FEDERAL COURT OF AUSTRALIA

Illankovan v Minister for Immigration & Multicultural Affairs [2001] FCA 1290

MIGRATION – protection visa – review of decision of Refugee Review Tribunal refusing visa – applicant a citizen of Sri Lanka and of Tamil ethnicity – whether question of well-founded fear of persecution correctly addressed

Judiciary Act 1903 (Cth), s 44(2A)

Migration Act 1958 (Cth), s 476

Migration Regulations 1994, Schedule 1, clause 866.221

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 referred

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied

Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 referred

Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 referred

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred

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

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

Craig v State of South Australia (1995) 184 CLR 163 applied

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 applied

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

P v Minister for Immigration and Multicultural Affairs [2001] FCA 989 referred

Hernandez v Minister for Immigration and Multicultural Affairs [2001] FCA 725 referred

Masood v Minister for Immigration and Multicultural Affairs [2001] FCA 405 referred

INDRAJITH ILLANKOVAN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR

V 119 of 2000

KENNY J

11 SEPTEMBER 2001

MELBOURNE

THE COURT ORDERS THAT:

1.      The application for writs of mandamus, prohibition and certiorari and an injunction in so far as it is based on the grounds in par 2 of the order of Hayne J made in the High Court of Australia on 23 November 1999 be dismissed.

2.      The applicant pay the costs of the respondent of the proceeding in this Court.

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

REASONS FOR JUDGMENT

procedural history

1                     On 23 November 1999, pursuant to s 44(2A) of the Judiciary Act 1903 (Cth), the High Court remitted to this Court that part of matter No M52 of 1999 which was pending in the High Court:

in which the applicant seeks a writ of mandamus, prohibition or certiorari or an injunction against an officer of the Commonwealth on the grounds that:

(a)        the Refugee Review Tribunal (“the Tribunal”) failed to observe the procedures that were required by the Migration Act 1958 (Cth) (“the Act”) or the regulations under the Act to be observed by the Tribunal in connection with the making of the decision challenged in these proceedings;

(b)        the Tribunal did not have jurisdiction to make the decision it did;

(c)         the Tribunal’s decision was not authorised by the Act or the regulations under the Act;

(d)        the Tribunal’s decision involved an error of law, being an error involving an incorrect application of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.

At the hearing in this Court on 8 March 2001, the applicant abandoned reliance on the grounds referred to in pars (b) and (c) above. 

2                     The applicant arrived in Australia on 29 September 1996.  At the time of his arrival, he held a Sri Lankan passport, issued in Colombo on 9 August 1995, and an Australian visitor’s visa, issued in Colombo on 28 September 1996.  He applied for a protection visa on 25 October 1996.  A delegate of the first respondent (“the Minister”) refused his protection visa application on 26 June 1997. 

3                     On 16 July 1997, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the decision of the Minister’s delegate.  The Tribunal held a hearing on 10 June 1998.  The applicant was notified, by a letter dated 20 August 1998, of the Tribunal’s decision to affirm the delegate’s decision. 

4                     The applicant did not apply for review by this Court under s 476 of the Migration Act 1958 (Cth) (“the Act”).  Instead, he applied, pursuant to s 417(1) of the Act, for the Minister to substitute for the Tribunal’s decision a decision that was more favourable to him.  This power may only be exercised by the Minister personally:  s 417(3).  By a letter dated 31 March 1999, the Minister advised the applicant that he had “decided not to consider exercising my power in your case”.

5                     On 18 May 1999, the applicant commenced proceeding M 52 of 1999 in the High Court, seeking writs of prohibition, certiorari and mandamus, and an injunction against the Minister and the second respondent.  The draft order filed at the time sought relief in relation to the s 417 decision, and an extension of time in which to make application in relation to the Tribunal’s decision.

6                     On 11 October 1999, a Justice of the High Court heard the matter, along with thirty-one similar applications.  The Court directed that, before 12 November 1999, the applicant (and each other applicant) file and serve a summary of argument setting out the grounds on which any decision was challenged, the remedy sought, the reasons applicable for any enlargement of time, and whether the matter should be remitted to any and which court.

7                     On 15 November 1999, the applicant in matter No M 131 of 1998 filed a summary of argument.  This document appears on the court file in the present case.  At a further hearing on 22 November 1999, the present applicant accepted that this summary would apply to his case.  The summary of argument sought relief in respect of the Minister’s decision under s 417.  It also challenged the Tribunal’s decision to affirm the decision of the Minister’s delegate. 

8                     On 23 November 1999, a Justice of the High Court granted an order nisi.  Amongst the orders made that day was an order in the terms set out in [1] above.  There were also orders that:

Further proceedings in the part of the matter that is remitted to the Federal Court of Australia be as directed by that Court.

Costs of the part of the matter that is remitted to the Federal Court of Australia (including the costs of the application to the date of this order) be reserved to that Court.

The Deputy Registrar of this Court forward to the proper officer of that Court photocopies of all documents filed in this Court.

