FEDERAL COURT OF AUSTRALIA
Abeysinghe v Minister for Immigration & Multicultural Affairs [2001] FCA 1201
MIGRATION – review of decision of Refugee Review Tribunal – whether Tribunal’s decision involved an error of law under s 476(1)(e) – whether Tribunal misconceived the scope of its duty to review the delegate’s decision – whether there was a constructive failure by the Tribunal to exercise its jurisdiction.
Migration Act 1958 (Cth)
Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368 followed
Antonio v Minister for Immigration and Multicultural Affairs ([1999] FCA 21 followed
Antonio v Minister for Immigration and Multicultural Affairs [1999] FCA 1210 followed
Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 followed
Karnafi v Minister for Immigration and Multicultural Affairs (1999) FCA 191 followed
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 followed
Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 followed
Minister for Immigration and Multicultural Affairs v Anthonypillai 106 FCR 426 followed
Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 followed
Minister for Immigration and Multicultural Affairs v Israelian [2001] HCA 30 followed
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 followed
Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 followed
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 followed
Pollocks v Minister for Immigration and Multicultural Affairs [2000] FCA 1514 followed
Ragunatham v Minister for Immigration and Multicultural Affairs [2001] FCA 1142 followed
Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 followed
Rana Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1706 distinguished
Sukhbir Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1705 followed
Warnakulasuriya v Minister for Immigration and Multicultural Affairs [1998] FCA 336 followed
“A” v Minister for Immigration and Multicultural Affairs [1998] FCA 1738 followed
ANURUDDHA BANDARA ABEYSINGHE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NO. VG 974 OF 2000
JUDGE: BEAUMONT J
DATE: 29 AUGUST 2001
PLACE: MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
ANURUDDHA BANDARA ABEYSINGHE APPLICANT
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The application be dismissed, with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
APPLICANT
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
BEAUMONT J:
INTRODUCTION
1 The applicant seeks relief by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of the Minister’s delegate not to grant the applicant a protection visa under the Migration Act 1958 (Cth) (“the Act”).
2 In order to understand the issues that arise in the application it will be necessary to refer to the Tribunal’s reasons.
THE TRIBUNAL’S REASONS
3 After explaining the meaning of the 1951 Convention Relating to the Status of Refugees (“the Convention”), as interpreted by the course of High Court authority, the Tribunal expressed the reasons for its decision relevantly as follows:
(a) The applicant’s claims and evidence
4 The Tribunal summarised the applicant’s claims, and his evidence, as follows:
(i) Claims made in writing to the Department of Immigration and Multicultural Affairs (“the Department”) and to the Tribunal
5 The Tribunal noted that the following claims had been made in writing to the Department and to the Tribunal:
· The applicant, a citizen of Sri Lanka (a 32 year old Sinhalese man from Colombo) arrived in Australia in March 1995. On 30 June 1997, the day before his temporary entry visa was due to expire, he lodged an application for a protection (class AZ) visa with the Department.
· On 2 February 1999 a delegate of the Minister refused to grant a protection visa and on 26 February 1999 the applicant applied for review of that decision.
· The applicant listed his occupation as a computer programmer in Sri Lanka in 1994.
· The applicant claimed that between 1992 and 1994, whilst undertaking post-graduate study in Colombo, he had met many Tamil students, one of whom he befriended and invited to live with him and his mother. They had discussed the separatist war and the applicant sympathised with the Tamil cause.
· The applicant claimed that, in October 1994, his Tamil friend was taken into custody by security forces when he was stopped at a checkpoint in the city.
· The applicant claimed that two days after this his house was surrounded by security forces, and they searched the house and all the family’s belongings, and took away the Tamil lodger’s possessions.
· The applicant claimed that the security forces found some pamphlets connected to the Liberation Tigers of Tamil Eelam (“the LTTE”) guerilla war and they then began to punch him in the head and use abusive language. He claims that they flung his mother across the room and hit her in the face, then took him away for questioning.
· He claimed that he was taken to the Joint Operations Command centre in Colombo and was systematically beaten with a rubber hose and kicked for about an hour. He claims he was then held for a week, being tortured each day in a most brutal and inhuman way. He claimed they kept asking him about his connections with the Tamil separatists, which he denied having.
· He claimed his mother finally succeeded in getting him released under certain conditions and then took him to Galle to recover and receive medical treatment for the beatings.
· He claimed his mother decided to change her place of residence at this stage, as she was receiving continuous verbal threats from Tamils who lived nearby. She still received threats in her new residence.
· The applicant claimed he continued to receive threats and decided to leave Sri Lanka and came to Australia in March 1995.
· He claimed that if he returns to Sri Lanka, his life will be threatened.
· The applicant submitted a copy of a letter dated 26 November 1994, said to be from a medical practitioner in Sri Lanka, indicating that she had treated the applicant for two weeks from October 1994 for swelling in the upper part of the body, apparently as the result of an assault.
· He also produced a letter dated 12 April 1995, said to be on LTTE letterhead, indicating his involvement with the disappearance of an LTTE member, and threatening revenge. He claimed that such threatening letters were commonly used by the LTTE and that the LTTE is capable of carrying out threats.
· In a submission to the Tribunal the applicant indicated that the authorities were able to act with impunity, and so there was no record of harassment of him by officials, and that the authorities acted like secret police from the former Soviet Union.
· He claimed that he was able to leave the country as he had the necessary documents to obtain a passport, and there was little cross-checking of documents. He did not have a criminal record and so he was able to obtain a passport and leave undetected.
(ii) Claims made in oral evidence to the Tribunal
6 The following was noted by the Tribunal:
· The applicant reiterated his earlier claims.
· He added that his Tamil friend came from Vavuniya. He claimed the Tamil friend lived with him and his mother for about two or three months in the middle of 1994. He claimed to know his friend’s first name but not his second name. He said it was usual not to know a Tamil person’s second name.
· The applicant claimed that after his Tamil friend was arrested at a check point, the security forces had come to see his friend two or three days later.
· When the applicant was questioned about what he had done to locate his friend, he initially said nobody could do anything. On further questioning, the applicant said that he was angry because his friend might be involved in something, and he was a killer and a terrorist.
· When asked why he had brought him into his home in the first place, the applicant responded “things were like that in Sri Lanka, you can trust a person one day and not the other”.
