FEDERAL COURT OF AUSTRALIA

Dabarera v Minister for Immigration & Multicultural Affairs [2001] FCA 1390

MIGRATION ­– visa – protection visa – applications by two brothers for review of decisions not to grant visas – applications made one year apart but heard by one RRT member on same day – evidence of each brother in his case not taken into account in other brother’s case – whether cases required to be joined – whether RRT failed to look to the future – whether RRT ignored issue of membership of a particular social group – whether RRT dealt with cases on the basis on which they were put – whether RRT misapprehended the source of the violence feared by the applicants – whether error of law not to take into account evidence of each brother in relation to the other brother’s case – whether RRT found nonexistent fact that applicants bound to set out their whole case at the earliest stage – whether statement that there was “no evidence” about a matter when applicant had given evidence about it a finding of a particular fact – whether findings of lack of knowledge when evidence about matters had been given were findings of particular facts – whether decisions affected by actual bias – unfairness to applicants not within grounds for judicial review – whether applicants should be ordered to pay costs

WORDS AND PHRASES – “in respect of the same non-citizen”

Migration Act 1958 (Cth) ss 5(1), 36(1), 36(2), 65, 363(2), 411(1)(c), 420(2)(b), 424A, 425, 427(1), 427(2), 430(1), 475(1)(b), 476(1)(a), 476(1)(b), 476(1)(c), 476(1)(d), 476(1)(e), 476(1)(f), 476(3), 496(1)

Administrative Decisions (Judicial Review) Act 1977 s 5

Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 cited

Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300 cited

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 (2000) 98 FCR 469 cited

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 applied

Abebe v Commonwealth of Australia [1999] HCA 14 (1999) 197 CLR 510 cited

Re Minister for Immigration & Multicultural Affairs; Ex parte Epeabaka[2001] HCA 23 (2001) 179 ALR 296 cited

Sun Zhan Qui v Minister for Immigration & Multicultural Affairs (1997) 81 FCR 71 cited Thevendram v Minister for Immigration & Multicultural Affairs [2000] FCA 1910 cited

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

Al-Asam v Minister for Immigration & Multicultural Affairs [2001] FCA 1361 cited

Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 962 cited

Vichlenkova v Minister for Immigration & Multicultural Affairs [1999] FCA 1338 cited

Kathiresan v Minister for Immigration & Multicultural Affairs (Federal Court of Australia, Gray J, 4 March 1998, unreported) cited

Applicant “F” v Minister for Immigration & Multicultural Affairs [2001] FCA 304 cited

Win v Minister for Immigration & Multicultural Affairs[2001] FCA 56 (2001) 105 FCR 212 cited

Li v Minister for Immigration & Multicultural Affairs [2000] FCA 19 (2000) 96 FCR 125 cited

Guden v Minister for Immigration & Multicultural Affairs [2000] FCA 236 (2000) 58 ALD 352 considered

METHISGE SAMAN PATRICK DABARERA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 616 of 2000

METHISGE PLACIDUS LIONEL DABARERA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 617 of 2000

GRAY J

2 OCTOBER 2001

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  There be no order as to costs.

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

THE COURT ORDERS THAT:

1.      The application be dismissed.

2. There be no order as to costs.

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

REASONS FOR JUDGMENT

1                     These two applications, for judicial review of separate decisions of the Refugee Review Tribunal (“the Tribunal”), were heard together by consent of the parties. The applicants are brothers and are citizens of Sri Lanka.

2                     Section 36 of the Migration Act 1958 (Cth) (“the Migration Act”) provides, so far as is relevant to these proceedings, as follows:

“(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.”

3                     Section 5(1) defines “Refugees Convention” to mean “the Convention relating to the Status of Refugees done at Geneva on 28 July 1951” and “Refugees Protocol” to mean “the Protocol relating to the Status of Refugees done at New York on 31 January 1967”. The effect of these instruments, so far as is relevant to these cases, is that Australia owes protection obligations to a 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”.

4                     The effect of s 65 of the Migration Act is that, after considering a valid application for a visa, the Minister for Immigration and Multicultural Affairs (“the Minister”), if satisfied that the relevant criteria have been met, is obliged to grant the visa sought. If not so satisfied, the Minister is obliged to refuse the application for a visa. See Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 274 – 275 per Brennan CJ, Toohey, McHugh and Gummow JJ.

5                     Section 496(1) of the Migration Act provides that the Minister may delegate to a person any of the Minister’s powers under the Migration Act. By s 411(1)(c), a decision to refuse to grant a protection visa is reviewable by the Tribunal. By s 475(1)(b), decisions of the Tribunal are judicially-reviewable, ie reviewable by this Court. The grounds for judicial review are specified in s 476 and are strictly limited. I shall discuss those limits in some detail later in these reasons for judgment.

6                     Methisge Placidus Lionel Dabarera (“Lionel Dabarera”) was born on 2 September 1970. He entered Australia on 24 January 1997 using a false passport. He made an application for a protection visa on 24 April 1997. A delegate of the Minister assessed his application without conducting an interview. On 3 November 1997, the delegate refused his application. On 24 November 1997, Lionel Dabarera made an application to the Tribunal for review of the delegate’s decision. In dealing with the review, the Tribunal conducted a hearing on 13 April 2000 between 3.35 pm and 6.40 pm. On 30 June 2000, the Tribunal made a decision affirming the delegate’s decision to refuse to grant a protection visa and published reasons for its decision. On 18 August 2000, Lionel Dabarera commenced his proceeding in this Court, seeking judicial review of the Tribunal’s decision.

7                     Methisge Saman Patrick Dabarera (“Patrick Dabarera”) was born on 21 May 1975. He entered Australia on 7 September 1998, using a false passport. He made an application for a protection visa on 5 October 1998. A delegate of the Minister assessed his application without conducting an interview. On 30 October 1998, the delegate refused his application. On 23 November 1998, Patrick Dabarera made an application to the Tribunal for review of the delegate’s decision. In dealing with the review, the Tribunal conducted a hearing on 13 April 2000 from 12.15 pm to 3.15 pm. On 30 June 2000, the Tribunal made a decision affirming the delegate’s decision to refuse to grant a protection visa and published its reasons for decision. On 18 August 2000, Patrick Dabarera commenced his proceeding in this Court, seeking judicial review of the Tribunal’s decision.

8                     It is significant that, although the two applications for review of the delegates’ decisions were made almost exactly a year apart, the Tribunal dealt with them in tandem. The Tribunal was constituted by the same member for the purposes of dealing with both matters. The two hearings were conducted on the same day, consecutively, with only a short break between them. The two decisions were made on the same day. The two sets of reasons for decisions are, in part, expressed in the same terms.

The claims made by Lionel Dabarera

9                     In a statement forming part of his application for a protection visa, Lionel Dabarera claimed that he feared persecution, if he were to return to Sri Lanka, because of his former political activities. He said that he had joined the United National Party (“UNP”) in 1988 and had been an active member since then. In May 1991, he went to Japan for work purposes, returning to Sri Lanka in January 1994. He worked hard for the UNP in national elections in 1994, conducting public meetings at rural divisional and district levels, publicising UNP meetings and candidates and enrolling many new members. The UNP unexpectedly lost these elections and was replaced by a coalition of parties under the name of the People’s Alliance (“PA”). Lionel Dabarera then faced political harassment and acts of revenge from PA supporters. He was threatened and physically attacked, resulting in his admission to hospital. Gunshots were fired at his house and it was vandalised very badly. For the sake of his family, he had to leave the house and move to a different area where relatives were living.

10                  From 1995, Lionel Dabarera did not stay with his family, except that he returned home for a short period in June 1996 when there were provincial elections. Again, PA supporters targeted his house for shooting and vandalism and his family members were threatened. He identified as those who would harm or kill him if he went back thug forces loyal to four members of parliament (Jeyarajah Fernandopulle and another member for the Western Province as well as two members for the North-western Province) and Mr Vanderlan and Mr Patrick (both members of the divisional council of Wennappuwu in the North-western Province). He claimed that they were planning to destroy the UNP structure by targeting and destroying those within its ranks.