9                     The decision the subject of review in the proceeding in this Court is the Tribunal’s decision that it is not satisfied that the applicant has a well-founded fear of being persecuted in Sri Lanka by reason of his race or political opinion. 

legislative framework

10                  The jurisdiction and powers of this Court in this matter are controlled by s 485 of the Act.  Subsection 485(3) provides:

If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under [Part 8].

The remitted matter relates to a judicially-reviewable decision:  see s 475(1) of the Act.  The powers of the Court are set out in s 481.

11                  Section 36 of the Act provides:

(1)    There is a class of visas to be known as protection visas. 

(2)    A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The Refugees Convention is defined in s 5(1) as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol, as the Protocol relating to the Status of Refugees done at New York on 31 January 1967. 

12                  Schedule 2 of the Migration Regulations 1994 makes further provision for protection visas.  Clause 866.221 of Schedule 2 provides that it is a criterion for a protection visa that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  Protection obligations arise in relation to a person who falls within the definition of “refugee” in the Convention as amended by the Protocol (collectively, “the Convention”).  A refugee is defined in Article 1A(2) of the Convention as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country … .

applicant’s protection visa application

13                  In his protection visa application, the applicant stated:

I left my country on a visitor’s visa to attend my grandfather’s funeral in Perth, WA. 

I have wanted to leave Sri Lanka for some time to avoid arrest by the armed forces. 

14                  He further stated:

As a young Tamil I fear that if I return to Sri Lanka that I’ll be arrested on suspicion and killed by the Security Forces. 

My family (after the death of … my father) consisting of my … mother and brother aged 11 years lived in Colombo at Wellawatta, in a house of a relation of my father.  This area in Colombo is mainly occupied by Tamils, and there was a degree of security due to this fact.

A month ago, my mother and the family had to shift to live in Dehiwela, where there are few Tamils.  This she had to do as my relation sold his house at Wellawatta.  A few months ago, there was a bomb explosion at Dehiwela, which killed over 50 persons.  Thereafter, the army and police are conducting a no. of raids in this area searching for young Tamil youths.  I know some of these youths who have been picked up in these raids, and had never returned home.  Their parents feel that they had been killed by the army on suspicion. 

In the past few months a no. of active Tigers supporters have come into the city of Colombo.  This has increased arrest of young Tamils, and their subsequent disappearance. 

After I came to Australia, my mother informed me recently, that my home in Dehiwela was searched by the police.  They have called for me by name.

The Government is on a war footing against young Tamils.

There is a committee of officials to whom parents can appeal to when their children are arrested.  This is only effective if the parents concerned have the necessary influence.

In my case I lost my father in 1992.  My family consists only of my mother and younger brother.  Therefore, if I get arrested, there will be no one to make even a protest or give me the needed assistance.

Therefore I feel that in my position, I will get no protection from the authorities.

15                  Under cover of a letter dated 2 January 1997 from Legal Aid Western Australia (“Legal Aid”), the applicant submitted a statutory declaration also dated 2 January 1997.  In it, he said, amongst other things, that:

Life for me in Sri Lanka has become threatening.  My father was a strong sympathiser of the Tamil Tiger Movement.  I also support this Movement.  The Tamil Tigers are assisting us to obtain a separate state from the Sinhalese and are trying to help us to live in peace.  I believe that if it were not for the Tiger Movement we would be unable to survive, or at least we would be denied all basic rights.  I have at no point, however, been involved in the terrorist actions of the Tamil Tiger Rebels. 

…

The situation in Dehiwela has deteriorated significantly since my family and I moved there.  Within the last few months there was an explosion in a railway station in which over 50 people were killed.  The army and the police believe that young male Tamils were responsible for this bombing.  The majority of people in Jaffna are Tamils and the police are of the opinion that all young Tamil males whom originate from Jaffna become a threat to the Sinhalese.  I hold an identity card from Jaffna which states that I am a Tamil.  The Security Forces perceive me as a potential Tamil Tiger.

Shortly after this attack a school friend of mine was arrested.  …  I was told of this event 2 or 3 days later by a Sinhalese friend of mine whose name is Hasala.  Hasala had been on the public bus with [my friend] when the bus was forced to pull over by the Security Forces.  …  The bus was searched and the passengers were forced to show their identity cards in order to identify all of the Tamil males.  [My friend] had recently arrived from Jaffna and therefore possessed an identity card from Jaffna.  The Security Forces perceive Tamil youths from Jaffna as potential Tamil Tigers.  I do not know if [my friend] is still alive as he has not come back to school since his arrest.  I do know that persons who are detained under suspicion of being a terrorist have been detained and never been seen again.

I am aware that security forces interrogate detainees about the names and whereabouts of young Tamil males.  I know that [my friend] would not willingly have revealed my identity, but I do believe that Tamils are physically forced into revealing this information.