· The applicant’s mother owned two houses in Colombo, one in which they lived, and one small tea and one small spice plantation in Kandy. They were considered to be upper middle class and comfortable.
· His mother had moved to England to live with his sister and obtained permanent residence there since the applicant left Sri Lanka.
· In relation to his own detention, the applicant said that he was released when his mother approached an uncle, who used to be senior in the police force.
· The range of actions the applicant could take after an arrest was discussed with the applicant, including approaching lawyers, fundamental rights actions in the courts, approaching more senior police authorities and Ministers and human rights organisations. However, the applicant did not wish to pay for (retain) a lawyer, as it was not appropriate to seek redress in this way in Sri Lanka – it would lead to more problems.
· After his arrest, he was supposed to report monthly to the police station, but he did not. He went straight to Galle and stayed with various friends and relatives.
· The matter of the letter from the doctor was discussed by the Tribunal with the applicant, including the fact that it simply noted that he had been treated for swelling in the upper body, apparently from an assault. The applicant was asked why he had obtained such a note. He said he might have wanted to take legal action, although he did not. He stated that it was usual to obtain such reports in Sri Lanka.
· He claimed people who said they were his Tamil friend’s relatives, had harassed his mother by phone and fax and by coming to the house, and threatening revenge. However, she did not report these incidents because the authorities were also asking questions about him.
· It was noted (by the Tribunal) that the letter allegedly from the LTTE was very polite and written in English. The applicant said there had been a number of letters. It was noted (by the Tribunal) that this approach seemed in contrast to the LTTE’s capacity for ruthless assassination of anyone considered a traitor. The applicant stated that the LTTE did not like to write in Sinhalese; that the LTTE could not deal with him as he was hiding in Galle, where there were few Tamils.
(b) Independent country information
7 The Tribunal considered independent information from the Department of Foreign Affairs and Trade (“DFAT”), specifically the following:
(i) The legal system
q The introductory section of the US State Department Report on Human Rights Practice for Sri Lanka in 1999 stated (inter alia) that Sri Lanka is a longstanding democratic republic with an active multi-party system. Constitutional power is shared between the popularly elected President and the 225-member Parliament. President Chandrika Kumaratunga leads the governing People’s Alliance, a coalition of parties. Both the Parliament and the President were elected in free and fair elections in 1994.
q The same US State Department Report indicated that the Sri Lankan Constitution provides for an independent judiciary, and that the government respects that right in practice. The Report described the Court system, mentioning that some legal aid was available.
(ii) Association (by the applicant) with the LTTE
8 The Tribunal noted the following sources of information:
q According to a US State Department Report for the 1994 year, when the People’s Alliance came to power in 1994 (the year the applicant claimed to be harassed), the Government initiated a dialogue with the LTTE, the first since 1990. Subsequently, the overall human rights performance of the military and the police improved significantly. However, security forces continued (in 1994) to conduct mass arrests of young Tamil males, especially after several terrorist bombings in Colombo – although such arrests were made less frequently than in 1993.
q A DFAT cable CL 38234, CIR No 329/95 of 15 December 1995 (CX 12970) (the year the applicant left Sri Lanka), illustrated the general situation of those likely to be suspected of LTTE activities. The overall assessment of local and international human rights observers was that, while Tamils may be more affected than non-Tamils by the security measures in Colombo designed to counter the LTTE security threat, this does not amount to officially-sanctioned discrimination or harassment of Tamil people as a group. Tamil people continued to have the protection of the law against unlawful activities by security forces.
(iii) Possible Sinhalese association with the LTTE
· The DFAT cable CX12970 went on to discuss the issue of LTTE sympathisers. It noted that neither DFAT nor its contacts had heard any recent plausible reports of Sinhalese suspected of sympathising with the LTTE. There may well have been cases of Sinhalese people who, for financial gain, have given assistance to the LTTE, but no recent example could be recalled.
· In subsequent queries, DFAT responded to the question of Sinhalese doing business with Tamils, through renting out rooms, being imputed with an LTTE profile. Following is an extract (CX22852) stating that it was plausible that a householder would rent out a room to a young Tamil from the North and the East; and in fact there was a lucrative market in doing so. But it was “utterly implausible” for the police to automatically impute such a householder with an LTTE profile, particularly if they were Sinhalese.
· DFAT acknowledged that whilst there are people of all communities who benefit financially from the war in Sri Lanka, it was not credible that a Sinhalese would “sympathise” with the LTTE.
(iv) Corruption and document fraud
· There had been a variety of reports about the prevalence of corruption and fraudulent documentation in Sri Lanka. The latest advice from DFAT on this matter (CX43698) is contained in a DFAT CIR No. 416/00 dated 7 August 2000 from Colombo which indicated that document fraud was widely and well practised in Sri Lanka. It was not difficult to obtain a fraudulent copy of any document and it was a known practice. A police criminal investigation department raid in Colombo uncovered fraudulent visas, passports, police reports and notices, court certificates and various stamps and seals.
(c) The Tribunal’s findings and reasons
9 Having noted that the applicant’s “story” was “a very simple one, of being associated with someone who was in the LTTE and then being imputed with an LTTE profile himself”, the Tribunal proceeded as follows:
q The Tribunal did not accept the applicant’s central claim that he had a Tamil friend who lived with him and who was arrested as a terrorist and disappeared. The Tribunal noted that the applicant did not present any independent evidence to indicate that the friend existed, had been detained, had been shown to have some connection with the LTTE, or had disappeared as a result of his arrest. The applicant had not produced any reports from the press, or from human rights groups.
q The Tribunal considered that the applicant’s personal accounts of his claims were not convincing. The Tribunal did not accept that the applicant would know so little about a person whom he said he had befriended for six months and had lived with for three months.
q Further, he was inconsistent about when and how he came to know of his friend’s arrest.
q The applicant was aware of the difficulties young Tamil males from the North and East face in Colombo, so that it was “implausible that [the] applicant would automatically assume, on learning that night that his friend had been detained on a bus, that his friend was a terrorist and killer, and that he would therefore, not do anything to help him. … [H]is other explanation of why he did not do anything, ie that nobody could do anything, [was] unconvincing in light of country information … that Sri Lanka is a long standing democracy with a functioning independent judiciary and a government committed to prosecuting breaches of the law.”