11                  Lionel Dabarera provided further information to the Tribunal. He stated that, whilst he was in Sri Lanka, he received valuable information about atrocities committed by Mr Fernandopulle and other PA politicians. PA supporters then suspected him and a friend of his of having documents that would provide evidence about those atrocities. As a result, his friend was forced to leave the country and Lionel Dabarera also left the country. Thereafter, supporters of PA politicians ransacked his house looking for the incriminating documents. No such documents existed. He also said that he had continued to work for his political party whilst in hiding.

12                  Lionel Dabarera also informed the Tribunal before its hearing of two incidents he alleged had occurred in relation to friends of his. The first involved Arthur Fernando, a taxi driver who was kidnapped in November 1996 by people who asked for photos and documents about Mr Fernandopulle and other PA politicians. The second concerned another friend who was taken by the police in March 1998 (after Lionel Dabarera had left Sri Lanka). The police threatened him in relation to the alleged documents. The friend told the police that Lionel Dabarera and his friend Surein had the documents. On the same day, the police went to Surein’s house and Lionel Dabarera’s house. They checked the entire house and questioned his mother and brother about the documents. Lionel Dabarera said: “I did not mention this in my application as I thought that it is (sic) irrelevant.”

13                  Lionel Dabarera also supplied to the Tribunal before the hearing newspaper articles and other documents containing information about the conduct of politicians and their supporters in Sri Lanka. They included an account of a visit to a police station by Mr Fernandopulle, who inspected the police record book and ordered the officers to record an entry of the PA supporter if they took down a complaint from a UNP supporter.

14                  At his hearing before the Tribunal, Lionel Dabarera gave oral evidence. He was questioned by the Tribunal member about a number of aspects of his claims. He also relied on two letters, which he tendered to the Tribunal. One was from Gamini Atukorale MP, General Secretary of the UNP, dated 4 March 1997. This letter stated that Lionel Dabarera:

“is from a well known U.N.P. family. He worked very hard for our party during last (sic) two elections.

His family members informed me that he is faced with death threats from his political opponents, and a stay outside Sri Lanka would be beneficial to him.”

15                  The second letter was from Festus Perera, Member of Parliament for the Puttalam District, and was dated 15 January 1997. Referring to Lionel Dabarera, it said:

“It is correct that he worked wholeheartedly for the United National Party which lost the elections in 1994. Unfortunately after the defeat of the U.N.P. in the general election in 1994 and the Presidential elections thereafter, certain people who supported the U.N.P. wholeheartedly became badly affected as harassment was directed against them and life became intolerable for them, thereby forcing them to flee the country.

The person referred to herein is one such person.”

The reasons of the Tribunal in relation to Lionel Dabarera

16                  The Tribunal did not accept Lionel Dabarera’s claims about persecution. In its reasons, it said:

“The Tribunal accepts that the applicant may have been a member of the UNP. The Tribunal accepts that the applicant may have suffered some harassment around the time of the 1994 elections, as this was common and localised. However it does not accept that he was subject to any organised campaign by Mr Fernandopulle and his thugs or pay back or persecution based on the basis of his political opinion. … The Tribunal does not accept as credible the applicant’s claims as to the extent of his political profile or the claimed harassment for all the reasons set out below.”

17                  In relation to the letter from Gamini Atukorale, the Tribunal said:

“This information is vague, and it is not clear what 2 elections are referred to. The applicant claims to have been in hiding following the 1994 election and the next election was held on 21 March 1997, two months after he left the country. … In this vague communication the information is second hand and based on no personal knowledge of the applicant’s circumstances.”

(The Tribunal seems to have overlooked Lionel Dabarera’s claim that he had returned home for two weeks in 1996 and campaigned for the UNP in relation to the provincial elections.)

18                  In relation to the letter from Festus Perera, the Tribunal said:

“This is a vague and general statement, and the writer gives no indication of any intimate knowledge of the applicant. It makes no mention of the roles the applicant claimed to play. In addition the Tribunal finds this very odd as the applicant had claimed to be the chief organiser of the district in Mr Perera’s electorate.”

19                  The Tribunal found it significant that neither writer referred to Lionel Dabarera’s claim regarding the documents suspected to be in the family home, which allegedly led to his home being raided by the police and the thugs of Mr Fernandopulle.

20                  The Tribunal referred to what it called the economic situation, making findings to the effect that Sri Lanka is a very poor country. It referred to Lionel Dabarera’s evidence that he worked for more than two and a half years in Japan for a high salary and that he was unemployed after his business closed down until he left Sri Lanka. The Tribunal said:

“The Tribunal places weight on this period of unemployment when considering the applicant’s claims for reasons to come to Australia.”

21                  The Tribunal quoted material (both obtained by the Tribunal using its own resources and contacts and supplied by Lionel Dabarera) concerning the general political situation in Sri Lanka, the extent to which legal protection was available there in relation to violation of human rights of individuals and the harassment of UNP supporters by government.

22                  The Tribunal then referred to Lionel Dabarera’s claims of fear of harm by supporters of the PA, the physical attack in 1994 leading to hospitalisation, the shooting at and vandalising of his house, the failure of the police to take action and the impotence of Mr Perera because he was in opposition. It said:

“The Tribunal finds these claims to be implausible. … It is implausible, if the applicant was mistreated by PA supporters following the 1994 elections, or indeed in early 1995, so that he was in hospital, that he had not lodged a complaint with the police especially as his electorate was a long standing UNP electorate … For the above reasons, the Tribunal concludes that he did not lodge a complaint with the police, and the Tribunal finds that he had no reason to do so, that is, he was not assaulted so that he required hospitalisation, nor was he threatened with death. As the Tribunal does not accept that this incident occurred, it does not accept that his house was shot at and vandalised.”

(Nowhere did the Tribunal refer to the fact that Patrick Dabarera gave evidence in his hearing, supporting Lionel Dabarera’s claim that he was hospitalised.)

23                  On the basis of the independent country information on which it relied, the Tribunal rejected Lionel Dabarera’s claim that PA supporters took revenge against UNP supporters. It found that violence associated with elections was unorganised, localised and short-lived, and confined to the heat of the immediate election period. It did not accept that election incidents result in ongoing vendettas from police or from the government to inflict harm on members or supporters from the UNP.

24                  The Tribunal found inconsistencies between Lionel Dabarera’s evidence at the hearing about his activities in 1988, 1989 and 1990, and his complaints to the police about his political opponents making threats against him, on the one hand, and his earlier statement that he had not experienced any difficulties prior to 1991. It also said:

“He also claimed in the February 1998 submission and at the hearing that these people had threatened to pay him back during the 1994 election campaign, and that he went into hiding for fear of them also. Based on the above inconsistencies and on the independent country information regarding the lack of paybacks, the Tribunal finds that these claims of the applicant are not credible.”

25                  The Tribunal found that Lionel Dabarera’s action in returning home in 1996 to campaign, and to test whether he would experience trouble, was “not the action of a person who alleges the trouble he seeks to avoid is [the] threat of death.”

26                  In relation to the supposed documents incriminating Mr Fernandopulle, the Tribunal said:

“In his further submission to the Tribunal of 15 January 1998, the applicant claimed that when he was in his country he received valuable information about the atrocities committed by Mr Fernandopulle and other senior politicians of the PA, and after he left the country their supporters ransacked his house looking for incriminating documents. He cannot return to Sri Lanka because of this and if he does return he will be killed. This claim is vague and lacking in detail. As explained below, the Tribunal finds that it is too significant to have been overlooked earlier and was provoked by the rejection of his claim by the department.”

27                  In relation to Lionel Dabarera’s claims about his friends and the supposed documents, the Tribunal said:

“He said that he did not mention this in his application as he thought it was irrelevant. His application was lodged on 24 April 1997. However as he linked his leaving the country to what Arthur had allegedly suffered, the Tribunal finds that his explanation that he thought this was irrelevant is implausible. The Tribunal finds that his claims in this regard are not credible. The Tribunal finds that this claim was too significant to have been overlooked earlier and was provoked by the rejection of his original claim in which he stated that he left his country as he was persecuted because of his political activities connected with election campaigning.

…

At the hearing he added a claim that a witness in a court case against Mr Fernandopulle had said that Arthur had the documents, so it was known that he had them … The Tribunal finds that this claim is too significant to have been overlooked earlier, is contrived, and was provoked by the rejection of his claim. For these reasons the Tribunal does not accept the claim that evidence was given in a court case that Arthur was in possession of these documents.”