On 28 September 1996 I left Sri Lanka to come to Australia in order to attend my Grandfather’s funeral.  I was granted a Visitor’s Visa.  I know that the situation with the Security Forces searching for young Tamil males has not improved.  Ex-army officers are threatening Tamils and breaking into houses to check identity cards and at the same time stealing family possessions.  These ex-army officers have been kidnapping Tamil males, killing them and throwing the bodies into the river.  I am terrified about this persecution by officers who are acting beyond their powers of temporary detention. 

My mother telephoned me in early October 1996 from Sri Lanka and informed me that the police had come to the house at midnight one night asking for me by my full name.  The house was searched based on the suspicion that I was a Member of the LTTE.

The applicant provided the Minister’s delegate with a copy of a letter dated 2 November 1996 from his mother, and a translation of it.

16                  By letter dated 16 January 1997, Legal Aid dealt with some of the issues raised at an interview between the applicant and the Minister’s delegate on 8 January 1997, and forwarded a copy of the applicant’s father’s death certificate.  By letter dated 30 January 1997, Legal Aid sent to the delegate additional documents, including a copy of a letter from his mother’s landlord “corroborating [his] mother’s recollection of events on the evening that the Sri Lankan army and police searched the family home”.

17                  Subsequently, by letter dated 21 April 1997, Legal Aid wrote to the Minister’s delegate on behalf of the applicant making “submissions on the documents from the Australian High Commission in Colombo pertaining to Mrs Illankovan’s special assistance category application and Mrs Illankovan’s short stay visitor visa application papers”.  The letter continued:

More specifically the submissions address Mrs Illankovan’s alleged claim that her husband was killed by terrorists in Sri Lanka.

This matter arose during Mr Illankovan’s interview with the Department of Immigration on 8 January 1997 to assess his application for a Protection Visa.  During the course of this interview Mr Illankovan was asked how his father had died.  He replied by saying that his father had died of liver failure.  It was then put to Mr Illankovan that his mother had claimed that, as a result of an attack made by the LTTE during conflict in 1992, his father was killed.  Mr Illankovan denied that this was the case and maintained that his father had died of liver failure.

… 

Mrs Illankovan does not state the cause of death of her husband in any of the documents that she submitted to the Colombo High Commission.  In fact the only reference that Mrs Illankovan makes at all to the death of her husband is in her application for migration to Australia under the special assistance category made on 23 August 1995.  In question 33 of that application form Mrs Illankovan states that her husband is deceased.

There are only two references by the Australian High Commission about Mr Illankovan’s death.  … 

It is my view that it is significant that reference is not made to any claim made on behalf of Mrs Illankovan that her husband was killed.  …  The decision record states that Mr Illankovan ‘died in 1992’.  If Mrs Illankovan had alleged that her husband had been killed then it is my submission that the word killed would have been used instead of the word died.

The only other reference by the Australian High Commission to Mr Illankovan’s death appears in the case notes for Indrajith Illankovan.  At the end of the first paragraph of that case note there is a sentence there which reads as follows:

‘Claims husband killed in terrorist activities’. 

This case note is secondary material.  … 

Furthermore, it is my submission that at no time did Mrs Illankovan claim that her husband was killed in terrorist activities.  …

…

It is my submission that, if at any time the officials of the Australian High Commission in Colombo understood that Mrs Illankovan claimed that her husband was killed in terrorists activities, then this understanding is mistaken.  … 

In a statutory declaration dated 18 April 1997, also submitted to the Minister’s delegate, the applicant stated that his mother had denied claiming that his father was killed by terrorists.

18                  Under cover of letter dated 8 June 1998, Legal Aid, on the applicant’s behalf, forwarded documents to the Tribunal in support of his review application, including newspaper articles, letters from his mother, and country information from various sources.  Legal Aid provided further material in support of his application under cover of letter dated 15 June 1998. 

reasons for the tribunal’s decision

19                  Under the heading “Claims and Evidence”, the Tribunal noted that:

Mr Illankovan and his family applied to migrate to Australia in 1994.  According to a letter from Mr Illankovan’s aunt attached to the file, his father had a thriving boat building business in Point Pedro when ethnic problems began in the area.  The LTTE took the boats which Mr Illankovan senior made by force and pressured him to make more and more.  He fled to Colombo with his family, abandoning his business and property.  Whilst in Colombo he was offered work in Oman.  He did not return to Sri Lanka when his contract in Oman was completed because his belongings had all been taken over by the LTTE, who continued to occupy the Illankovans’ home and factory in 1995 when the letter was written.  Mr Illankovan took his family to India where he established a factory.  However, he was forced to return home when he became ill and died in 1992.  Mr Illankovan’s aunt said that he and his brother could not return to Point Pedro because their property had been taken over by the LTTE, they would have nobody to protect them if they returned there and they were afraid that they would be forced to join the LTTE.  They lived in fear in Colombo because they could be arrested at any time and they were ill-treated and humiliated by the Singhalese people there.