q It was “implausible that if he believed his friend were an LTTE member, he would leave his friend’s room in his house untouched until a few days later, when the security forces arrived and searched it and found incriminating pamphlets.”
q The Tribunal did not accept that the applicant came to the attention of the authorities through his (alleged) friend and did not accept that he was detained and tortured by the authorities as he claimed. The Tribunal “found unconvincing even the applicant’s description of his actions after his claimed release from detention. [The Tribunal did] not accept that the applicant would simply go into hiding, and not make representations to the authorities if he had been tortured in the way he claims.”
q The Tribunal observed that, while Sri Lanka is engaged in a civil war, the war is conducted in a confined area. Sri Lanka is also a long established democracy and there is an established and independent judiciary in operation. The applicant, with his upper middle class background and relatives who are qualified lawyers, would be more able than most to access the legal system, or make representations to high office holders, if he had been tortured as claimed.
q The Tribunal noted that the Sri Lankan government had been at pains to emphasise accountability of the security forces and to emphasise that it would not tolerate illegal activities by the security forces; and that Tamils, the people on the whole subject to security forces’ attention, had the protection of the law against unlawful activities by security forces, as well as access to the government’s Human Rights Task Force and the International Committee of the Red Cross and other human rights’ organisations.
q Further, country information submitted indicated that it was implausible that the security forces would impute an LTTE profile to a Sinhalese in the circumstances the applicant described.
q Given “that [the Tribunal did] not accept that a Tamil friend of the applicant’s disappeared in the circumstances he described, [the Tribunal did] not accept that the Tamil’s family or the LTTE subsequently threatened the applicant and his mother in the way that he described.”
q The Tribunal did not accept that either the letter from the doctor, or the letter said to be from the LTTE, helped his case. The letter from the doctor did not confirm that the applicant was tortured, nor did it indicate how the injuries were sustained.
q The Tribunal found that the letter said to be from the LTTE was “completely unconvincing”. It was written in English and in a very polite tone. The Tribunal could not accept that an efficient killing machine such as the LTTE (which, from a variety of reports, has little regard for the lives of Tamils or anyone else) would simply send the applicant a number of polite warnings on this matter.
q Even if the applicant had relocated to a relatively Sinhalese area of Sri Lanka, the Tribunal did not accept that the LTTE would not have been able to locate and kill him if they were seeking him, given country information about how ruthlessly the LTTE treats traitors. Considering these matters, together with DFAT advice about the extent of document fraud in Sri Lanka, the Tribunal was not prepared to place any weight on these documents.
q The Tribunal noted that the applicant claimed that he had the assistance of an agent to obtain his passport, obtain a visa to Australia and to exit the country. But even if the Tribunal were to accept this, many people use agents for these purposes, simply to speed up or to take the hard work out of a relatively specialised area. Agents are not used only to circumvent authorities, and the Tribunal did not accept that the applicant needed to do so in this case.
q The Tribunal, having considered all the evidence, was not satisfied that the applicant had ever been pursued by the authorities for the reason of his imputed support of the LTTE, nor that he had been pursued by the LTTE for his real or imputed anti-LTTE views. The Tribunal therefore found that there was no real chance that the applicant will be persecuted for either of these reasons, so that the applicant’s fear of persecution was not well-founded.
THE FIRST GROUND OF THE APPLICANT’S CLAIM FOR JUDICIAL REVIEW
10 In his amended application, the applicant relies upon three grounds. It will be convenient to consider them in turn.
11 The first Ground is that the Tribunal’s decision “involved an error of law, within s 476(1)(e) of the Act, in that [it] incorrectly interpreted, and applied, the applicable law”.
12 (By s 476(1)(e), it is relevantly provided that a ground for judicial review is 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….”)
13 In his particulars of this ground, the applicant claims that the Tribunal misconstrued, and misapplied, the test of “well-founded fear of persecution” in (a) its assessment of the applicant’s claims; (b) its determination of the requisite nexus to the Convention reason of (imputed) political opinion; and (c) its assessment of whether there was a “real chance” that he would suffer persecution for that Convention reason.
14 The applicant’s particulars proceed as follows:
“The [T]ribunal’s decision rests primarily upon its finding that it did ‘… not accept the applicant’s central claim, ie that he had a Tamil friend who lived with him and who was arrested as a terrorist and disappeared’ [Court Book 83]. It did so for the reasons, inter alia, that the applicant had ‘… presented no independent evidence to indicate that the friend existed, was detained by the authorities, was shown to have some connection with the LTTE or disappeared as a result of his arrest. He has produced no press reports, or reports from human rights groups about this matter’ [CB83].
In the circumstances of the case and the backdrop of the security forces’ sweeps and their impact on young Tamil males (including that canvassed in the reasons at CB77-80), the requirement for that level of independent corroboration/authentication of the disappearance of a single Tamil male in Colombo amounts to reviewable error. Such an approach to the determination of whether past events claimed by the applicant had occurred is contrary to the proper approach sanctioned by the authorities.
While the [T]ribunal canvassed other reasons why it did not accept the applicant’s claims, the error alleged above infected the [T]ribunal’s consideration and determination of the applicant’s case.”
15 (The reference to the reasons at CB 77 – 80 is a reference to the independent country information, summarised earlier, on the subjects “Association with the LTTE” and “Possible Sinhalese Association with the LTTE”.)