(Lionel Dabarera contends that this should not be seen as adding a claim, but as providing details in response to questioning at the hearing.) The Tribunal continued:

“Given that the Tribunal does not accept these claims, it also does not accept firstly that the police and then the government thugs searched the homes of the applicant and his friend and secondly that any threats were made by them against the applicant for this reason or reasons.”

(Lionel Dabarera’s counsel noted that the original application was made in April 1997, almost a year before the events involving Arthur occurred and that the events had no obvious connection with the applicant until March 1998.)

28                  The Tribunal also said:

“The applicant has made only general, unspecified claims lacking in detail as to why Mr Patrick and Mr Vanderlan threatened his life such that he had to obtain a false passport and leave the country. This claim differs from his original claim, and he has not explained why he has not made these claims earlier, including the claims about the documents relating to Mr Fernandopulle. The Tribunal finds that all such claims were too important to have been overlooked in his lengthy and detailed original claim, and were provoked by the rejection of his original claim for a protection visa. The Tribunal finds this claim is not credible.

…

The applicant claimed that Mr Fernandopulle is seeking to discover documents adverse to himself, which Mr Fernandopulle allegedly believes that the applicant possesses. The Tribunal finds this claim is implausible. Neither the applicant nor his friend Arthur has seen the alleged documents. There is no clear information on the alleged content of the alleged documents. It is not credible that if such documents existed and were in the hands of political opponents that innumerable copies would not have been made. This could be done for the purposes of security for those who possessed them or for use against Mr Fernandopulle and other PA politicians. It would be pointless for Mr Fernandopulle to be assaulting the applicant and continually searching his house. In addition, given the nature of allegations made in the normal course of Sri Lankan politics … if such documents existed, they would in the normal course of events have been available for use for political purposes against Mr Fernandopulle and his fellow party members. Nothing of this type has occurred. For all the above reasons the Tribunal finds this claim regarding Mr Fernandopulle is not credible.

…

Since the applicant’s original claims were rejected by the delegate, the Tribunal finds, based on the above evidence and findings, that the applicant has attempted to exaggerate and progressively embellish and alter his claims to meet the circumstances as they arose. The reasons he claimed to flee his country have expanded and developed over time, as explained above. For all the above reasons the Tribunal finds that the applicant is not credible. It finds he is not a witness of truth.

…

If his political opponents wished to kill him, they had ample opportunity to do so before he left Sri Lanka. … [H]e could have easily been traced and found if his alleged enemies wished to do so.

…

Given that the Tribunal does not accept that the applicant was ever harassed by PA politicians in the way he claimed, or that he was assaulted and hospitalized, or that he was harassed by PA supporters to the extent or in the manner he claimed, the Tribunal does not accept that his family are now still being harassed by them. The Tribunal has not accepted that the applicant was ever in hiding from the government politicians or political opponents, for the same reason.”

The claims made by Patrick Dabarera

29                  In a statement forming part of his application for a protection visa, Patrick Dabarera said:

“My entire family supported the United National Party and we took active role (sic) in our political activities. My elder brother Lionel’s involvements in politics, more importantly during the 1994 general election, subjected him to various harassment and hardship and as he could not take any further (sic), he fled the country to escape from persecution and to save his life.

The thugs of the ruling party of my country attacked our home and damaged our properties. As the police were influenced by the politicians of the ruling party, we were not helped by the police. This, (sic) helped our political opponents to take undue advantage and to cause us further harassment.

After my brother’s departure from Sri Lanka, the senior members of the UNP in our area invited me to act as the rural organiser for UNP for our area. Though I was reluctant to accept the above position, I could not refuse to (sic) the above request because of our area member of Parliament, Mr. Festus Perera.

In March 1997, I worked hard for the Divisional Council Elections. Due to my valuable services to our party, I was threatened by Mr. Vanderlan … to stop acting as a rural party organiser and … not to continue with my political activities with UNP … Mr. Vanderlan further threatened me that if I do not comply with his demand, I will be punished much more than my brother Lionel. Though I feared for the consequences, I continued to work for UNP.”

30                  He claimed to have been attacked by unknown armed people who threatened to kill him and others if they continued to campaign for the UNP. The attack was a severe assault, resulting in admission to hospital. The police declined to take a complaint or investigate, as it was a political incident. While Patrick Dabarera was in hospital, people went to his house and told his mother that they did not want him to live in the area. After his discharge from hospital, his mother requested him to leave the area and to live with an uncle. Patrick Dabarera returned home in June 1997 when he felt it was safe for him to return. He received subsequent threats but they were not serious.

31                  In March 1998, the police raided the house asking for documents supposed to have been in his brother’s possession. They searched the house. Then ‘thugs’ of Mr Fernandopulle also came looking for the documents. When they could not find the documents, they became angry and damaged many belongings and windows.

32                  In June 1998, after a UNP meeting at Festus Perera’s house, Patrick Dabarera was kidnapped, held for three days, questioned about documents relating to Mr Fernandopulle, severely tortured and threatened with death. Patrick Dabarera made a complaint to the police who did nothing about it.

33                  Prior to his hearing in the Tribunal, Patrick Dabarera provided two letters from politicians. The first was from Gamini Atukorale, dated 16 February 1999. It said that Patrick Dabarera:

“is from a well known U.N.P. family. He worked very hard for our party during last (sic) elections.

His family members informed me that he was faced with death threats from his political opponents, and a stay outside Sri Lanka would be beneficial to him.”

34                  The second letter was from Festus Perera, dated 2 February 1999. It said of Patrick Dabarera:

“It is correct that he worked wholeheartedly for the United National Party which lost the elections in 1997. Unfortunately, after the defeat of the U.N.P. in the Divisional Council Elections in 1997, certain people who supported the U.N.P. wholeheartedly became badly affected, as harassment was shooted (sic) against them and life became intolerable for them, thereby forcing them to flee the country.

This person referred to herein is one such person.”

35                  Patrick Dabarera also provided copies of the same newspaper articles and documents about the activities of politicians in Sri Lanka as were provided by Lionel Dabarera.

The reasons of the Tribunal in relation to Patrick Dabarera

36                  The Tribunal did not accept Patrick Dabarera’s claims of persecution. In its reasons for decision, it said:

“The Tribunal accepts that the applicant may have been a member of the UNP. The Tribunal accepts that the applicant may have suffered some harassment around the time of the 1997 elections, as this was common and localised. However it does not accept that he was subjected to any organised campaign by Mr Fernandopulle and his thugs, or persecution because of his political opinion. The Tribunal relies on the information in the independent country information … The Tribunal does not accept as credible the applicant’s claims as to the extent of his political profile or of the claimed harassment for all the reasons set out below.”

37                  In dealing with the letter from Gamini Atukorale, the Tribunal said:

“This information is vague, and it is not clear what elections are referred to. It displays no personal knowledge of the applicant, and does not mention the office he alleged he held. … The Tribunal finds this communication is vague
and the information it seeks to convey is second hand and based on no personal knowledge of the applicant’s circumstances.”

38                  In dealing with the letter from Festus Perera, the Tribunal said:

“This is a vague and general statement, and the writer gives no indication of any intimate knowledge of the applicant, which could have been expected, on the applicant’s claims. It makes no mention of the roles the applicant claimed to play in the writer’s electorate or of the office he claimed to have held. The Tribunal finds this very odd as the applicant had claimed to be a rural organiser of the district in Mr Perera’s electorate, to have attended party meetings in Mr Perera’s home, and also claimed to have been kidnapped on leaving such a party meeting. The Tribunal notes that this letter does not bear the letterhead of Mr Perera himself but only the word ‘Parliament’.”

39                  The Tribunal then found that it was significant that neither letter writer referred to Patrick Dabarera’s claims regarding the supposed documents relating to Mr Fernandopulle. It said:

“The Tribunal finds that these letters are based on no direct knowledge of the applicant’s position and in no way support his claims.”