20                  The Tribunal also referred to the claims made by the applicant in written submissions provided at the time of his protection visa application; his mother’s letter of 2 November 1996; her landlady’s letter of 10 January 1997; other written submissions to the Minister’s delegate; the documents forwarded to the Tribunal, particularly letters from his mother dated 29 March 1998 and 16 April 1998 (both postmarked 19 May 1998 and received on 2 June 1998); the applicant’s evidence at the hearing, including his provision of a facsimile dated 7 June 1998 from his mother; the evidence of Mr Ramar Somasunderam, Sri Lankan Tamil Association of Western Australia; and a post-hearing submission including a statement from the applicant’s aunt to the effect that the applicant “does sympathise with the LTTE”. 

21                  Under the heading “Reasons for decision”, the Tribunal described the applicable legal regime.  In so doing, the Tribunal said:

To be eligible for a protection visa an applicant must have a well founded fear that they will be persecuted for a Convention reason on return to their country of nationality.  This means that they must be afraid to return to their country of nationality and there must also be a real chance that they will face serious harm or discrimination or an abuse of their fundamental human rights in that country within the reasonably foreseeable future.  Furthermore, the harm must be inflicted as part of a course of systematic conduct directed at them or a group to which they belong or are perceived to belong, and it must be motivated by an intention or desire to inflict harm on them because of their actual or imputed race, religion, nationality, membership of a particular social group or political opinion.  The threat of harm need not be the product of government policy or activity; it may be enough that a government is unwilling or unable to protect an individual from persecution.  In cases where protection of the country of nationality is available, the person concerned is not in need of international protection and is not a refugee.  In cases where the risk of persecution only exists in a particular area of the applicant’s country of nationality, they will not be considered to be in need of international protection unless it is unreasonable to expect them to relocate to an area where they are not at risk of persecution.

22                  The Tribunal went on to find that “many of the claims made by Mr Illankovan [were] lacking in credibility”.  The Tribunal was “very sceptical” about the applicant’s claim to be an LTTE sympathiser, since his aunt had earlier indicated that members of his family were “victims of the LTTE”.  It added that even if it accepted the applicant’s claim in this regard:

[H]e has never shared these views with anyone in Sri Lanka, nor has he participated in any political activities in support of the LTTE or any other political organisations.  In these circumstances, I consider there is no more than a remote chance that his views would cause him problems with the authorities on his return to Sri Lanka.

23                  The Tribunal found the applicant’s claim that he had attracted the authorities’ interest after he left Sri Lanka because of his school friend to be “implausible”.  The Tribunal said:

The bomb blast to which Mr Illankovan referred occurred on 24 July 1996.  Some 70 people were killed and over 500 injured.  Many Tamils were questioned and some detained in the aftermath of this bombing.  A man who confessed to planting the bomb was arrested in early September and others were detained over the next two or three weeks.  Those who were detained appear to have been named and charged (see Inform:  Situation Report September 1996).  However, while there were a relatively small number of disappearances in Colombo in 1996, there is nothing in the evidence before the Tribunal which indicates that there [were] widespread disappearances in Colombo following this bombing and I am somewhat sceptical of the claim that Mr Illankovan’s school friend was detained at this time and never traced or heard from again. 

Second, and more importantly, even if I accept that Mr Illankovan’s friend disappeared after being detained in mid-1996, the claim that this person gave Mr Illankovan’s name to the Sri Lankan authorities is mere speculation and I find it far-fetched and implausible.

24                  The Tribunal did not accept that the security forces came to Mr Illankovan’s home after he left Sri Lanka because he was suspected of involvement in the LTTE on account of his friend naming him.  The Tribunal found that “the claim that the security forces searched Mr Illankovan’s home and took books and documents belonging to him on three occasions to be lacking credibility”.  The Tribunal said:

The first visit allegedly occurred in October 1996, shortly after Mr Illankovan arrived in Australia and shortly before he applied for a protection visa.  The next visit allegedly occurred in March 1998, but the letter from Mr Illankovan’s mother informing him of the incident is postmarked 19 May 1998, eight days after the date of the letter inviting him to a hearing of the Tribunal.  The facsimile regarding the third visit was dated 7 June 1998, the day before the Tribunal hearing of Mr Illankovan’s case.  I find it very surprising and convenient for Mr Illankovan’s case that the authorities would search his home and take a number of documents belonging to him on two occasions nearly two years after he had left the country and shortly before the hearing of his case by the Tribunal.  I do not accept that these visits occurred and find the letters from Mr Illankovan’s mother regarding these events to be self-serving documents produced to assist with his claim for a protection visa.

25                  The Tribunal accepted that the applicant’s home “may have been visited by the authorities since his departure from Sri Lanka”; that “checking of this kind is not uncommon in Colombo”; and that the applicant’s name “may recently have been deleted from the list of those living at his mother’s home”.  The Tribunal stated, however, that it did not consider that the deletion of his name from the register “indicates that the authorities have an adverse interest in him”. 

26                  The Tribunal found that:

After considering all of the evidence, I do not accept that Mr Illankovan was or is suspected of involvement with the LTTE in Sri Lanka because his name was given to the authorities by a friend.

