevented the applicant from succeeding in relation to her first ground of review also operated to prevent her from succeeding in relation to her alternative grounds of review.

67                  I accept the respondent’s submission.  In my opinion, there was ample evidence upon which the Tribunal was entitled to reject the applicant’s claims concerning the events of 1995 and 1996, including the April 1996 incident.  The Tribunal referred to that evidence, and did so in adequate terms. 

68                  When the applicant first presented her claims to the delegate, she set out in considerable detail the history of harassment to which she had been subjected throughout her time in Sri Lanka.  However, she made no mention of a gun having been held to her throat in April 1996, or of having been threatened with being thrown in the river.  All that she said was that in about April 1996 she had been summoned to the police station and questioned about her son-in-law’s whereabouts. 

69                  When the applicant filed her written submission in May 1998 she again omitted to mention the April 1996 incident.  The Tribunal was entitled to conclude that this omission was significant, and that it damaged the applicant’s credibility.  The Tribunal was also entitled to conclude that the applicant’s delay in leaving Sri Lanka, and her stated intention, at that stage, of returning there, were at odds with the claims she later made concerning the post October 1995 events. 

70                  The applicant submitted that the Tribunal’s acceptance of her claim that she subjectively feared that she might be persecuted if she returned to Sri Lanka could not be reconciled with its having rejected her claims concerning the events of 1995 and 1996.  That submission appears to have all of the hallmarks of an argument that the Tribunal’s reasons for decision are illogical, or otherwise unreasonable.  It was established in  Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 that considerations such as these do not, by themselves, give rise to grounds of review under Pt 8 of the Act. See also Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 437 and Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 at [13] per Hill J and at [26] per Finkelstein J, noting however his Honour’s suggestion that a decision that is logically flawed, if made in relation to “jurisdictional fact”, may be reviewable for error of law.

71                  In any event, I do not accept that the Tribunal’s reasoning was, in any sense, illogical.  There is no reason why the Tribunal could not have found that the applicant had a subjective fear of persecution if required to return to Sri Lanka, but that any such fear was not “well-founded”.  The history which she gave of pre 1995 harassment, which the Tribunal accepted, would account for the finding regarding her subjective fear of persecution.  There is no inconsistency between the Tribunal’s rejection of her claims concerning the events of late 1995 and 1996, and its acceptance of her subjective fears upon return.

72                  In my opinion this application must be dismissed.  The applicant must pay the respondent’s costs.

Associate:

Dated:              3 August 2001