FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural Affairs v Perera [2001] FCA 1212

MIGRATION – appeal from the decision of primary judge – review of decision by Tribunal to refuse application for protection visa – whether Tribunal failed to rationally assess evidence before it – whether such failure in reasoning constitutes reviewable error of law – whether the reasoning of the Tribunal amounted to a “non-sequitur”

Migration Act 1958 (Cth) s476

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

Collector of Customs v Pozzolanic (1993) 43 FCR 280 referred to

Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 followed

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

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 followed

Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 cited

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 not followed

Brakni v Minister for Immigration and Multicultural Affairs [2001] FCA 48 cited

Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 cited

Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] 106 FCR 426 cited

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v PATHIRAGE DON MAHINDA PERERA

W 60 OF 2001

HILL, O’LOUGHLIN AND CARR JJ

ADELAIDE (HEARD IN PERTH)

29 AUGUST 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The decision of the learned primary judge be set aside and in lieu thereof the respondent’s application to the Court for an order of review be dismissed with costs.

3.                  The respondent pay the appellant’s costs of this appeal.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT

1                     The respondent is a citizen of Sri Lanka.  He was born on 4 May 1962 and is now aged thirty-nine.  He arrived in Perth on 17 March 1997, having obtained entry to this country on a “visitors visa”.  His wife and two young daughters had earlier entered Australia in December 1995 on a like visa.  The respondent applied for a protection visa for himself and his family shortly after his arrival but the application was unsuccessful.  On 28 November 1997, a delegate of the appellant, the Minister for Immigration and Multicultural Affairs (“the Minister”), refused the application and, on 18 December, the respondent sought a review of that decision by the Refugee Review Tribunal (“the Tribunal”).  As that application was also unsuccessful, the respondent next applied, under s 476 of the Migration Act 1958 (Cth) (“the Act”), to this Court for a review of the decision that had been made by the Tribunal.  On this occasion, he was successful.  A judge of this Court ordered that the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal for reconsideration according to the law.  The Court further ordered that the Minister pay the costs of the application.

2                     The Minister now appeals to this Court against the decision of the judge in the Court below.

3                     The respondent claimed that he should be accepted in Australia as a refugee because, so he argued, he was a person who, owing to a well-founded fear of being persecuted for reasons of his political opinions, was outside the country of his nationality and was unable, or owing to such fear, was unwilling to avail himself of the protection of that country.

4                     In his submissions to the Tribunal the respondent said that he became involved in politics after he left school.  He said that he became a strong supporter of the UNP party – the political party that was then in power in Sri Lanka; he listed his activities as distributing pamphlets, pasting posters on walls, hanging flags, recruiting people to join the party and engaging in fund raising activities.  Later, he became an Organiser and, later again, a Chief Organiser; his duties were to organise meetings and rallies in his area.  At times, he had also acted as a bodyguard for Mr Lalith Athulathmudali, a member of Parliament and a leader of the party, who the respondent described as a “very active” campaigner in our area …”  The respondent followed Mr Athulathmudali when he split from the UNP and formed the Democratic United National Front party (“the DUNF”).  The respondent claimed that because of his political involvement, he became well known in his area and was harassed and threatened by the opposition, the Sri Lankan Freedom Party (“the SLFP”).  He also claimed that his home had been vandalised and he attributed that to members of the SLFP.

5                     In early 1993 Mr Athulathmudali was assassinated and the leadership of the party was assumed by his widow, Mrs Sitimari Athulathmudali.  According to the respondent, there then followed an increase in the threats to his person, the acts of vandalism increased markedly and he “began to fear for the safety of my family and myself”.  The respondent said that because the threats increased, he left his home and took his family to an estate that was owned by his father.  This was the start of his departure from politics, although, for a while, he continued to give his support to Mrs Athulathmudali.  He said that he and his family remained in hiding for some time before ultimately returning to the family home.  He said that upon his return, he found that his home had been broken into, looted and vandalised – as to this, the Tribunal found that there was no evidence to establish that these events were motivated by either his actual or imputed political opinion.