The Tribunal also found that there was no “real chance that he will face serious harm amounting to persecution in Sri Lanka merely because he is a Tamil, or because his ethnicity means that the authorities will suspect him of involvement with the LTTE”.  The Tribunal observed that the people who are “particularly at risk of detention are young male Tamils, who have recently arrived in Colombo from the north and are unable to explain their presence in Colombo”.  It added that “[o]ther risk factors include not possessing an identity card, not having someone to vouch for you and establish your bona fides, and not speaking Sinhalese”. 

27                  The Tribunal considered that, in the circumstances prevailing in Sri Lanka:

[T]he institution of measures such as road blocks, identity checks, questioning and even brief periods of detention while identity is established or investigations into the circumstances of those reasonably suspected to be involved in or have knowledge of terrorist groups or activities to be acceptable general security measures and not persecutory in nature.

The Tribunal concluded that, notwithstanding the evidence of Mr Somasunderam:

[T]he evidence before the Tribunal does not indicate that all Tamils, or even all young Tamil males, living in Colombo face a real chance of being suspected of LTTE involvement or of being detained or ill-treated or otherwise seriously harmed by the authorities in Colombo merely because they are of Tamil ethnicity.  Mr Illankovan himself did not face any serious problems with the authorities prior to his departure from Sri Lanka.  Furthermore, as someone with a history of living and studying in Colombo, with family support in the city and no history of LTTE involvement or suspected LTTE involvement, I find there is no more than a remote chance that he will face serious problems amounting to persecution on his return to Sri Lanka because of his Tamil ethnicity.

The Tribunal did not accept Mr Somasunderam’s claim that “all Tamils who are detained by the police remain in detention for prolonged periods and face torture”.

28                  In relation to the documents provided by Mr Illankovan, the Tribunal said:

These documents provide information on the security situation in Colombo and elsewhere, examine deficiencies in the manner in which investigations are conducted and document abuses which have occurred.  However, they do not indicate that Tamils in Colombo are detained or tortured in a manner or scale which suggests that all Tamils face a real chance of experiencing serious harm amounting to persecution in Colombo.

The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention. 

grounds for review

29                  At the hearing in this Court, the applicant challenged the Tribunal’s decision on the ground that the Tribunal had failed to comply with its obligations under s 430 of the Act, relying on the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469.  The decision in Singh was, however, overruled by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, delivered after the hearing in this case.  The High Court held, contrary to Singh, that s 430(1)(c) of the Act merely obliged the Tribunal to set out its findings on those questions of fact which it considered to be material to the decision that it made, and the reasons it had for reaching that decision:  see 180 ALR 1 at par [34] per Gaudron J, [68] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) and [217] per Callinan J. 

30                  The Court subsequently afforded the parties an opportunity to make supplementary submissions in light of the reasoning in Yusuf.  I discuss these submissions at the conclusion of these reasons.

31                  The applicant also invoked s 476(1)(e) in submitting that the Tribunal’s decision involved a relevant error of law.  The applicant gave the following particulars of this ground:

(a)    The [Tribunal] misconstrued the test of a ‘real chance’ of persecution and required the applicant to establish before it that he was or is suspected of involvement in the activities of the LTTE by Sri Lankan authorities rather than whether he had a well-founded fear that this was the case.

(b)    The [Tribunal] misconstrued the test of a ‘real chance’ of persecution arising by reason of the applicant’s status as a young Tamil male because it required him to establish that he would face serious problems amounting to persecution rather than whether he had a well-founded fear of persecution.

(c)     The [Tribunal] misconstrued the concept of ‘persecution’ as used in the Refugees Convention by accepting that it was only made out where a person could establish the person would suffer ‘serious problems amounting to persecution’ rather than selective harassment by conduct which caused the person to suffer less than ‘serious harm’.

(A submission made by the applicant in written contentions that the Tribunal’s findings concerning his credit revealed error was not pursued at the hearing.) 

was there reviewable error?

Suspected of LTTE involvement

32                  I reject the applicant’s submission that the Tribunal “erred in considering whether the applicant had satisfied that he was suspected rather than whether the applicant’s fear that this was the case was well-founded”.  It is to be borne in mind that it was the applicant who advanced the claim that he had a well-founded fear of persecution because the Sri Lankan authorities suspected him of involvement with the LTTE, on account of the fact that he had been named by a friend.  In saying that it did not accept that he was “suspected of involvement with the LTTE …”, the Tribunal was stating that it rejected this claim.  So much appears from the context in which the Tribunal makes the challenged statement.  In preceding paragraphs, the Tribunal set out its reasons for rejecting the claim.  These included the following matters:

(1)   The Tribunal found that there was no evidence of widespread disappearances following the bomb blast in July 1996 and, on the contrary, charges were brought against specific individuals in respect of the bombing.

(2)   The Tribunal found that the claim that a friend gave his name to the authorities was “far-fetched and implausible”.