(a) The applicant’s argument
16 In their initial written contentions dated 2 April 2001, the applicant’s legal representatives elaborated these particulars as follows:
“10. The [T]ribunal’s summary of the applicant’s claims and the evidence given at the hearing appears at CB73-76. That summary included an extract [at CB73-74] of what the [T]ribunal described as ‘… what appears to be an accurate summary of the applicant’s claims to date’ by the delegate. The [T]ribunal, inter alia:
· did not ‘… accept the applicant’s central claim, ie that he had a Tamil friend who lived with him and who was arrested as a terrorist and disappeared.’. It noted that ‘… the applicant has presented no independent evidence to indicate that the friend existed, was detained by the authorities, was shown to have some connection with the LTTE or disappeared as a result of his arrest. He has produced no press reports, or reports from human rights groups about this matter’ [CB83];
· against this backdrop, found the ‘… applicant’s personal account of his claims … not convincing’ [CB83];
· found that, ‘Given that I do not accept that the applicant came to the attention of the authorities through his friend, I do not accept that he was detained and tortured by the authorities as he claimed’ [CB83-84];
· found the applicant’s actions after his detention ‘unconvincing’, including that given the existence of lawyers within his extended family he had not made representations to the relevant authorities;
· citing country information extracted at CB80-81, found it ‘… implausible that the security forces would impute an LTTE profile to a Sinhalese in the circumstances in which the applicant described’ [CB84];
· given that the [T]ribunal did not accept that the applicant’s Tamil friend disappeared in the circumstances which he described, it ‘… did not accept that the Tamil’s relatives or the LTTE subsequently threatened the applicant and his mother in the way that he described’ [CB84];
· did not consider that either the letter from the LTTE or the doctor ‘… helps his case. The letter from the doctor does not confirm that the applicant was tortured, nor does it indicate the circumstances of how the injuries were sustained. The letter said to be from the LTTE is completely unconvincing. It is written in English, and in a very polite tone…. When I consider these matters together with advice from DFAT about the extent of document fraud in Sri Lanka [at CB82] I am not prepared to place any weight on these documents; [CB84-85]. [There had been no attempt to have any Departmental assessment of the authenticity of the documents or to contact the doctor.];
· found that it was ‘… not satisfied that the applicant has ever been pursued by the authorities for reason of his imputed support of the LTTE, nor that he has been pursued by the LTTE for reason of his real or imputed anti-LTTE views … there is not a real chance that the applicant will be persecuted for either of these reasons, or for any other Convention reason’ [CB85].”
17 After referring to the course of High Court authority explaining the meaning of the Convention, the applicant’s representatives contend as follows:
“22. [It is submitted, for the reasons advanced below, that in all the circumstances of this case, the Tribunal’s reasons, read as a whole, are not such that it is clear that it could have had the ‘confidence’ in its findings as contemplated in Guo ….]
…
24. It is submitted that the [T]ribunal misinterpreted and misapplied the test of ‘well-founded fear’ of persecution in that its approach to the assessment of:
· whether or not past events (eg Tamil friend’s arrest/his own detention and torture/LTTE threats) claimed by the applicant had occurred;
· any likely imputation of political opinion to the applicant by the security forces/LTTE; and
· a ‘real chance’ of persecution;
was conducted in a manner not in accord with the authorities.
25. The [T]ribunal’s central platform upon which it rejected the applicant’s claims as to what had happened was its rejection of the ‘…applicant’s central claim…’ for the reason that independent evidence (press/human rights group reports) as to the existence of the Tamil friend and his arrest and disappearance had not been produced by the applicant [CB83]. It is submitted that the reasons, read as a whole, evidence an assessment by the [T]ribunal of ‘well-founded fear’ of persecution which was infected by this central platform.
26. The [T]ribunal, in effect, required independent attention and reporting to have been undertaken in the case of the claimed arrest and disappearance of a single young Tamil male in Colombo in circumstances in which such arrests and disappearances cannot be discounted and cannot, in all cases, be expected to have been detected by press/human rights groups. In particular, when the person concerned is not a leader of the LTTE or otherwise well-known it is less-likely that such a disappearance will be ‘reported’ in the sense required by the [T]ribunal as a pre-condition of its acceptance of such a claim.
27. It is respectfully submitted that this approach is error of the kind identified by Mansfield J in Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1706 (27 November 2000) at paragraphs 37-40 as being contrary to the direction given by the High Court in Chan and Guo. Similar considerations apply to the [T]ribunal’s decision to place no weight on the doctor’s letter and the LTTE letter proceeding upon the assumption (without any attempt at independent verification, but following general DFAT advice of the extent of document fraud in Sri Lanka) those letters were not genuine. [See also “W 148/00A” v Minister for Immigration and Multicultural Affairs [2001] FCA 679 for the proposition that if in making findings about past events relied upon by the applicant, the Tribunal grounds its decision upon a question of credibility, the Tribunal should not be taken to have made a finding on credibility by simply asserting that a claimed event is ‘implausible’ or ‘highly unusual’. (par 18, 67).]
28. The [T]ribunal’s application of an incorrect evidentiary test in its assessment of what had already happened, it is submitted, infected its assessment of the applicant’s case. The subsequent findings of the applicant’s claims as ‘unconvincing’ or ‘implausible’ are anchored in, and coloured by, this initial rejection.
29. In so doing, the [T]ribunal also misinterpreted and misapplied the law:
· as to the approach to imputation of political opinion; and
· the assessment of a ‘real chance’ of persecution if the applicant were returned to Sri Lanka.
30. In addition, in the context of its approach to the ‘applicant’s central claim’, the reasons (read as a whole) do not, it is submitted, evidence the relevant confidence by the [T]ribunal in its findings pertinent to its consideration which would render unnecessary the employment of the ‘What if I am wrong?’ approach to such assessment: Wu, Guo.
31. Accordingly, it is submitted that the [T]ribunal erred in law, within the meaning of s 476(1)(e), in that it misinterpreted and misapplied, the ‘well-founded fear’ test.”
18 The reference to Singh, above, is to the following (at [37] – [40]):
“The applicant pointed to some other matters which he submitted, tend to indicate that the Tribunal failed properly to consider whether the applicant has a well-founded fear of persecution for a Convention reason. It gave no weight to either the letter or the affidavit in part because they were photocopied documents. I understand the Tribunal’s reference to the ‘problems associated with photocopies’ as being a reference to its discussion on that topic in relation to the warrant, as set out in par 14 above. As noted, it indicated that it would give no weight to photocopied documents unless they were ‘unequivocally authenticated’. That was not a view adopted in relation to these particular documents, having regard to their contents and surrounding circumstances; it was a view expressed as applicable to all photocopied documents. It was one of the several reasons for giving no weight to the contents of the letter and the affidavit, and so must be taken to have operated upon the decision in that regard. Both the letter and the affidavit are significant because, if accepted, they each purported to contain first hand information. In the case of the letter, that was to verify the existence of the warrant and that the police were seeking to enforce it. In the case of the affidavit, that was to verify the arrest of the applicant in 1995 as well as that the police were still seeking the applicant. The finding of the Tribunal that Gill is not the surname of the applicant was itself based in part upon the fact that it placed no weight upon either the letter or the affidavit. Clearly, the decision to place no weight upon that material also was significant as it otherwise tended to confirm matters which the applicant claimed, and in respect of which the Tribunal rejected his claims. Those matters included that he had not been arrested in 1995 and that the police were still seeking him.