6                     General elections were held in Sri Lanka in August 1994.  According to the respondent, the DUNF party was in disarray because of the death of Mr Athulathmudali but he, nevertheless, remained with the party out of loyalty “and because of the anger and horror” that he felt after the death of Mr Athulathmudali.  He said further, however, that prior to the elections his party went through a “transformation” in that it broke into two camps.  The members of one camp gave their allegiance to the Peoples’ Alliance Party (“the PA”) who, according to the respondent, were the former SLFP whilst the other group returned to the UNP.  The first group became known by the acronym “NDUNLF” which stood for the New Democratic United National Lalith Front.  As to this division, the respondent said that:

“… unfortunately it was Sirimani Athulathmudali’s camp who sided with the PA and this really upset me, as I was always a UNP supporter and despite my loyalty to Lalith, I could not support the PA …”

7                     The respondent had earlier said in his written submissions, that although he remained a member of Mrs Athulathmudali’s party, he “kept a low profile” as he feared for his and his family’s safety.  In his oral evidence before the Tribunal, he reaffirmed that statement, commenting that he remained silent in the 1994 elections.  Nevertheless, he claimed that he continued to receive threats, his house was stoned, PA posters were placed on his walls and he was assaulted on three occasions by PA members.  It was in this climate that the respondent said that he left Sir Lanka in December 1994 for Japan where he remained for about two years.  It was whilst he was in Japan that his wife and children travelled to Australia.

8                     The last claim that was made by the respondent was that in February 1997, shortly after his return to Sri Lanka from Japan, harassment from the PA supporters recommenced.  It was then that he made his decision to come to Australia.

9                     The Tribunal accepted that the respondent had been a strong supporter of the UNP and of its one-time leader, his mentor, Mr Athulathmudali.  It accepted that he followed Mr Athulathmudali in 1991 when Mr Athulathmudali founded the new party, the DUNF.  However, the Tribunal also accepted the respondent’s evidence that, with the assassination of Mr Athulathmudali, he ceased political activity; it rejected any statements to the effect that the respondent was a supporter of the UNP after 1991.

10                  The 1994 elections resulted in a coalition of the PA and the NDUNLF (the successor to the DUNF).  That coalition formed government and Mrs Athulathmudali became a Minister in the PA led government.  The respondent had not approved of Mrs Athulathmudali giving her support to the PA but, as the respondent acknowledged, and as the Tribunal found, he kept silent during the 1994 election campaign.  The Tribunal further found that, after the 1994 election, the respondent would not have been seen as a supporter of either the UNP, the DUNF or the NDUNLF, even though he had supported the Mrs Athulathmudali during that campaign.  The Tribunal was prepared to accept that, initially, the respondent may well have suffered at the hands of PA supporters during the 1994 campaign but the Tribunal was satisfied that a change quickly came about.  The respondent was seen to be a supporter of the NDUNLF, the NDUNLF had joined forces to become part of the current PA led government and the respondent had kept silent during the 1994 election.  The combination of these factors led the Tribunal to conclude that there was thereafter no real chance that the respondent would be persecuted by the PA supporters because of his former support for the PA’s new political ally.  The Tribunal described the respondent as one who had not played a “non-silent role in Sri Lankan politics for over six years”.  Even though the Tribunal was prepared to accept that the respondent had experienced harassment and threats at the hands of the predecessors of the PA because of his early association with the UNP, the Tribunal concluded that such conduct would have ceased when Mrs Athulathmudali became a Minister; it reasoned that it was inherently unlikely that the respondent, “who had supported her, albeit quietly, would have been harassed by PA supporters in 1996-1997”.  The Tribunal rejected the respondent’s claims that he had been threatened and harassed after 1994; it did so because he had ceased his political activity and Mrs Athulathmudali’s party, to which he had given some support, was now in coalition with the PA.

11                  In the Court below, the respondent argued that the Tribunal had fallen into error when it concluded that there was “no evidence before it” that the breaking into the respondent’s home and the looting and vandalism of it had been politically motivated.  The learned primary judge correctly rejected that submission, [at 12] saying:

“But the ground for review of error of law provided by s 476(1)(e) would only arise if it could be said that the Tribunal incorrectly applied to the facts the law relating to a well-founded fear of persecution, and that such error was involved in the ultimate decision of the Tribunal that it was not satisfied that the applicant had a well-founded fear of persecution.  That is to say, it must be seen that the decision of the Tribunal was affected by that error.  The question whether the damage caused to the applicant’s residence in 1993, whilst the applicant was absent, was inspired by the perceived political opinions of the applicant, was a minor part of the case which the applicant put before the Tribunal.  Any view formed by the Tribunal on that question was not material to the ultimate determination made by the Tribunal.”