(3)   The Tribunal did not accept that the security forces visited his family’s house in October 1996 for anything other than a “routine check”.

(4)   The Tribunal did not accept that the security forces had visited his family’s house and taken documents belonging to him on two occasions in 1998. 

(5)   The Tribunal found his mother’s letters regarding these events to be “self-serving”. 

(6)   The Tribunal accepted that the authorities may have visited his family’s house since his departure from Sri Lanka but found that visits of this kind were not “uncommon in Colombo” and did not indicate that the authorities had “an adverse interest in the people living in the house concerned”.

(7)   The Tribunal did not accept that the deletion of the applicant’s name from the house register indicated that the authorities had “an adverse interest in him”.

33                  At the commencement of its reasons, the Tribunal correctly stated the test for a protection visa and referred to relevant authorities.  It dealt with the question whether it was satisfied that the applicant had a well-founded fear of persecution for a Convention reason at the conclusion of its reasons when it came to affirm the delegate’s decision.  There is no basis for imputing to the Tribunal any error of the kind the applicant alleges, although I do note that the words “was or is suspected of involvement with the LTTE” may involve some ambiguity. 

34                  The applicant read these words as a reference to past actual LTTE membership or present suspected LTTE membership.  This is not, I think, a correct reading.  These words refer to a past or present suspicion of LTTE membership, in accordance with the applicant’s claim.  If the Tribunal had intended to refer to actual membership, rather than just suspected membership, of the LTTE, it might well have said “was involved or is suspected of involvement with the LTTE”. 

Well-founded fear and serious problems

35                  The applicant further submitted that the Tribunal “erred in considering the question of whether the applicant had a well-founded fear of persecution by reason of being a young Tamil male”; and “in considering whether the applicant would face ‘serious problems amounting to persecution’”.  The applicant submitted that the Tribunal was required to consider “whether the applicant would suffer serious punishment or penalty or significant detriment or disadvantage which may be less than ‘serious problems’”.  I reject these submissions which turn upon the Tribunal’s reference to “no more than a remote chance that [the applicant] will face serious problems amounting to persecution” on returning to Sri Lanka. 

36                  The question whether any act constitutes persecution depends on the circumstances of the case.  The question is essentially one for the Tribunal, not the Court, to decide:  see Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 268.  Notwithstanding this, to adapt the judgment of the Full Court in Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 at [48], “[t]o the extent that the Tribunal did equate persecution with significant harm and applied that as a rigid test, the Tribunal would have erred”. 

37                  The Tribunal in this case did not, however, apply a rigid test.  It is plain enough from its reasons, read as a whole, that it was adhering to the notion of persecution explained by Mason CJ in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.  In Chan at 388, his Honour referred to persecution within the meaning of the Convention as involving “some serious punishment or penalty or some significant detriment or disadvantage”.  This passage was quoted with approval in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570.  In finding that “there is no more than a remote chance that he will face serious problems amounting to persecution on his return”, the Tribunal was saying no more than the applicant would not face harm amounting to persecution. 

38                  As already noted, the Tribunal correctly stated what applicants must establish to satisfy it that they are individuals to whom Australia owes protection obligations and referred to the applicable authorities, including Chan.  In this discussion, the Tribunal referred to the need to show “a real chance that they will face serious harm or discrimination or an abuse of their fundamental human rights …”.  Elsewhere in its reasons, the Tribunal said that it did not believe that “there is a real chance that [the applicant] will face serious harm amounting to persecution in Sri Lanka merely because he is a Tamil”.  In connection with the documents provided by the applicant, it said “they do not indicate that Tamils in Colombo are detained or tortured in a manner or scale which suggests that all Tamils face a real chance of experiencing serious harm amounting to persecution in Colombo”. 

39                  Further, the discussion of the conditions in Sri Lanka that preceded its reference to “serious problems” confirms that there was no error in its approach.  After describing the specific situation in Colombo, the Tribunal found, in substance, that the general measures taken in Sri Lanka (e.g., road blocks, identity checks, and brief periods of detention) were “acceptable general security measures and not persecutory in nature”.  In relation to the particular position of the applicant, the Tribunal specifically noted that he “did not face any serious problems with the authorities prior to his departure from Sri Lanka”; that he had lived with his family in Colombo for some time; and that he had no history of involvement, or suspected involvement, with the LTTE.  Taking into account the context in which the challenged observations were made and reading the Tribunal’s reasons as a whole, I am unable to detect any error of the kind for which the applicant has contended.

Associated findings?

40                  The applicant also contended that the Tribunal failed to consider whether two of its findings were “associated”.  According to the applicant, the findings were “that persons were detained in early September 1996 and others detained over the next two or three weeks” and that “Sri Lankan security forces searched the applicant’s mother’s home … from October 1996”.  This contention depends on a misreading of the Tribunal’s reasons. 