In Guo, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 574-576 explained the process by which the Tribunal came to a decision as to whether there is a real chance that a visa applicant will be persecuted for a Convention reason if that person were to return to the country of nationality. The Tribunal generally should make findings about past events, and if those past events include adverse treatment by the authorities the motivation of the authorities in penalising the visa applicant in relation to those past events. Those findings may then be used as the basis of the conclusion whether there is a real chance of future persecution. Their Honours added at 574-575:
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
…
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. 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.’
Later, in their reasons, their Honours added at 576:
‘It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not tha[t] an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.’
In this matter, the Tribunal has found that the applicant was not arrested and then mistreated in 1995, and then released. It has also found that the warrant is not genuine, and that the authorities have not in the recent past been seeking the applicant. Those findings are relevant to determining the chance that he may be arrested and mistreated if he were to return to India. It has entirely discounted the prospect that those past events have occurred, in determining whether there is a well-founded fear of persecution. And it has done so for the reason, inter alia, that evidence directed to those facts has not been unequivocally authenticated. In my judgment, the application of that evidentiary test for the giving of weight to the letter and to the affidavit is not one which the Tribunal could properly apply to the determination of whether past events have occurred as claimed by the applicant. To have applied that test involves the Tribunal having determined the degree of probability that those past events had not occurred on an incorrect basis, so as to have infected its determination of the chance that those events, or similar events, will occur in the future. I have accordingly reached the view, in this instance, that the Tribunal has failed to determine whether the applicant has a well-founded fear of persecution for a Convention reason in accordance with the direction of the High Court in Guo and Chan. I consider that its failure to do so amounts to an error of law, so as to enliven the ground of review under s 476(1)(e) of the Act.”
19 The reference to “W/148/00A”, above, is a reference to the following statement made by Lees J (at [18]) and Tamberlin and R D Nicholson JJ (at [67]):
20 In his dissenting judgment, Lee J, who proposed that the appeal be allowed, said (at [18]):
“As stated by Tamberlin and R D Nicholson JJ, where the Tribunal purports to ground its decision on a question of credibility the Tribunal will not have made a finding on credibility by simply asserting that a claimed event is ‘implausible’ or ‘highly unusual’. In that regard I repeat what I said in Thevendram v Minister for Immigration and Multicultural Affairs [2000] FCA 1910 at [26]-[40], in particular, the risk that decisions in these matters may be moulded to turn on so-called issues of credibility.”
21 The majority, Tamberlin and R D Nicholson JJ, said (at [67]):
“There is one aspect of the approach taken by the decision-maker in the present case which gives us some cause for concern. It is this. Where the question of credibility is determinative of a Tribunal decision, to simply assert that the Tribunal considers the applicant’s account to be ‘implausible’ or ‘highly unusual’ does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.”
(b) The Minister’s response to the applicant’s argument
22 The Minister submits that the applicant’s contentions are incorrect, either in law, or on the present facts, for the following reasons:
· The Tribunal is entitled to make findings of fact as to whether or not past events occurred – “[i]n 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” (see Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 (at 575)); but, in making findings as to past events, there is no particular threshold that must be satisfied before the Tribunal is entitled to disbelieve claims advanced by the applicant as to the occurrence of past events (see Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 293 – 294; Karnafi v Minister for Immigration and Multicultural Affairs [1999] FCA 191; Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565. In particular, there is no rule of law that the Tribunal may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any inconsistencies in that testimony, nor is there any rule of law that the Tribunal must hold a “positive state of disbelief” before making an adverse credibility assessment (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558 – 559).
· It may be accepted that, unless the Tribunal has no real doubt about the correctness of its findings, it must take into account the possibility that such findings are wrong when assessing whether or not there is a real chance of future persecution for a Convention reason (see Wu Shan Liang at 281 and 293; Guo at [574] – [575], [576] and [592]). However, this does not mean that the Tribunal must accept an applicant’s claims as to past events unless it is confident or “satisfied to a reasonably high degree” that the claims are wrong.
· In any event, there is no suggestion in the Tribunal’s reasons that it applied a “low threshold” for discrediting the applicant’s claims so as to misapply the test for determining whether there was a well-founded fear of persecution.
· On a fair reading of its reasons, the Tribunal did not impose a requirement that the applicant’s account had to be independently corroborated or authenticated, before it would be accepted by the Tribunal. Whilst the Tribunal noted the lack of independent evidence to support the applicant’s account, the rejection of that account was primarily for the reason that it found the applicant’s claims unconvincing.
· In any event, it was open to the Tribunal, having regard to its findings as to the credibility of the applicant’s account, to reject the applicant’s claims in the absence of any corroboration. In Warnakulasuriya v Minister for Immigration and Multicultural Affairs [1998] FCA 336, Finkelstein J rejected an argument that the Tribunal had failed properly to apply the “real chance” test by requiring the applicant to provide corroboration or supporting evidence of certain aspects of his case. His Honour said:
“The submission fails to recognise that one of the functions of the Tribunal is to make determinations of fact based on the evidence that is before it. …
This must admit of the possibility that the Tribunal will not accept the accuracy of certain ‘facts’ unless they are corroborated in some way. The acceptance or rejection of ‘facts’ is a matter for the Tribunal and no error of law will be demonstrated merely because the Tribunal has decided that certain evidence will not be accepted by it unless it is corroborated. Some ‘facts’ may be so implausible that they should not be accepted. An applicant may appear to lack credibility and in that circumstance the Tribunal may not be disposed to accept his or her evidence unless that evidence [is] corroborated by some independent source. If the Tribunal forms the view, for one reason or another, that evidence is unreliable and should be rejected unless corroborated that does not amount to an error of law. On the contrary, it suggests that the Tribunal is taking seriously its obligation to evaluate the evidence that is before it.”
· To the extent that the applicant’s contentions suggest that the Tribunal erred as to the level of independent corroboration or authentication required, this raises an issue going to the merits of the Tribunal’s reasoning process. Similarly, the question whether it was reasonable in the circumstances to expect the disappearance of the applicant’s Tamil friend to be reported in the press or by human rights groups is a matter going to the merits of the Tribunal’s decision.