40                  The Tribunal referred to what it called the economic situation, making findings to the effect that Sri Lanka is a very poor country. It referred to Patrick Dabarera’s evidence that he was unemployed from the time he was allegedly kidnapped until he left Sri Lanka. The Tribunal said:

“Although the applicant responded that he was not an economic refugee, the Tribunal places weight on the fact that he had this period of unemployment when considering his claims for reasons to come to Australia.”

41                  The Tribunal quoted material (both obtained by the Tribunal using its own resources and contacts and supplied by Patrick Dabarera) concerning the general political situation in Sri Lanka, the extent to which legal protection was available there in relation to violation of human rights of individuals and the harassment of UNP supporters by government.

42                  As to the claim that Patrick Dabarera had been a rural organiser for the UNP, the Tribunal said:

“As the Tribunal put to the applicant, it finds it implausible that he would take on the political work of Rural Organiser for the UNP in his district in 1997 if his brother Lionel had been forced to flee the country under threat of death for doing the same job for the Party. In such circumstances the Tribunal does not find plausible the reason the applicant gave for allegedly taking on the role, namely that Mr Perera asked him to do so. … Given that the UNP is the best organised and largest political party in Sri Lanka, it is not plausible that Mr Perera would find it necessary to request a person as politically inexperienced as the applicant, who is also the brother of a person who has allegedly attracted such serious adverse attention of the opposition, to take on an important role in his electorate. The Tribunal does not accept that the applicant was politically active in the 1994 election as claimed. This claim was not made in a timely fashion and the Tribunal finds that it was too significant to have been overlooked earlier and was provoked by the Department’s rejection of his claim.”

43                  As to evidence given by Patrick Dabarera that Lionel Dabarera had sent a parcel to him from Australia for his birthday, resulting in a phone call from a politician to the family home, enquiring about Lionel Dabarera, the Tribunal said:

“The Tribunal finds that it is implausible that the applicant’s brother Lionel would send a parcel to the applicant through the post on which he gave his name and return address if he had left the country in fear of his life and thus draw adverse attention to the recipient as well as revealing where Lionel himself was hiding. The Tribunal does not find plausible the applicant’s reason for making this claim for the first time at the hearing, as he had made earlier submissions to the department and to the Tribunal. The Tribunal finds that this claim was too significant to have been overlooked earlier and was provoked by the rejection of his claim. The Tribunal does not accept the claim that this incident occurred for all the above reasons.”

44                  As to Patrick Dabarera’s claim of assault and hospitalisation, the Tribunal said that Patrick Dabarera:

“has provided no information such as a hospital or medical report to support this claim although the delegate suggested that such proof could be obtained.”

45                  It went on to say:

“The Tribunal has found that the applicant does not have a political profile at the level claimed for all the reasons set out above and also below. The letters from the 2 politicians do not display any actual knowledge of any political activities such as he has claimed. For this reason it does not accept that he attracted the adverse interest of political opponents because of his alleged political activities. The Tribunal has no evidence before it to enable it to accept that he was hospitalised following an assault by political opponents. Based on the independent country information … it does not find plausible his reasons for the police to allegedly fail to accept his complaint, namely that the officer in charge had said that he had no power to investigate political incidents. For the above reasons the Tribunal does not accept that the applicant made any complaints to the police. In addition, it is implausible that if the applicant was mistreated by PA supporters prior to the 1997 elections so that he was in hospital and threatened with death, that the police were not interested especially as his electorate was a long standing UNP electorate, and its member, the UNP politician Mr Perera, remained in Parliament.

As the Tribunal does not accept that the applicant had a political profile of the level claimed, and also because the letters from the 2 politicians have been found by the Tribunal to be not based on any direct knowledge of the applicant’s position and to in no way support his claims, the Tribunal does not accept that the applicant was the rural organiser for the electorate. The applicant alleged that he received threats from Mr Vanderlan … when he worked hard for his party in March 1997. As the Tribunal finds that the applicant was not the rural organiser and did not have the political profile claimed, the Tribunal finds, for these reasons, that he did not have a profile to be of sufficient interest to Mr Vanderlan, and the Tribunal does not accept that the applicant was of adverse interest to him.”

46                  The Tribunal then expressed findings that Patrick Dabarera had claimed to have engaged in activities that were not consistent with fear of political persecution. These activities were: travelling to Singapore and Indonesia in December 1997 on his own passport and returning to Sri Lanka; returning home from his uncle’s place after three months, in June 1997, and attending party committee meetings; and not moving away from his home after the alleged kidnapping and after he said he had decided to leave the country. The Tribunal went on:

“Since the applicant’s original claims were rejected by the delegate, the Tribunal finds, based on the above evidence and findings, that the applicant has attempted to exaggerate and progressively embellish and alter his claims to meet the circumstances as they arose. The reasons he claimed to flee his country have expanded and developed over time, as explained above. The Tribunal finds that these claims are too important to have been overlooked earlier and were provoked by the rejection of his application. For all the above reasons the Tribunal finds that the applicant is not credible. It finds he is not a witness of truth.

The Tribunal does not accept as credible the applicant’s claims as to the extent of his political profile. He originally made no claims of political activity prior to 1997. At the hearing, he claimed for the first time to have been politically active in 1994 when he claimed to have assisted his brother. He did not claim persecution or significant harassment of himself at that time, and merely claimed some abuse. The applicant has provided no evidence that his brother Lionel was engaged in political work on behalf of the UNP in relation to the 1994 elections. Neither letter from the UNP politicians lodged by the applicant mentioned that his brother had been active on behalf of the Party and had been forced to flee … Mr Festus Perera MP, for whom Lionel was claimed by the applicant to be an organiser, does not mention Lionel or any family member of the applicant as being UNP supporters or workers … On the evidence before it, the Tribunal does not accept that Lionel was engaged in political work on behalf of the UNP to the extent alleged by the applicant. For this further reason, namely that the Tribunal does not accept that Lionel was employed in political work to the extent alleged for the UNP as claimed by the applicant, the Tribunal does not accept that the applicant was engaged in political work at that time by assisting Lionel in 1994. In addition, when the applicant claimed that Lionel had not left the country until 1997, the delegate found that this action of Lionel was not the action of a person in fear of his political opponents. The Tribunal concludes that Lionel does not have the profile alleged for all the above reasons.”

47                  The Tribunal referred to evidence concerning violence associated with elections in Sri Lanka. It concluded:

“the evidence is that such violence is sporadic, and occurs only at the time of elections. However, the Tribunal does not accept that any of the independent evidence indicates that election incidents result in on-going vendettas from police or from the government to inflict harm on members or supporters from the UNP.

The Tribunal does not accept that the applicant’s modest political profile would have been sufficient to lead to serious threats being made on his life nor would it be sufficient to cause him to face mistreatment upon return to Sri Lanka.”

48                  The Tribunal then dealt with Patrick Dabarera’s claims about the supposed documents relating to Mr Fernandopulle. It said:

“At the hearing the applicant provided for the first time claims that linked his brother Lionel to the alleged documents, (alleged to be adverse to PA politicians and in particular to Mr Fernandopulle), being sought by Mr Fernandopulle. He claimed that Lionel had a friend called Arthur who was believed to have the documents, and that Arthur was alleged to have been seen by another person, John, allegedly handing the documents to Lionel, and that John reported this to Mr Fernandopulle. These claims are vague, lacking in detail and the alleged information is secondhand (sic). The applicant was unable to say when these alleged events took place. The Tribunal does not accept the applicant’s reason for not mentioning these claims prior to the hearing. … The Tribunal finds this claim too significant to have been overlooked earlier and was provoked by the rejection of his claim by the Department. The Tribunal does not accept the claim that these incidents occurred, that is that Lionel was seen receiving documents from Arthur, and that this alleged activity was reported to Mr Fernandopulle, for all the above reasons.

… The applicant claimed that Mr Fernandopulle is seeking to discover documents adverse to himself, which Mr Fernandopulle allegedly believes that the applicant possesses. The Tribunal finds this claim is implausible. … It is not credible that if such documents existed and were in the hands of political opponents that innumerable copies would not have been made. This could be done for the purposes of security for those who possessed them or for use against Mr Fernandopulle and other PA politicians. It would be pointless in these circumstances for Mr Fernandopulle to be threatening the applicant and continually searching his house. … if such documents existed, they would in the normal course of events have been available for use for political purposes against Mr Fernandopulle and his fellow party members. Nothing of this type has occurred. For all the above reasons the Tribunal finds this claim regarding Mr Fernandopulle is not credible.