12                  In the Court below, the learned primary judge stated in par 16 of his reasons, that when the split occurred in the DUNF, the respondent “opposed the shift in political allegiance” that had been undertaken by Mrs Athulathmudali.  It was not correct, in our opinion, for his Honour to say that the respondent “opposed” the shift in allegiance.  That does not accord with the respondent’s evidence or the Tribunal’s findings.  In par 13 of his written submissions, the respondent had said that the decision of Mrs Athulathmudali had “really upset” him.  He also added that he could not support the PA but he did not say that he opposed the allegiance.  On the contrary, he conceded in par 10 of his statement that he “kept a low profile” during the elections.  The Tribunal accepted those sections of the respondent’s evidence.

13                  The learned primary judge addressed that section of the Tribunal’s reasons in which it had stated that it was prepared to give the respondent “the benefit of the doubt” in respect of the claims of assault and harassment that he and his family had suffered at the hands of the PA supporters during the 1994 election campaign.  His Honour then said at [10]:

“If the Tribunal accepted that these events occurred as claimed by the applicant, it could not be said that the applicant was seen by PA supporters to be a supporter of the NDUNLF, or of the PA, in August 1994.  The finding by the Tribunal that ‘there was no real chance that …[the respondent] would now be persecuted by the PA supporters for supporting one of their coalition partners [or at least a predecessor of it] is not consistent with the facts accepted or found by the Tribunal.”

14                  With due respect to his Honour, his conclusion has not made allowance for the temporal sequence in which the Tribunal made its findings.  What the Tribunal concluded is to be found in the following passage:

“The applicant may well have suffered at the hands of the PA supporters during the 1994 campaign, but later the DUNF (or more accurately its successor) he supported became part of the current PA led government.” (emphasis added)

The presence of the words “but later” shows that the Tribunal, as part of a fact-finding exercise, concluded that the conduct of which the respondent complained occurred during the 1994 election campaign, but ceased after the PA coalition gained government.  So expressed, it would not be correct to label, as inconsistent, the Tribunal’s findings that there was no real chance that the respondent would be persecuted by PA supporters.

15                  As part of its findings, the Tribunal said that it:

“… rejects his claims to have been threatened and harassed after 1994, for the reasons given regarding his cessation of political activity and Mr Athulathmudali’s widow’s party, to which he gave some support, siding with the PA.”

That rather inelegantly expressed passage in the Tribunal’s reasons was discussed by the learned primary judge.  His Honour said at [12]:

“In respect of the applicant’s claims as to later events, the Tribunal made the further finding that it rejected the applicant’s claims to have been threatened and harassed ‘after 1994’ (by which the Tribunal means February 1997) and based that finding on the fact that the applicant had ceased political activity and had given support to Mrs Athulathmudali’s party ‘siding with the PA’.  The latter ‘fact’ relied upon was not a fact found by the Tribunal.”

However, what the Tribunal says in the passage criticised by his Honour was clearly intended to mean that the appellant had supported Mrs Athulathmudali’s party, which party had sided with the PA and not, as his Honour appears to have thought, that the appellant supported that party siding with the PA which the appellant clearly did not.  We have some difficulty in understanding what it was that concerned his Honour.  The passage in the Tribunal’s reasons to which he referred appeared as part of a par 4, being one of five paragraphs that were preceded by the words:

“The Tribunal also finds that:”

16                  It would appear, with respect, that the Tribunal had made express findings to the effect that threats to and assaults on the respondent had ceased after the 1994 elections.  That meant, as his Honour rightly pointed out, that the Tribunal rejected the respondent’s evidence about the alleged harassment and threats in 1997, immediately before the respondent came to Australia.  It also meant that the Tribunal had advanced two reasons for coming to its conclusion that the respondent was no longer at risk of persecutory conduct.  In the first place, it was satisfied that the respondent has ceased political activity; in the second place, the Tribunal relied on the fact that the respondent had given “some support” to Mrs Athulathmudali’s party and her party had, since the 1994 elections, sided with the PA.  We are unable to share the learned primary judge’s concerns that the conclusion of the Tribunal was “inconsistent with relevant findings of fact” and that it “represented an illogical conclusion”.