· It was open to the Tribunal to place no weight on the medical certificate and the letter from the LTTE, without making its own enquiries in order to attempt to verify the contents of those documents.
· Contrary to the applicant’s contentions (pars 27 and 34), the Tribunal did not simply follow the DFAT advice in deciding to place no weight on the documents. The Tribunal’s conclusion in relation to the documents was based on an examination of their form and contents, as well as by reference to the DFAT advice concerning the prevalence of document fraud.
· While the Tribunal has power to make its own inquiries, it is now accepted that the Tribunal is not ordinarily under any duty to exercise this power (see Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368 at [13] – [14]; Minister for Immigration and Multicultural Affairs v Anthonypillai 106 FCR 426 at [86]; Pollocks v Minister for Immigration and Multicultural Affairs [2000] FCA 1514 at [21]; Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 at [18] – [22]; Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 at [32]). In Antonio v Minister for Immigration and Multicultural Affairs ([1999] FCA 21 at [21]), O’Loughlin J held that the Tribunal was not obliged to make independent inquiries to check the authenticity of documents or to verify their contents, in circumstances where it concluded that the documents on their face lacked any semblance of authenticity, where the applicants had advanced confusing and contradictory stories, and where the Tribunal had concluded that it could not believe the applicant’s claims. This approach was confirmed by the Full Court on appeal (see Antonio v Minister for Immigration and Multicultural Affairs [1999] FCA 1210 at [29]).
· The decision of Mansfield J in Rana Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1706 is distinguishable. In that case, the Tribunal had decided not to give any weight to particular documents (in the absence of unequivocal authentication) simply on the basis that they were photocopies. The legal error identified by Mansfield J arose because this was “not a view adopted in relation to [the] particular documents, having regard to their contents and surrounding circumstances; it was a view expressed as applicable to all photocopied documents”. It was this view which constituted the “evidentiary test” or burden that, his Honour held, had been wrongly imposed on the application.
· In the present case, however, the Tribunal decided not to place any weight on the medical certificate and the letter from the LTTE, after consideration of their form and contents, and in the context of its general adverse findings as to the credibility of the applicant’s account. The weight to be placed on these documents was for the Tribunal to determine on the merits of the particular case, including having regard to any independent country information about the extent of document fraud in Sri Lanka (see Sukhbir Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1705 at [31]).
· In any event, the Tribunal’s ultimate findings were made on the basis of its general conclusions as to the credibility of the applicant’s claims, and did not depend on its views as to the genuineness and reliability of the documents.
· The applicant’s contentions suggest (at par 28) that the Tribunal first made findings as to the occurrence of past events, and then made “subsequent findings” that the applicant’s claims were unconvincing or implausible which were coloured by the “initial rejection” of the applicant’s account. The attempt to analyse the Tribunal’s reasons in such a sequential manner is not legitimate, particularly in the light of the Full Court’s recent observations in Anthonypillai (at [84] – [85]) as to the varying approaches which may be adopted by a decision-maker in structuring his or her statement of reasons. The Tribunal’s reasons should be read as a whole; its findings as to past events were as much affected by its conclusions as to the credibility of the applicant’s claims, as the other way around.
· The rejection of the applicant’s account of past events concerning his association with a Tamil friend who was arrested and disappeared made it unnecessary for the Tribunal to consider whether any political opinion would be imputed to the applicant as a result of such events. There was no failure by the Tribunal to consider whether there was a real chance of persecution for reason of imputed political opinion.
· Contrary to the applicant’s contentions (par 22), the Tribunal’s reasons do not reveal any lack of confidence in its findings such as to require it expressly to take into account the possibility that such findings were wrong in assessing the chance of future persecution (see Guo at [574] – [575], [576] and [592]).
· The issue is not whether it is clear from the Tribunal’s reasons that it could have had no real doubt as to its findings, nor whether the Court considers that the Tribunal should have had such a real doubt. The issue is whether any real doubt has been expressed by the Tribunal, or can be inferred on a fair reading of the Tribunal’s reasons as a whole. It is not permissible to impute to the Tribunal a lack of confidence in its findings where there is no basis for that conclusion in the Tribunal’s reasons (see Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220). As Kenny J observed in Rajalingam (at [147]):
“… nothing in the joint judgments in Guo or Wu Shan Liang requires the RRT to use any particular language in expressing its satisfaction with regard to an applicant’s past experience. Nothing in the joint judgments requires the Tribunal to say expressly that it entertained no real doubt as to its findings or else to provide reasons that logically compel its factual conclusions. Unless those are requirements (and they are not), a statement of reasons cannot be construed as implying that the RRT entertained a real doubt about the facts as it has found them when no such doubt is admitted.”
· The following comments by Katz J in “A” v Minister for Immigration and Multicultural Affairs [1998] FCA 1738 (at 13) are pertinent here:
“If the High Court considered the form in which those three findings were expressed to be sufficiently strong to excuse the Tribunal from considering the possibility that its findings were inaccurate, three things are apparent: first, that that Court does not require the Tribunal to have used the language of an absence of any real doubt as to the correctness of a finding (or equivalent language) before concluding that it had no such doubt; secondly, that that Court considers that the strength of the Tribunal’s finding on one factual issue may excuse it from any obligation to consider whether there is possible inaccuracy, not only in that finding, but also in its findings on other factual issues; and, thirdly, that this Court should be particularly cautious in inferring from the language used by the Tribunal in its statement of findings and reasons that the Tribunal either had some real doubt that its findings were correct or took the view that the probability of error in its findings was not insignificant.”
(c) Conclusions on Ground 1
23 I cannot accept the applicant’s argument, essentially for the reasons advanced in the Minister’s submissions. Those reasons are fully supported by the authorities, in the High Court and Full Federal Court, mentioned in the Minister’s submissions, which of course bind me.
24 I need add only two observations.
25 Earlier in my reasons, in summarising the Tribunal’s decision, I mentioned that the Tribunal explained the course of High Court authority interpreting the meaning of the Convention.