As the Tribunal has not accepted these claims it does not accept that Mr Fernandopulle and his thugs or the police raided the applicant’s home seeking the documents. It also does not accept that the applicant was kidnapped by persons seeking information about the documents. As a result, it does not accept that he complained to the police who failed to put the complaint in the station complaint book. It does not accept that he received threatening phone calls he claimed to have received after the abduction, or that vehicles stopped outside his home and stones were thrown. It does not accept that the applicant’s mother has informed him that ‘they’ are looking for the documents and are still after him.”

49                  The Tribunal also found against Patrick Dabarera on his claims as to why he travelled to Australia on a false passport.

Submissions

50                  Counsel who appeared for both Lionel Dabarera and Patrick Dabarera put a number of submissions in relation to the cases of both. These submissions may be summarised as follows:

·        The Tribunal erred in law in failing to speculate as to the possibility of political violence in relation to future elections in Sri Lanka and as to what effect such violence might have on each applicant. It made no finding as to the prospects of outbreaks of violence occurring or of such outbreaks affecting persons holding political opinions allied with the UNP. It thereby abdicated its task of prediction as to the foreseeable future. It also failed to make any finding as to what was likely to happen if the applicants should return to Sri Lanka.

·        The Tribunal did not deal with the claim that each applicant was a member of a well-known UNP family, commenting only in relation to the letters from Gamini Atukorale that each “merely” stated the applicant concerned was from a well-known political family. It should have considered each case on the basis that the relevant applicant was a member of a particular social group, and have considered whether each applicant had a well-founded fear of persecution by reason of such membership.

·        The Tribunal took no account of the prospect that each applicant might express political opinions or engage in political activities in the future. In particular, Patrick Dabarera gave evidence that he might do so in the future.

·        The Tribunal failed to evaluate the claims concerning the supposed documents relating to Mr Fernandopulle on the basis put by the applicants. This was that the documents did not exist, but that Mr Fernandopulle and his thugs appeared to believe that they did. Instead, the Tribunal took it upon itself to decide whether such documents were likely to exist at all. The proposition that the thugs were acting reasonably, or on a rational basis, was not raised by the applicants.

·        The Tribunal treated the applicants as if they claimed to fear violence from the police or the government, when actually they claimed to fear violence from thugs who had political connections, and the police or government would not, or could not, offer effective protection. The Tribunal therefore failed to consider the case put by each applicant.

·        The Tribunal arbitrarily and unfairly failed to consider or refer to any of the evidence put forward by Patrick Dabarera when it considered Lionel Dabarera’s case, or by Lionel Dabarera when it considered Patrick Dabarera’s case. There was no indication that the Tribunal would refuse to take into account the evidence it had heard in one case when it considered the other in this manner. In Patrick Dabarera’s case, the Tribunal even relied on a finding in relation to Lionel Dabarera, made by the delegate whose decision the Tribunal was reviewing, but chose to ignore the evidence given by Lionel Dabarera in his own case before the Tribunal. The effect was to deny each applicant his right to call evidence in support of his own case and to fail to observe procedures required by the Migration Act to be observed in connection with the making of the decisions.

·        In relation to Lionel Dabarera, the Tribunal wrongly found there was “no evidence” to enable it to accept that Lionel had been hospitalised, when it had Lionel Dabarera’s own evidence. It was wrong to say that it was not able to accept Patrick’s evidence without corroboration. In any event, it had evidence from Patrick Dabarera, in his case, to support Lionel Dabarera’s evidence. In Patrick Dabarera’s case, a fact found by the Tribunal, that there was no evidence of Lionel Dabarera’s involvement in politics in 1994, was a fact that did not exist, as Lionel Dabarera had given that evidence in his own hearing.

·        The Tribunal failed to perform its task of predicting the reasonably foreseeable future because it relied on country information at least fifteen months out of date. The situation in Sri Lanka is fluid, especially around election times, and more recent developments should have been examined.

·        The Tribunal made its findings on the existence of facts that did not exist. It assumed that the applicants were required to articulate the whole of their cases in a “timely” manner, or at least before the hearing, when the very purpose of the hearing is to allow the applicant to give evidence, and for the Tribunal to ask questions.

·        In relation to Lionel Dabarera, there was no evidence to support a finding of fact that he displayed a lack of knowledge of the political party in power in the taxi wars electorate (an issue discussed by the Tribunal), whereas Lionel Dabarera had given evidence as to this. Similarly there was no evidence to support the finding of fact that Lionel Dabarera displayed a lack of knowledge of the change of election dates in 1996, when he had given evidence of this.

·        The Tribunal’s decisions were affected by actual bias, within the meaning of s 476(1)(f) of the Migration Act. In particular, in Patrick Dabarera’s case, whenever corroboration was lacking, the evidence was found incapable of acceptance. When it was not accepted, Patrick Dabarera was regarded as unreliable. This is circular reasoning, indicative of prejudgment. The Tribunal assumed that, whenever evidence was given that it regarded as significant but which had not been put before the Tribunal in a “timely” way, this showed Patrick had exaggerated or embellished his claim. Yet, when he was able to answer detailed questions, eg about the policies of the UNP, the Tribunal made no findings on his knowledge. This bears the hallmarks of an attempt to trap Patrick Dabarera, rather than to ask him questions. Because there was no corroborating evidence for some aspects of the claim and Patrick Dabarera answered other questions with additional information, the Tribunal found he was not a witness of truth. The Tribunal must have prejudged Patrick Dabarera as there was no reason to disbelieve all uncorroborated or additional evidence. The Tribunal placed weight on extraneous and prejudicial matters, which supports an inference of bias. It suggested that Patrick Dabarera did not work for the UNP because there may have been other volunteers to do the work. It was critical of Lionel Dabarera for his inability to recount exact details about
a particular court case of comparatively little significance to his claims. It placed weight on the fact that both applicants were unemployed before leaving Sri Lanka.

The grounds of review

51                  Section 476 of the Migration Act is in the following terms:

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

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

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

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

(d) that the decision was an improper exercise of the power
conferred by this Act or the regulations;

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

(f) that the decision was induced or affected by fraud or by actual
bias;

(g) that there was no evidence or other material to justify the
making of the decision.

(2) The following are not grounds upon which an application may be
made under subsection (1):

(a) that a breach of the rules of natural justice occurred in
connection with the making of the decision;

(b) that the decision involved an exercise of a power that is so
unreasonable that no reasonable person could have so
exercised the power.

(3) The reference in paragraph (1)(d) to an improper exercise of a power
is to be construed as being a reference to:

(a) an exercise of a power for a purpose other than a purpose for
which the power is conferred; and

(b) an exercise of a personal discretionary power at the direction
or behest of another person; and

(c) an exercise of a discretionary power in accordance with a rule
or policy without regard to the merits of the particular case;

but not as including a reference to:

(d) taking an irrelevant consideration into account in the exercise
of a power; or

(e) failing to take a relevant consideration into account in the
exercise of a power; or

(f) an exercise of a discretionary power in bad faith; or

(g) any other exercise of the power in such a way that represents
an abuse of the power that is not covered by paragraphs (a) to
(c).

(4) The ground specified in paragraph (1)(g) is not to be taken to have
been made out unless:

(a) the person who made the decision was required by law to
reach that decision only if a particular matter was established,
and there was no evidence or other material (including facts of
which the person was entitled to take notice) from which the
person could reasonably be satisfied that the matter was
established; or

(b) the person who made the decision based the decision on the
existence of a particular fact, and that fact did not exist.”