41                  The Tribunal did not accept that, on account of his suspected involvement in the LTTE, the security forces came to the applicant’s home on the three occasions after he left Sri Lanka, as he alleged.  The Tribunal referred to the fact that, in the letter from the applicant’s mother, she stated that the forces did not come in October 1996 specifically looking for the applicant.  Further, the Tribunal found “the claim that the security forces searched [the applicant’s] home and took books and documents belonging to him on three occasions to be lacking in credibility”.  It did not accept that the visits in March 1998 and June 1998 occurred at all.  All that the Tribunal accepted was that his home may have been visited by the authorities since his departure, but it found that checks on the homes of people of Tamil ethnicity were not uncommon in Colombo, and did not indicate any particular interest in the occupants.  In these circumstances, there can be no basis for the complaint made by the applicant, even if it were capable of disclosing a reviewable error (which I doubt).

supplementary submissions concerning yusuf

42                  In written submissions dated 23 August 2001, concerning the application of Yusuf in this case, the applicant relied on the proposition, advanced in the joint judgment of McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) and in a separate judgment by Gaudron J, that s 476(1)(b), (c) and (e) permit an applicant for review under Part 8 of the Act to invoke the common law concept of jurisdictional error. 

43                  The concept of jurisdictional error covers a number of kinds of error, including asking the wrong question or ignoring relevant material.  This aspect of the law was explained by the High Court in Craig v State of South Australia (1995) 184 CLR 163 at 179 in the following terms:

At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law.  …  If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

44                  After noting that the limitation in s 476(3) of the Act applies to only one ground of review in s 476(1), the joint judgment in Yusuf stated at [83]-[84]:

[T]here is no reason to give either para (b) or para (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs.  In particular, it is important to recognise that, if the tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it ‘exceeds its authority or powers’.  If that is so, the person who purported to make the decision ‘did not have jurisdiction’ to make the decision he or she made, and the decision ‘was not authorised’ by the Act.

Moreover, in such a case, the decision may well, within the meaning of para (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.  …  No doubt it must be recognised that the ground stated in para (e) is not described simply as making an error of law.  The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.  That qualification emphasises that factual error by the tribunal will not found review.  Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para (e) deals.  That having been said, the addition of the qualification to para (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language.  If the tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found.  If that is so, the ground in s 476(1)(e) is made out.

I refer also to [4] of the concurring judgment of Gleeson CJ, and to [38]-[44] of the judgment of Gaudron J.

45                  As noted at the start of these reasons, at the hearing, the applicant abandoned any reliance on “want of jurisdiction” and “want of authority” grounds.  In his supplementary submissions, however, he sought to renew his reliance upon the ground of want of jurisdiction.  The applicant submitted that:

A principal finding of the [Tribunal] was that the claims by the Applicant that the Sri Lankan authorities had been searching [for] him were not credible.  A principal basis for this finding was the finding by the [Tribunal] that the letter to the Applicant from his mother dated November 1996 advising that the security forces had come to the family home in October 1996 was postmarked 19 May 1998, eight days after the letter advising of the [Tribunal] hearing … .

In making this finding, which was critical of the credibility of the Applicant, the [Tribunal] does not refer to the letter from the Applicant dated 3 June 1998 … informing the [Tribunal] that the letter from his mother was delayed due to a postal strike.  The fact, or otherwise, of a postal strike in Sri Lanka would be a matter which could be readily verified.  The failure of the [Tribunal] to consider this information meant that its findings as to the credibility of the information supplied by the mother are based on a failure to take into account a relevant matter.  For this reason the entire decision, based on credibility, is also based on a failure to take into account a relevant matter.

The Minister answered this submission in supplementary contentions dated 30 August 2001. 

46                  The Tribunal did not, in its reasons, refer to the postmark on the 2 November 1996 letter.  Rather, it referred to the fact that two letters from the applicant’s mother, which were dated 29 March 1998 and 16 April 1998 respectively, were both postmarked 19 May 1998, both having been received, according to the applicant, on 2 June 1998.  The finding to which the applicant referred is contained in the passage set out at [24] of these reasons.  In that passage, the Tribunal referred to the fact that the letter from the applicant’s mother informing him of the visit by security forces to his family’s house in March 1998 was “postmarked 19 May 1998, eight days after the date of the letter inviting him to a hearing of the Tribunal”.  In the same passage, the Tribunal also referred to the facsimile dated 7 June 1998 regarding another visit by the security forces to the house (which the Tribunal noted as “the day before the Tribunal hearing of [the applicant’s] case”).  This was the context in which the Tribunal rejected the applicant’s claim that the security forces had visited his mother’s home and taken documents belonging to him on two occasions in 1998.  The Tribunal rejected the claim upon the basis that it found it “very surprising and convenient for [the applicant’s] case that the authorities would search his home and take a number of documents belonging to him on two occasions nearly two years after he had left the country and shortly before the hearing of his case by the Tribunal”. 