26 Given the applicant’s contention that the Tribunal “incorrectly interpreted” the applicable law, reference should be made to the Tribunal’s explanation of the Convention’s definition of “refugee”, which explanation was as follows:
“In Guo’s case, the Court observed that the definition [of ‘refugee’] contains four key elements. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Not every threat of harm or interference with a person’s rights for a Convention reason constitutes ‘being persecuted’. In Chan’s case Mason CJ referred to persecution as requiring ‘some serious punishment or penalty or some significant detriment or disadvantage’. In the same case, McHugh J said that the notion of persecution involves selective harassment, and that in appropriate cases it may include single acts of oppression, serious violations of human rights, and measures ‘in disregard’ of human dignity. In Applicant A’s case, his Honour stated that whether or not conduct constitutes persecution does not depend on the nature of the conduct but on whether it discriminates against a person for one of the Convention reasons. Persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. However, the persecution feared need not be solely attributable to a Convention reason. It may be enough if face, religion, nationality, membership of a social group, or political opinion, is but one of several reasons for the persecution feared.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality. Whenever the protection of the applicant’s country is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee.
Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.”
27 There was, in my view, no error in that explanation.
28 The question remains whether an error of law occurred in the application of this established meaning of the definition. In my view, upon analysis (as the Minister’s submissions show) the applicant here is really seeking to bring an impermissible (in terms of the scope of judicial review) challenge to the Tribunal’s conclusions on the facts, and on the merits.
THE SECOND GROUND OF THE APPLICANT’S CLAIM FOR JUDICIAL REVIEW
29 The applicant’s second ground is also based upon s 476(1)(e). The particulars given are as follows:
“Particulars
The Tribunal incorrectly interpreted, and applied, the applicable law in that it misconceived the scope of its duty to review the delegate’s decision in accordance with the applicable statutory regime (ss 47/65/414 of the Act) and failed to perform that duty.
The applicant otherwise refers to and repeats the particulars sub-joined to [Ground 1] above.
In addition the [T]ribunal failed to perform its duty as alleged in that, in dealing with the letters from the doctor and the LTTE, it relied on the general DFAT advice concerning document fraud in Sri Lanka without making any attempt to determine whether the documents in question were in fact so affected [CB84-5].”
(a) The applicant’s argument
30 In his initial contentions, the applicant advanced the following arguments here:
“32. The [T]ribunal was required by the scheme of the Act (ss 47/65/414) to consider and determine the application for review according to law. The issue of whether or not:
· The Tamil friend had existed and was arrested and disappeared as claimed by the applicant; and
· In those circumstances:
- the applicant had been detained and tortured; and
- the security forces/LTTE had imputed to him the political opinion which the applicant claimed;
was critical to any consideration and determination by the [T]ribunal of the applicant’s case.
33. The matters submitted above with regard to [G]round [1] are referred to and repeated. The [T]ribunal merely paid lip service to its task under the Act. In those circumstances, it is submitted that the [T]ribunal failed to consider/review the applicant’s case in accordance with the statutory scheme: Anthonypillai.
34. Further, the letter from the doctor and the letter from the LTTE were critical links in the chain of events claimed by the applicant and, if accepted, would have gone to support the objective fear required under an assessment of ‘real chance’ of persecution. The doctor’s letter would also have assisted in the consideration of the issue of the availability of, and willingness of the applicant to seek, protection from the Sri Lankan authorities. The [T]ribunal’s rejection of these letters (‘not prepared to place any weight’) on the basis of the extent of document fraud in Sri Lanka advised by DFAT, without any independent assessment of the authenticity of those documents, is such as to amount to a failure to review the applicant’s case in accordance with the statutory scheme. The [T]ribunal appears simply to have proceeded upon the same footing as the delegate [paras 3.2.5/3.2.6 at CB53].
35. Further, while s 427(1)(d) of the Act is not by its terms mandatory, it is submitted that the [T]ribunal misinterpreted, and misapplied, the statutory scheme which applied to its consideration of the applicant’s case in not so requiring such investigation of the letters. Consideration of the applicant’s case, in accordance with the statutory scheme, required that the [T]ribunal utilise its power under s 427(1)(d) of the Act prior to deciding to give no weight to the letters [of Anthonypillai at paras 86-90]. This is so even in this case where the applicant (appearing without legal assistance) did not request such investigations.
36. In all the circumstances of the case, the [T]ribunal failed to review/consider the applicant’s case in the sense identified by the Full Court in Anthonypillai. Such failure, it is submitted, amounts to reviewable error:
· Under s 476(1)(e), as an error of law arising from the [T]ribunal’s interpretation, and application, of the scope of the statutory scheme which applied to its consideration and determination of the applicant’s case; or
· Alternatively, under s 476(1)(c), as a constructive failure to exercise its jurisdiction such as to amount to a decision which was not authorised by the Act or the regulations; or
· Alternatively, under ss 476(1)(a), as a failure to observe the procedures required by the Act or the regulations to be observed in connection with the making of the decision.”
31 By his supplementary contentions, the applicant put the following additional arguments:
“1. These supplementary contentions are made pursuant to the order of the Court on 8 June 2001, which in terms afforded an opportunity to make such contentions in the light of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf & Minister for Immigration and Multicultural Affairs v Israelian [2001] HCA 30 (31 May 2001) (‘Yusuf/Israelian’).
2. The applicant contends that the decision in Yusuf/Israelian [paras 10, 40-43 & 78-83] reinforces the applicant’s contentions filed herein and, in particular, the contentions made by reference to the decision of the Full Court of the Federal Court in Anthonypillai [2001] FCA 274 (21 March 2001).
3. With respect to grounds 2 [s 476(1)(e) of the Migration Act 1958] and 3 [s 476(1)(c)] in the applicant’s Amended Application filed herein, it is submitted that the [T]ribunal erred in law or failed to exercise its jurisdiction within the scope of the matters identified, in particular, by McHugh, Gummow and Hayne JJ (at paras 78-83).
4. The [T]ribunal’s approach amounted to it identifying the wrong issue or asking itself the wrong question insofar as its approach required independent corroboration of the ‘central issue’ in the terms identified in the Amended Application and the contentions. The [T]ribunal’s application of an incorrect evidentiary test (with respect to the applicant’s claims of past events) it is contended renders the [T]ribunal’s decision reviewable for failure to consider or review the applicant’s case in accordance with the statutory scheme.