52                  The ground specified in subs (1)(a) has undergone something of a transformation. At one time, it was thought that the obligation of the Tribunal, found in s 420(2)(b), to act according to substantial justice and the merits of the case, provided a basis for contending that a procedure required by the Migration Act had not been observed. See Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300. The High Court of Australia in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 made it clear that the obligation in s 420(2)(b) is not a procedure required to be observed, for the purposes of s 476(1)(a). It was then thought that the requirements imposed by s 430(1) on the Tribunal to prepare a written statement that sets out its decision, the reasons for its decision and its findings on any material question of fact, and refers to the evidence or other material on which the findings of fact were based, contained a procedure required by the Act, so that a failure to make findings on issues raised in a review was enough to establish the ground in s 476(1)(a). See Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 (2000) 98 FCR 469. The High Court of Australia in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 expressly overruled Singh. At [73] - [75], McHugh, Gummow and Hayne JJ (with whom Gleeson CJ expressed his agreement) said:

“It is, of course, essential to begin by considering the statutory scheme as a whole. To that extent the submission is right. On analysis, however, the asserted duty to make findings may be simply another way of expressing the well-known duty to take account of all relevant considerations. 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. In that regard it is important to recall, as Brennan J said in Attorney-General (NSW) v Quin [(1900) 170 CLR 1 at 35-36]:

The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison [1 Cranch 137 at 177; 5 US 137 at 177 (1803)]: ‘It is, emphatically, the province and duty of the judicial department to say what the law is.’ The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the
process of making the particular findings of fact upon which the decision-maker acts.

As was pointed out in argument, applicants for protection visas often, but not invariably, claim that they have been subject to persecution. In Minister for Immigration and Ethnic Affairs v Guo [(1997) 191 CLR 559 at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ], six members of the court said:

In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

If the tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past). It is not accurate, however, to say that the tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well-established limits. If it is not intended to have that effect, it is not useful to formulate the duty in that way. Rather, the relevant inquiry remains whether the tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations.”

53                  Thus, the focus of attention when the Tribunal fails to make findings of fact has been switched from the ground specified in s 476(1)(a) to that specified in s 476(1)(e). Indeed, that ground is central to most applications for judicial review of decisions of the Tribunal. The grounds specified in s 476(1)(b) and (c) are rarely raised in such applications, because it is plain from s 411 that the Tribunal has jurisdiction to review a decision to refuse to grant a protection visa, in the case of an applicant who is in the migration zone when the decision is made and in respect of whom the Minister has not issued a conclusive certificate. The ground specified in s 476(1)(d) is restricted by s 476(3) to circumstances which arise rarely. It is rare that an allegation of fraud is made, raising the ground specified in s 476(1)(f), but allegations of actual bias are made occasionally. The test of actual bias is very stringent. It is to be distinguished from the test for bias normally applied in the case of courts and statutory tribunals, which is generally described as the reasonable apprehension test. See: Abebe v Commonwealth of Australia [1999] HCA 14 (1999) 197 CLR 510; Re Minister for Immigration & Multicultural Affairs; Ex parte Epeabaka[2001] HCA 23 (2001) 179 ALR 296 at [34] and [96]; Sun Zhan Qui v Minister for Immigration & Multicultural Affairs (1997) 81 FCR 71 at 126 and 134 per Burchett J and 134 – 136 per North J; and Thevendram v Minister for Immigration & Multicultural Affairs [2000] FCA 1910. The “no evidence” ground, specified in s 476(1)(g) is also limited by the provisions of s 476(4). It is rare to find a case in which an applicant for judicial review seeks to make out the ground on the basis of subs (4)(a). There are numerous cases, however, relying on subs (4)(b). It is now established that the “no evidence” ground is only made out if the Tribunal has made a finding of a particular fact, there is evidence on which the Court can find that the particular fact did not exist, and the Tribunal has based its decision on that fact. A decision may be based on a particular fact when the particular fact is a step in a process of reasoning leading to the Tribunal’s conclusion. When the particular fact is merely one of many relied on by the Tribunal to support its conclusion, it is much more difficult to say that the non-existence of the particular fact undermines the whole process of reasoning leading to the Tribunal’s conclusion. The principles applicable have been discussed recently by a Full Court in Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 at [34] – [40] and applied in Al-Asam v Minister for Immigration & Multicultural Affairs [2001] FCA 1361 at [41]. In such a case, the metaphor of the net, with one strand missing, has been used, to distinguish the situation from a metaphorical chain with one link missing. See Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 962 at [26] and Vichlenkova v Minister for Immigration & Multicultural Affairs [1999] FCA 1338 at [17] per Heerey J with whom Carr and Tamberlin JJ agreed. In Kathiresan v Minister for Immigration & Multicultural Affairs (Federal Court of Australia, Gray J, 4 March 1998, unreported), the metaphor used was that of a house of cards, which collapses when one card is removed.

54                  The statutory scheme makes it plain that the Court’s powers on an application for judicial review of a decision of the Tribunal do not extend to an examination of the merits of a case. The determination of the facts is intended to be the responsibility of the Tribunal. Only when one or more of the grounds in s 476 can be made out is it open to the Court to exercise any of the powers in s 481(1), including the power to set aside a decision or part of a decision and to refer the matter back to the person who made the decision for further consideration, subject to any direction the Court may give. Comparison of s 476 with the grounds of review ordinarily available pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 discloses that those in s 476 of the Migration Act are very much narrower. The fact that the Tribunal has engaged in illogical reasoning or has made a finding of fact that is not in accordance with the evidence, is not a ground for judicial review. See Minister for Immigration & Multicultural Affairs v Al-Miahi [2000] FCA 744 at [34].

55                  The Tribunal does not exercise any of the judicial power of the Commonwealth. It does not determine controversies between parties. The Minister does not appear before it to lead evidence or make submissions in opposition to an application to review a decision of a delegate of the Minister. The Tribunal is to operate in a way which is inquisitorial, to a limited degree. Its role is not that of a contradictor. See Abebe v Commonwealth of Australia [1999] HCA 14 (1999) 197 CLR 510 at [187]. Section 420(1) of the Migration Act requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. By s 420(2)(a), the Tribunal is not bound by technicalities, legal forms or rules of evidence.

56                  Section 424(1) of the Migration Act provides:

“In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.”

57                  The use of the verb “get” is perhaps unfortunate. This subsection applies to a process whereby the Tribunal of its own motion seeks to obtain information other than that supplied by an applicant for review. See: Applicant “F” v Minister for Immigration & Multicultural Affairs [2001] FCA 304 at [31] – [32]; Win v Minister for Immigration & Multicultural Affairs[2001] FCA 56 (2001) 105 FCR 212 at [15];and Li v Minister for Immigration & Multicultural Affairs [2000] FCA 19 (2000) 96 FCR 125 at [62]. Section 424A requires the Tribunal to give to an applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review, to ensure as far as is reasonably practicable that the applicant understands why it is relevant to the review and to invite the applicant to comment on it. By s 425, the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, unless the Tribunal decides the review in the applicant’s favour on the material before it, the applicant consents to a decision without appearance, or the applicant has failed to respond to an invitation to provide additional information or to comment on information given under s 424A. Section 427(1) provides as follows:

“For the purpose of the review of a decision, the Tribunal may:

(a) take evidence on oath or affirmation; or

(b) adjourn the review from time to time; or

(c) subject to sections 438 and 440, give information to the applicant
and to the Secretary; or

(d) 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.”

58                  Section 427(2) provides as follows:

“The Tribunal must combine the reviews of 2 or more RRT-reviewable decisions made in respect of the same non-citizen.”

59                  Counsel for Lionel Dabarera and Patrick Dabarera contended that this subsection required the Tribunal to conduct the two reviews the subject of these proceedings as if they were one review. This was on the basis that evidence relating to the activities of Lionel Dabarera was relevant to the issues in the case of Patrick Dabarera. The argument was that this connection caused the two reviews to be “in respect of the same non-citizen”, ie Lionel Dabarera. Counsel pointed to s 48A of the Migration Act, which prohibits a further application for a protection visa after a refusal of such a visa, unless the Minister makes a determination pursuant to s 48B that s 48A does not apply. He argued that there could not be more than one application by any one person, so that s 427(2) could not relate to two such applications. The use of the phrase “in respect of” rather than the word “by” was also called in aid.