17                  After noting that the task of the Tribunal was to address whether, on the facts found or accepted, there was a real chance that the respondent may suffer persecution for a Convention reason, his Honour further noted that the Tribunal had accepted that the actions of PA supporters had involved harassment, assault and intimidatory threats to the respondent and his family.  That conduct, which continued up to the 1994 election campaign amounted to persecution by reason of the respondent’s perceived political opinion.  His Honour then observed that the “remaining question” was whether “there was any real prospect that such conduct might occur again if the [respondent] were returned to Sri Lanka”.  In posing that question, his Honour did not then mention the further finding of the Tribunal that it rejected the respondent’s evidence that he had been the victim of further violence after the 1994 election.  Instead his Honour said at [23]:

“The Tribunal restricted its consideration of that question to saying that it was satisfied that there was no real chance of such an occurrence because the [respondent] was perceived by PA supporters to be a supporter of the PA coalition through his support for Mrs Athulathmudali’s NDUNLF party.”

His Honour continued:

“That involved a non sequitur and the reasoning of the Tribunal did not meet the requirements of the Act that the decision be made, and shown to be made, by a rational process … The Tribunal failed to carry out the review process required of it by the Act and ground for review of the decision purportedly made is established under s 476(1)(b), (c), (e) and (g) of the Act …”  (reference to authorities has been omitted)

18                  There are, in our opinion, two misunderstandings in his Honour’s summary of the Tribunal’s consideration of the relevant question.  His Honour claimed that the only reason why the Tribunal concluded that there was no real chance of future persecutory conduct was because the respondent “was perceived by PA supporters to be a supporter of the PA coalition” through his support for Mrs Athulathmudali’s party.  The respondent was never a  supporter of the PA and there was no evidence of how any PA supporter may have perceived the respondent.  All that might be said is that his support for Mrs Athulathmudali may have erroneously led some PA supporters to think of him as a PA supporter.  The second error is, however, of greater significance; the Tribunal’s finding that the respondent had ceased to engage in political activity after the 1994 election was, arguably, the finding of greatest significance.  It was one of the two lynchpins upon which the Tribunal based its finding that there was no real chance that the respondent would face persecutory conduct should he return to Sir Lanka.  With the greatest respect to his Honour, we have come to the conclusion that he was overly critical of the Tribunal’s reasoning process and its loose language.  After scrutinising the Tribunal’s reasons, we have concluded that his Honour’s intervention was not warranted.

19                  The Minister’s grounds of appeal referred to six separate issues but, having regard to the manner in which the appeal was argued, two of them became dominant.  In the first place, assuming always, contrary to the views that we have expressed, that the criticisms of the learned trial judge about the reasoning processes of the Tribunal were accurate, it was submitted that his Honour erred in law in deciding that any “non sequitur” or lack of “rational process” that might have been contained in the reasons of the Tribunal constituted grounds of review under subs 476(1) of the Act.  The second principal issue (and it will be convenient to deal with it first) was to the effect that the learned primary judge erred in law in failing to construe the reasons of the Tribunal consistently with the approach set out in the reasons of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)  185 CLR 259 (“Wu Shan Liang”).  In that case, Brennan CJ and Toohey McHugh and Gummow JJ in their joint judgment spoke of a delegate who had started and finished with the correct test but who had used some phraseology in between which provided the basis for a conclusion that she had slipped from an assessment of a real chance to an assessment that was based on the balance of probabilities.  Their Honours said at 271-272:

“When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best example of which is Collector of Customs v Pozzolanic (1993) 43 FCR 280.  In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review.  It was said that a Court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker.  The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.

The propositions are well settled.  They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (see McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616).  In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”

20                  Kirby J, the remaining member of the Court in Wu Shan Liang was of a similar view.  Referring to the remarks of the Full Court in Collector of Customs v Pozzolanic, he said that the reasons under challenge must be read as a whole and considered fairly:

“It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.”  (291)

21                  In Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559, the High Court reiterated these warnings.