5. In like terms, the [T]ribunal, inter alia, took into account irrelevant material (eg that the doctor’s letter and the LTTE letter were in English/that the LTTE letter was ‘polite’/the doctor’s letter did not mention torture) in deciding to place no weight on those documents, thereby ignoring relevant material in the context of its having dealt with the ‘central issue’ in the terms described above.
6. The [T]ribunal, in failing to make the inquiries under s 427(1)(d) of the Act (as identified in the Amended Application and the contentions) failed to properly carry-out its statutory role of reviewing the delegate’s decision attracting review pursuant to ss 476(1)(c) or (e) of the Act. In terms, it proceeded in the incorrect manner in which the delegate approached the task.”
32 (By s 427(1)(d) of the Act, it is provided that, for the purposes of the review of a decision, the Tribunal may require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.)
(b) The Minister’s response
33 The Minister’s response is as follows:
q The Full Court in Anthonypillai held that a failure to give “proper, genuine and realistic consideration” to an application does not of itself constitute a reviewable error under Part 8 of the Migration Act. While the Court suggested that there might be some cases in which the Tribunal completely fails to review or to consider the relevant visa application, the Court emphasised that such a failure would only constitute a reviewable error in the Federal Court if it fell within a ground of review set out in s 476(1) of the Act (and was not excluded by s 476(2) or (3)). The Court gave as examples situations where the Tribunal mistakenly addressed the wrong question or failed to engage in de novo review, each of which might amount to an error of law within s 476(1)(e). The Court also mentioned the extreme situation of the Tribunal merely paying “lip service” to its task, such as by determining an application without reading the material filed before it, but described the question whether this would attract a ground of review under Part 8 as “more problematic”.
q It is clear that the present case does not approach any of the examples discussed by the Full Court in its judgment in Anthonypillai. There is no suggestion that the Tribunal did not consider all the evidence and material presented to it. It cannot be said that the Tribunal applied an incorrect test or addressed the wrong question so as to attract s 476(1)(e). Moreover, there is nothing in Yusuf which would assist the applicant here.
q In so far as the applicant contends that the Tribunal was obliged to investigate the validity or genuineness of the medical certificate and the letter from the LTTE, the Minister relies on his submissions in response to Ground 1.
(c) Conclusions on Ground 2
34 Again, I accept the respondent’s argument here, essentially for the reasons advanced in the Minister’s submission.
35 As will have been appreciated, much of the applicant’s argument on this Ground overlapped with his argument on the first Ground, which I have rejected.
36 In so far as the applicant now seeks to rely upon Yusuf, for the reasons I have given in Ragunatham v Minister for Immigration and Multicultural Affairs [2001] FCA 1142 at [58] – [60], I am of the view that the majority did not extend the scope of judicial review available in this Court under the Act.
THE THIRD GROUND OF THE APPLICANT’S CLAIM FOR JUDICIAL REVIEW
37 Particulars of this Ground are:
“Particulars
There was a constructive failure by the [T]ribunal to exercise its jurisdiction in making the decision in that it failed to review the delegate’s decision in accordance with the applicable statutory regime (ss 47/65/414 of the Act).
The applicant otherwise refers to and repeats the particulars sub-joined to [Ground 2] above.”
38 In support of this Ground, the applicant relies upon his arguments in support of Ground 2.
39 For the reasons previously given and in Ragunatham at [58] – [60], I cannot accept the argument.
40 Finally, counsel for the applicant drew attention in oral argument to the following exchange between the applicant and the Tribunal (recorded at transcript pp 44 – 45 at the conclusion of the oral hearing):
“MR ABEYSINGHE: But – I have to tell one thing, in my case, right? You can think a person like me, right, a person like me, because I have got a – I mean, I was a pretty rich person, I mean right, middle-class – high middle-class person in Sri Lanka, and the second thing, my sister was a professional and I was a professional and if I wanted to – that is the main point I can show you – if I wanted to leave the country, I mean, migrate to another country at that stage, at that stage I did not have any idea to leave, I mean, migrate to another country. If I wanted to do that, the first place I would apply is England, because my sister is living there. My relatives there. But if – I didn’t have that type of idea, that is why I, you know, came to agent and came here. So you can understand my situation, I did – genuinely I had a problem. That is what I wanted to explain.
MS JENSEN: All right. What I will do is I will take away what you have said and I will consider all of that. I will consider the country information that we have talked about here today. Now, what I will be doing is writing a decision and that decision normally would take about six weeks or so before it would be handed down and you will be sent a letter to notify you that it will be handed down.
MR ABEYSINGHE: Can’t give me now what is decision.
MS JENSEN: I have to go away and think about, I am sorry. It is not that easy because I have to give my reasons and I have to think it over.
MR ABEYSINGHE: Yes, I know, I went through a lot of problems. I like to get a decision. You can tell if I am – I mean, if you are not satisfied, if you don’t trust me, I like if you can tell me now, if you can.
MS JENSEN: Look, I really haven’t decided and I have to be very clear. When I write my decisions I have to be clear about what decision I will make and why I am making it, so I am sorry, but we have to give – well, basically it is a written decision that I have to give. But I expect it wouldn’t be much longer than six weeks because we do try to ---
MR ABEYSINGHE: I have to suffer another six weeks.
MS JENSEN: You have to suffer another six weeks, I am afraid.
MY ABEYSINGHE: Okay.
MS JENSEN: Well, thank you very much.”
41 As I followed counsel’s argument, the Court should infer from this exchange that the Tribunal was, indeed, satisfied that the applicant had made out his case. The basis for the inference suggested is the absence of any statement from the Tribunal then that it was not so satisfied.
42 I cannot accept the contention. The Tribunal made it clear that it wished to reserve its decision. There was no obligation upon the Tribunal to give an instant decision or even express a tentative view. The fact that the Tribunal proceeded courteously cannot be used to displace its formal decision and reasons.
ORDERS
43 Accordingly, the application is dismissed, with costs.
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I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. |
Associate:
Dated: 29 August 2001
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Counsel for the Applicant: |
Mr R Appudurai |
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Solicitor for the Applicant: |
Ambi Associates |
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Counsel for the Respondent: |
Mr C Horan |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
6 July 2001 |
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Date of Judgment: |
29 August 2001 |