60                  I am unable to agree with this submission. Section 427(2) was present in the Migration Act before s 48A was added by amendment. Section 48A does not of itself prevent more than one application by the same person; it only prevents a further application after a refusal. It is possible that a person may make more than one application for a protection visa prior to the refusal of one such application. The use of the phrase “in respect of” can perhaps be explained by the fact that s 427(2) is in similar terms to s 363(2), which gives the Migration Review Tribunal a discretionary power to combine the reviews of two or more reviewable decisions made in respect of the same person. The Migration Review Tribunal might well deal with reviews of decisions refusing to grant visas when applications have been made by two or more different persons, seeking to obtain visas for one person. In my view, the two applications for review that were before the Tribunal in the present case were not “made in respect of the same non-citizen”. The Tribunal was not obliged by s 427(2) to combine them.

61                  With these conclusions as to the law in mind, I turn to consider the issues raised by counsel for the applicants.

Looking to the future

62                  Counsel for the applicants argued that the Tribunal made an error of law when it characterised election-related violence in Sri Lanka as “sporadic” and as “unorganised, localised and short lived”. The argument was that the Tribunal was obliged to consider whether, in the future, there was a real chance that the applicants would suffer persecution for one or more of the reasons referred to in the Convention. Thus, if it were the case that the political opinions, and consequent political activities, of the applicants might lead to them suffering violence, even if that violence should only occur around election times, then the Tribunal was bound to find that their fear of persecution on this ground was well-founded. It
was argued that the Tribunal failed to consider this issue, and thereby abdicated its function of considering whether the applicants faced a real chance of persecution.

63                  The findings referred to were made in the context of the Tribunal’s evaluation of what had occurred in the past. Any claim that the applicants made that their fear of persecution by reason of their political opinions was well-founded was necessarily based on the proposition that they had suffered persecution in the past. As a matter of fact, the Tribunal rejected their evidence and found against them on this issue. It followed that, if the applicants had not been persecuted in the past by reason of their political opinions, there was no basis for saying that there was a real chance that they would be so persecuted in the future. In following this train of reasoning, the Tribunal was not abdicating its function of looking to the future.

Membership of a particular social group

64                  Counsel for the applicants argued that the letter in each case from Gamini Atukorale, describing each applicant as being from a well-known political family gave rise to an issue whether each applicant had a well-founded fear of persecution by reason of membership of a particular social group. In describing each letter as “merely” stating that the applicant concerned was from such a family, the Tribunal failed altogether to deal with this issue.

65                  Again, it must be said that the Tribunal found against both applicants as to whether they had suffered persecution in the past. On the basis of this finding, the Tribunal was of the view that there was no real chance that either applicant would suffer persecution in the future. There was therefore no occasion for the Tribunal to consider possible reasons for persecution. Given the Tribunal’s findings, possible reasons were irrelevant.

Possible future political activities

66                  The same can be said of the argument that the Tribunal failed to take account of the prospect that each applicant might express political opinions or engage in political activities in the future. The Tribunal was asked to assess the future prospects by reference to what had happened in the past. Having found against the applicants as to what had happened in the past, the Tribunal was not obliged to assume that circumstances would be different in the future.

The Fernandopulle documents question

67                  The Tribunal discredited the claims of the applicants on this issue by reference to a scenario that it created. It supposed that the documents said to be adverse to Mr Fernandopulle actually existed and that, on that basis, there would have been copies of them. On that theory, there would have been no point in searching the house of Lionel Dabarera for the documents. This was not the case put by the applicants. Their case was that no such documents existed, but that Mr Fernandopulle and his thugs thought that they did and that Lionel Dabarera had them. Counsel for the applicants therefore argued that the Tribunal erred in law by failing to take into account a relevant consideration (the way in which the applicants put their case) or, alternatively, based its decision on a fact that did not exist (the existence of actual documents adverse to Mr Fernandopulle).

68                  The issue as to any documents relevant to Mr Fernandopulle was an issue of fact. The Tribunal dealt with it as such. It is true that it found the applicants’ evidence about this issue to be “implausible” on a basis that the Tribunal invented. That does not turn a question of fact into a question of law. As I have said, if the Tribunal engages in illogical reasoning, that does not provide a ground for judicial review. Nor can it be said that the Tribunal based its decision on the nonexistent fact. The issue of the supposed Fernandopulle documents was only one of many issues on which the Tribunal separately found against each applicant. There is nothing to show that either decision would have been different if the Tribunal had not taken the view that it did about the Fernandopulle documents.

The source of the violence feared

69                  Counsel for the applicants argued that the Tribunal failed to consider the case put by each applicant. It treated the applicants as if they claimed to fear violence from the police or the government when their real claim was that they feared violence from thugs with political connections and the police and the government could not, or would not, provide effective protection. This argument mischaracterises the findings of the Tribunal. The Tribunal discussed in some detail the evidence of each applicant as to their claims of actual and threatened violence from thugs. It is clear that the Tribunal understood the way in which each applicant’s case was being put. Unfortunately for the applicants, the Tribunal rejected their claims as a matter of fact. The attempt to overturn the Tribunal’s decision on this basis is an attempt to have the Court engage in further merits review of the applicants’ cases.

Separate treatment of the cases

70                  As I have said, although the two applications for review by the Tribunal were made approximately one year apart, they were heard on the same day by the same tribunal member. It was clear that they were separate matters in the Tribunal files. The solicitor acting for both applicants treated them as such, corresponding with the Tribunal separately in relation to each matter, often in the same or similar terms. When the hearings took place, the solicitor acting for the applicants did not expressly invite the Tribunal to consider the evidence of one applicant in relation to the case of the other. The Tribunal did not ask him, and did not ask either applicant, if the evidence of one applicant was to be taken into account in considering the application for review of the other applicant. Nothing was said about the subject at all.

71                  It is reasonable to suppose that the purpose of listing on the same day, before the same Tribunal member, two cases that were lodged at such disparate times was that the Tribunal member would be better able to evaluate the claims of one applicant with the benefit of the evidence of the other applicant. Otherwise, there can be no explanation for the choice of that listing procedure. In the circumstances, it was reasonable for the applicants, and their solicitor, to assume that the Tribunal would take account of one brother’s evidence in relation to the other brother’s case. At least, that was a reasonable assumption when the Tribunal did not say that it did not propose to follow that course.

72                  Apart from using identical wording in many instances in its reasons for decision in the two cases, in its consideration of the two cases the Tribunal treated them very strictly as separate. Thus, the Tribunal rejected Lionel Dabarera’s evidence that he had been hospitalised as a result of an assault, without taking into account Patrick Dabarera’s evidence corroborating his brother’s story in this respect. Similarly, in the case of Patrick Dabarera, the Tribunal made findings adverse to him about the extent to which Lionel Dabarera had been engaged in political work for the UNP. In this context, the Tribunal said:

“The applicant has provided no evidence that his brother Lionel was engaged in political work on behalf of the UNP in relation to the 1994 elections.”

In fact, Lionel Dabarera had provided considerable evidence in his case of his involvement in political activities on behalf of the UNP at that time. It is apparent that the Tribunal was taking care not to take into account the evidence given by one brother, in his case, in relation to the case of the other brother.

73                  In this way, I consider that the Tribunal acted wrongly. At the very least, it should have raised with the applicants and their representative the question whether they wished to have the evidence given in the other case taken into account. The problem is that I find myself unable to fit this conduct of the Tribunal within any of the grounds of judicial review for which s 476 makes provision. There is little doubt that the Tribunal was not acting fairly, or according to substantial justice, as required by s 420. These are not defects falling within the failure to observe required procedures in s 476(1)(a). Given that it is not bound by the rules of evidence, and that it has an inquisitorial role, the Tribunal could have taken into account the evidence it eschewed without difficulty. There is no provision of the Migration Act obliging it to do so, however. The Tribunal did not “get” the evidence of the other applicant on its own initiative and was therefore not obliged by s 424(1) to have regard to it. It did not fall short of its obligation under s 425 to invite each applicant to appear and present arguments. It is not possible to point to any provision of the Migration Act, or of any other legislation, that obliged the Tribunal to take into account the evidence on which it turned its back.

74                  The ground of error of law is not made out. It cannot be suggested that, in failing to take into account the evidence of the other brother in each case, the Tribunal failed to take into account relevant considerations in the sense in which that expression is used in the passage in Yusuf quoted above. Nothing in the nature of the jurisdiction exercised by the Tribunal under the Migration Act in relation to applications for protection visas suggests that it was obliged to take into account particular evidence available to it, as distinct from being obliged to consider the way in which each applicant put his case for a protection visa. Thus, there was no error of law of a kind identified in Yusuf.