22                  The question whether “illogicality” can constitute an error of law was considered by a Full Court of this Court (Black CJ and von Doussa and Carr JJ) in Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 at 420 ff (“Epeabaka”).  In our view the remarks of the Full Court in Epeabaka would apply to “non sequitur” and “lack of rational process” with equal force. At 422 the Court said:

“We agree with the learned primary judge that a failure rationally to consider probative evidence is not the same kind of error as making a simple mistake of fact, but, in our view, on the current state of authorities in Australia, that difference does not of itself allow for the elevation of such a failure to a mistake of law.”

23                  In Epeabaka, the learned primary judge had taken the view that the Tribunal’s decision could be set aside if its adoption of an illogical and self contradictory approach was an error of law in respect of which relief could be obtained under the Act; he had proceeded to hold that there had been such an error of law as there had been, in his opinion, a failure by the Tribunal to rationally consider the probative evidence that was before it.  In rejecting this approach, the Full Court referred to the remarks of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, relying on them in preference to the views that had been earlier expressed by Deane J in Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62.  In Epeabaka, the Full Court said at 421:

“The present point arises for discussion, of course, in the context of judicial review, and the general principles that limit the scope of judicial review need to be borne firmly in mind.  In relation to findings of fact and related questions of illogicality in reasoning, the judgment of Mason CJ in Bond at 355-360 provides authoritative guidance.  After reviewing the authorities, Mason CJ (with whom on this point Brennan, Toohey and Gaudron JJ agreed) said (at 356):

‘Thus, at common law, according to Australian authorities, want of logic is not synonymous with error of law.  So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.’

24                  Since the decision in Epeabaka, there have been several decision of this Court to the effect that illogical findings of fact or reasoning will not, without more, ground judicial review under s 476 of the Act:  see, for example, Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 in which Hill J noted that in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] 106 FCR 426 at par 42, another Full Court of this Court, in following Epeabaka, proceeded on the basis that it was clearly established that factual mistake or want of logic is not a ground for judicial review under the Act; see also Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 where a Full Court of this Court said at par [34]:

“Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law.  A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning.”

25                  More recently, another Full Court of this Court in Brakni v Minister for Immigration and Multicultural Affairs [2001] FCA 48 commented on the issue of “unreasonability” in a Tribunal’s reasons, saying that it was not an error of law “that conclusions of fact drawn by a Tribunal are unreasonable or may seem to be unreasonable to another, or that other minds would not have reached the same conclusion” [10].

26                  The weight of these authorities weighs heavily in support of the Tribunal’s reasons in this appeal.

27                  We have earlier arrived at the conclusion that the learned primary judge misunderstood the Tribunal’s reasoning; we do not believe that, standing back and considering the totality of the Tribunal’s reasons, there was a non sequitur in its reasoning process nor do we think that its reasons suffered through a lack of rational process.  A generous reading of the reasons, based upon the principles that have been enunciated in Wu Shan Liang assists in coming to that conclusion.  In summary, what the Tribunal said was that the persecutory conduct that the respondent suffered at the hands of PA supporters up to the general elections in 1994 ceased in due course and, as a result of that cessation and his retirement from political life, there was not a real chance of him suffering like conduct were he to return to Sri Lanka.  If however, that interpretation of the Tribunal’s reasons were to be considered too generous, if, indeed there was found to be non sequitur and a lack of rational process in the Tribunal’s reasons, those deficiencies would not, in the circumstances of this case, be sufficient to warrant the intervention of the Court.

28                  There is, at least in this case, a relationship between rejecting the view that lack of rationality is a ground of review and the well accepted proposition that this Court, exercising judicial review, is not to engage in a merits review.  The concept of irrationality is a somewhat subjective one.  What is irrational to one judge may be seen to be rational to another as the present case demonstrates.  Indeed rationality and logic are cultural, not necessarily, legal concepts.  Different ethnic groups, part of the fabric of Australian society, employ different systems of logic and even Aristotelian syllogistic logic may not be accepted by all sections of society.  But whether or not some specific form of logic underlies judicial reasoning (eg reasoning by analogy) the present is not a case where it can be said that ordinary rules of logic employed in the English common law have been transgressed.

29                  In our opinion, the appeal should be allowed and the orders of the learned primary judge should be set aside.  In lieu thereof, there should be an order that the respondent’s application to the Court for an order of review should be dismissed with costs.  The respondent should also pay the costs of this appeal.

Associate:

Dated:              29 August 2001