47                  The Tribunal’s rejection of the applicant’s claim about the security forces’ visits in 1998 did not turn on the fact that the 29 March 1998 letter (or any other letter) was postmarked 19 May 1998.  It turned on the fact that there was a delay of two years from the applicant’s departure from Sri Lanka in 1996 and what were said to be further visits by the security forces in 1998, as well as on the fact that the alleged visits, in March and June 1998, occurred “shortly before” the Tribunal hearing in June 1998.  The latter point was made out by the applicant’s own claim that the visits occurred in March and June 1998, as well as by the 7 June 1998 facsimile, irrespective of whether regard was also had to the fact that the 29 March 1998 letter bore a postmark date of 19 May 1998.

48                  It is true that the Tribunal specifically remarked upon the 19 May 1998 postmark date and the fact that this was eight days after the date of the letter inviting the applicant to a Tribunal hearing.  As already noted, in the same vein, the Tribunal also referred to the fact that the 7 June 1998 facsimile arrived the day before the Tribunal hearing.  The applicant did not, however, contest the accuracy of these observations, and, for the reasons stated, they were not critical findings upon which any determination of the Tribunal depended.  Moreover, as the earlier discussion at [32]-[34] shows, the Tribunal rejected the applicant’s claim that the authorities suspected him of involvement with the LTTE on a number of bases.  Its rejection of his claim that the security forces visited his family’s house and took documents belonging to him on two occasions in 1998 was only one of them. 

49                  Furthermore, I reject the claim that because the Tribunal failed to mention the applicant’s letter dated 3 June 1998, then the Tribunal failed to have regard to the letter and its reference to the postal strike.  The letter stated that the applicant received his mother’s letters of 29 March and 16 April 1998 on 2 June 1998, and that their late receipt was “[d]ue to a postal strike in Colombo”.  In its reasons, the Tribunal specifically referred to the claim (which was made in 3 June 1998 letter) that he did not receive either of his mother’s letters until 2 June 1998.  In this circumstance, one simply cannot infer that the Tribunal did not have regard to the 3 June 1998 letter and its contents. 

50                  In this case, even if the Tribunal did not take into account the applicant’s claim that the letters had been delayed due to the postal strike, the Tribunal was not bound to take that matter into account.  As already noted, the postal strike claim did not bear upon the issue of the two-year delay.  Nor did it materially impinge upon the Tribunal’s rejection of the applicant’s claim that the authorities suspected him of involvement with the LTTE.  There may be numerous matters that a decision-maker may take into account (and that are not in law irrelevant) although the decision-maker would not be bound at law to take them into account.  As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40:

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.  If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.  If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.  In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … .  By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.  (Citations omitted.)

In Yusuf, the majority reiterated this approach at [73], observing:

The considerations that are, or are not, relevant to the tribunal’s task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the tribunal is called on to consider (Abebe v Commonwealth (1999) 197 CLR 510 at 579 [195] per Gummow and Hayne JJ).

51                  Moreover, the relevant consideration ground, as it is understood at common law, does not permit inquiry into the merits of the administrative decision under review.  As Mason J added in Peko-Wallsend at 40-41:

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind.  It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.  Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned … .  (Citations omitted.)

It is not for this Court to second-guess the Tribunal’s evaluation of the evidentiary material before it, or its findings of fact. 

52                  Furthermore, to the extent that the applicant’s case asserts that the Tribunal was under a duty to inquire into the fact of the postal strike in Sri Lanka, that submission must fail.  Whilst s 427(1)(d) of the Act confers power on the Tribunal to cause inquiry to be made, it does not impose on the Tribunal any duty to do so:  see Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [86]; P v Minister for Immigration and Multicultural Affairs [2001] FCA 989 at [21] – [22]; Hernandez v Minister for Immigration and Multicultural Affairs [2001] FCA 725 at [16]; Masood v Minister for Immigration and Multicultural Affairs [2001] FCA 405 at [17].

53                  In his supplementary submissions, the applicant also contended that the Tribunal had failed to ask whether he had a well-founded fear of harm or serious harm that amounted to a fear of persecution.  This, so the applicant submitted, amounted to a failure to ask the right question.  The Tribunal’s decision was, therefore, beyond jurisdiction for the purposes of s 476(1)(b) of the Act. 

54                  At [35] to [39] above, I considered a like submission that the Tribunal made an error of law of a kind referred to in s 476(1)(e) in considering the question whether the applicant had a well-founded fear of persecution by reason of being a young Tamil male.  The considerations which lead me to reject that submission lead me to reject this supplementary submission too.  Further, the Tribunal specifically asked itself the right question when it referred to “serious harm amounting to persecution” and “serious problems amounting to persecution” in the passages set out in [26] to [28] above.

conclusion

55                  The challenge made to the Tribunal’s decision in this case focused on the manner or style in which the Tribunal wrote its reasons, rather than on the substance of those reasons.  Such an approach will not ordinarily support a finding of reviewable error:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2 and 291. 

56                  For the reasons stated, I find that the matters that have been remitted to this Court do not disclose a ground for the relief sought.  There will be an order that the applicant pay the respondent’s costs in the Federal Court, including reserved costs. 

Associate:

Dated:              11 September 2001