75                  Nor could it be said that the Tribunal based its decision on any particular nonexistent fact simply by failing to consider evidence that was available to it. Although consideration of such evidence might have caused the Tribunal to come to a different conclusion on some of the facts, it cannot be said that there is any evidence before the Court to show that any fact it found in consequence of ignoring that evidence was a nonexistent fact.

76                  It is probable that the way in which the Tribunal acted led to a denial of natural justice to each of the applicants. Procedural fairness required that the Tribunal at least inform them that it did not propose to take into account the evidence in one case when considering the other, unless that evidence was formally placed before it. Denial of natural justice is specifically excluded from the grounds available under s 476 by s 476(2)(a).

Reliance on outdated information

77                  Counsel for the applicants complained that the Tribunal relied on information from various sources that was at least fifteen months old in making findings of fact about the situation in Sri Lanka. Because the situation was fluid, he argued, the Tribunal should have sought more up-to-date information.

78                  The Tribunal was using the information it obtained to evaluate the truth of the applicants’ claims as to what had happened to them. The information was relevant to that issue. Counsel was unable to point to any obligation on the Tribunal to seek out, or to act upon, more recent information.

The “no evidence” ground

79                  In three respects, counsel for the applicants attempted to argue that the Tribunal based its decision on nonexistent facts, and therefore that the “no evidence” ground in s 476(1)(g) was made out.

80                  First, the Tribunal in some instances rejected the evidence of the applicants as recent invention, saying that it would have expected the particular allegations to have been raised at an earlier stage if they had been true. Counsel for the applicants argued that this process amounted to a finding of fact that the applicants were required to articulate the whole of their cases prior to the hearing. That fact did not exist, because the whole point of a hearing is to enable an applicant for review to expand upon the material provided in his or her case. The applicants relied on Guden v Minister for Immigration & Multicultural Affairs [2000] FCA 236 (2000) 58 ALD 352. In that case, a Full Court concluded that the Tribunal had found a nonexistent fact, namely that the particular applicant for review was required to set out, in effect, the whole of his case which bore upon the issue of his persecution. That case can be distinguished from the present on the basis of fact. In the present case, the Tribunal made no such finding. Nothing that it said gave any indication that it expected that the applicants would have set out their whole case earlier. All it did was to evaluate some specific aspects of each applicant’s evidence, taking into account its view that the nature of the evidence suggested that, if true, it would have seen the light of day earlier. It was open to the Tribunal to adopt this course.

81                  Second, counsel for the applicants referred to instances in which the Tribunal said that there was “no evidence” of a particular fact when it had the evidence of the applicant concerned in relation to that fact. In so doing, the argument went, the Tribunal based its decision on the nonexistent fact that there was no evidence of the claimed fact that it rejected. Plainly, this argument cannot succeed. The use of the phrase “no evidence” was perhaps unfortunate when the Tribunal really meant no corroborating evidence. The use of the phrase “no evidence” cannot amount to a finding of fact that there was no evidence. In its context, the phrase was clearly used to indicate that the Tribunal was evaluating the evidence of the applicant concerned.

82                  Third, the Tribunal found that Lionel Dabarera displayed a lack of knowledge in relation to an issue described as the taxi wars electorate. Counsel for the applicants attempted to contend that there was no evidence to support this finding. This argument is nothing more than an attempt to engage in merits review. The finding was open to the Tribunal. It may have been wrong, but the Court does not have the power to correct wrong findings of fact. In any event, even if there were a finding of a nonexistent fact, the Tribunal did not base its decision on that fact.

83                  Fourth and similarly, the Tribunal made a finding that Lionel Dabarera displayed a lack of knowledge of the change of election dates in 1996 when he had in fact given evidence of this. Again, this argument amounts to nothing more than the proposition that the Tribunal made a mistake in finding one fact. It certainly did not base its decision on that finding of fact.

Actual bias

84                  Counsel for the applicants relied on a number of matters in support of his argument that the Tribunal was invincibly biased against both of the applicants. To some extent, those matters have already been canvassed. The matters relied on are as follows:

·        The Tribunal set out to diminish the value of letters from politicians tendered on behalf of each applicant. Its description of the letterhead on the letter from Mr Perera as bearing “only the word ‘Parliament’” displays a linguistic insensitivity. The letter in fact bears what appear to be two words in the Sinhalese script. Unless the Tribunal was able to translate the Sinhalese script and to determine that it only involved the word “Parliament”, then it is difficult to see how it could make the finding that it did. The Tribunal engaged in active discrediting of the letters.

·        In several instances, the Tribunal went out of its way to invent its own version of the facts, or to obtain information that would be likely to show that the applicants’ claims were false. I have already referred to the way in which the Tribunal dealt with the supposed documents relating to Mr Fernandopulle. It also constructed for itself an image of the manner in which the UNP operated, expressing the opinion that there may have been many volunteers to work for the UNP, and concluding that it was unlikely that the relevant applicant would have been required to do what he claimed to have done. The Tribunal also obtained and used the material relating to the economic situation in Sri Lanka and described itself as giving weight to the fact that each applicant was unemployed for some time before leaving Sri Lanka. Exactly what was the purpose of this evidence was never stated by the Tribunal. It made no finding that either applicant was motivated by the economic circumstances, and by his unemployment, to come to Australia. The Tribunal seemed to consider that innuendo to this effect was sufficient.

·        The failure to consider the evidence of one applicant in relation to the other applicant’s case was advanced as an indication of the Tribunal’s bias. So was the manner in which the Tribunal characterised significant parts of the evidence of each applicant as recent invention. Counsel for the applicants suggested that the Tribunal placed each applicant in a situation in which he could not win. It asked questions to elicit further information and then disbelieved the applicant’s claims on the basis that the information had not been provided earlier. If the information provided was sound, the Tribunal did not mention it in its reasons. An example of this was the questioning by the Tribunal of each applicant about the organisation or policies of the UNP. The Tribunal did not treat the detailed answers given to these questions as indicative that the applicants were to be believed as to their claims about political involvement.

·        The Tribunal displayed an unwillingness to believe either applicant unless his evidence was corroborated in some way. I have already referred to its findings that there was no evidence about certain matters. The Tribunal was critical of Lionel Dabarera for his inability to recount details of a court case which he did not regard as of great significance to his claims.

85                  There is no doubt that an examination of the Tribunal’s reasons, and of the way in which it conducted its hearings, gives rise to considerable disquiet about the approach of the Tribunal. It is clear that neither applicant had what could be regarded as a fair hearing. If it were open to the Court to set aside the decisions of the Tribunal on the ground that a reasonable bystander might apprehend that the Tribunal was not approaching the cases of the applicants impartially, there would be little doubt that the applicants would succeed. As I have said, that is not the test. I am not able to go so far as to say that the Tribunal’s approach gives rise to a finding that it was invincibly biased. Rather, my impression is that the Tribunal set out to ensure that each applicant would be found not to be a person to whom Australia owes protection obligations, if it could reach such a conclusion. This leaves open the possibility that the Tribunal would have found in favour of the applicants if it had been persuaded, against its inclination, that their cases were good. In such circumstances, it cannot be said that the Tribunal was invincibly biased.

Conclusion

86                  I am therefore forced to find that neither applicant has made out a case for judicial review of the Tribunal’s decision relating to him on any ground available under s 476 of the Migration Act. It causes me no happiness to reach this conclusion. It is plain to me that the Tribunal did not give either applicant a fair go. It strayed from the role of impartial investigator of the applicants’ claims into the role of contradictor. Under the principles of law applying to other tribunals, its decisions would have been set aside. It is only the narrowness of the grounds available under s 476 of the Migration Act that prevents this from occurring. This is not a situation in which a judge is able to feel comfortable with the result. It may be a case in which it would be appropriate for the Minister to exercise his power under s 48B of the Migration Act to permit a further application for a protection visa to be made by each applicant.

87                  The order of the Court will be that each application be dismissed. In the circumstances, I do not think that it would be proper to award costs against the applicants. Such an order would only compound the unfairness to them.

Associate:

Dated: 2 October 2001