FEDERAL COURT OF AUSTRALIA

"CCC" v Minister for Immigration & Multicultural Affairs [2001] FCA 1707

MIGRATION - judicial review - Refugee Review Tribunal - adequacy of reasons - alleged failure to set out findings of material fact - failure to conduct review - error of law - interpretation of "persecuted" - interpretation of "protection obligations" - particular social group - "single woman at risk" - no relevant error of law demonstrated - appeal dismissed

Migration Act 1958  (Cth) s 476, s 430

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

Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 62 ALD 136 referred to

Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 cited

Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864 cited

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

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

Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 175 CLR 585 referred to

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

Kord v Minister for Immigration and Multicultural Affairs [2001] FCA 1163 referred to

"CCC" and "NNN" v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V659 OF 2001

FRENCH, WHITLAM AND KATZ JJ

6 DECEMBER 2001

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The first appellant is to pay the respondent's costs of the appeal.

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

REASONS FOR JUDGMENT

Introduction

1                     The first appellant, CCC, was born on 19 September 1947.  She is a Sri Lankan national of Tamil ethnicity.  She was married on 28 January 1987.  CCC has a daughter, NNN, the second appellant, who was born on 15 August 1987.  The first appellant and her husband separated in 1995.  On 9 September 1997, CCC and her daughter arrived in Australia on a visitor visa.  On 8 December 1997, the first appellant lodged an application for a protection visa with the Department of Immigration and Ethnic Affairs. That application was refused on 5 February 1998.  An application for review of that decision by the Refugee Review Tribunal ("the Tribunal") was lodged on 10 March 1998.  The daughter was included in each of the applications.  The husband, who has since come to Australia, has made a separate application for a protection visa. 

2                     Following a hearing on 21 June 2000, the Tribunal, on 10 July 2000, affirmed the decision not to grant protection visas to the appellants.  On 23 August 2000, they applied to the Court for an order of review of the Tribunal decision.  That application was heard on 30 April 2001 and dismissed by Marshall J on 8 June 2001.  On 18 June 2001, a notice of appeal was filed against the decision of Marshall J.  On 8 November 2001, Mr Star acting as pro bono counsel for the appellants, filed a proposed amended notice of appeal.

Claims and Evidence

3                     In a document attached to her application for a protection visa, the first appellant described herself as "… a refugee on account of the of the on-going ethnic violence in Sri Lanka and also woman at risk under these conditions as I have been abandoned by my husband who now lives in Saudi Arabia".  She also described herself as a victim of race riots in 1983 in which her property was burnt down.  She and many of her relatives were tortured and her nephew was fatally shot.  One of her uncles committed suicide because he could not bear the torture and another uncle died from heartbreak at the death of his son.  All of these matters made her fearful of living in her country of birth. 

4                     The first appellant's husband left her in August 1995 and went to Saudi Arabia promising to bring her and her daughter there, a promise which was never fulfilled.  She and her daughter were left living alone in a flat in a predominantly Sinhalese area.  Her Muslim in-laws rejected her because of her ethnicity.  Her Sinhalese neighbours passed adverse comments about her ethnicity and would report her to Security Authorities and the Sri Lankan army.

5                     Several times a month, according to the first appellant, her house was checked by Sri Lankan army officers wielding guns.  They would come knocking on the door in the middle of the night and search the house.  On several occasions she and her daughter were taken at night to a police station and questioned about visitors.  These were visitors from the north who were staying with them.  She was expected to register visitors with the police.  This could not be done within one night.  Someone in the block of flats in which the appellants lived had called the police and told them there were Tamil Tigers in the appellant's house.  On several occasions the first appellant and her visitors were locked up in the police station for days without food or water until police were satisfied that she was in the clear.  On one occasion she had to spend about eleven days in a police station as one of her visitors was from Jaffna.  The police suspected the first appellant of being a terrorist as well as her visitor.  Only when her visitor was cleared was she released.

6                     In August 1997, according to the first appellant's statement in support of the protection visa application, police entered a Tamil home in a flat close to her and shot and killed a five year old child, accusing its parents of knowing the whereabouts of terrorists who had visited them some time previously.  The police allegedly shot the child to teach the parents a lesson.  The first appellant said that she needed a break from all these tensions and applied to come to Australia on a holiday to visit her sister and family until the tension in Sri Lanka ceased.  A recent bombing in the city two months previously had also scared her.  Her sister and husband in Australia had been trying to reconcile her failed marriage by inviting her estranged husband to come to Australia on a holiday.  But reconciliation failed.  The first appellant said she was left to face the consequences of returning to Sri Lanka "…and living the life as a single woman at risk and as a suspected terrorist for no fault of mine except for my ethnicity".  Her application for a protection visa was said therefore to be based on a fear of persecution in Sri Lanka on account of her ethnicity and suspicion of involvement with the LTTE on account of entertaining Tamil relatives from the north. 

7                     In a submission put to the Tribunal by Victoria Legal Aid on behalf of the appellants, a summary of their claims was set out.  In that summary reference was made to the fear which the first appellant said she experienced as a result of the 1983 race riots in Colombo and the burning of her house by Sinhalese people.  It referred also to the assassination of President Premadasa in 1993 and media speculation that the Tamil organisation, LTTE, was behind the killing.  The first appellant was said to be fearful of being killed by Sinhalese at this time.  Incidents in which police visited her home in 1995 were referred to.  The first of those occurred when relatives from Jaffna stayed at her home.  The second occurred in August 1995, at the time of her daughter's birthday. She once again had visitors from Jaffna and police searched her premises for LTTE information.  She claimed to have been assaulted by security officers who kicked her and pushed her around and pointed guns at her.  She complained of selective harassment and discrimination in 1996 by the management and staff of her local bank in Colombo and of her complaint to the bank manager about a security officer who swore at her and refused her entry.  Police were called and she was taken to a police station where she claimed to have been verbally and physically humiliated for several hours.

8                     In March 1996, when a friend visited the first appellant from Jaffna, a Sinhalese neighbour abused her on the stairway of the flats for using Tamil language and slapped her on the face.  She made a complaint to police who did nothing about the incident.  She was questioned in Sinhalese and could not explain herself properly.  No action was taken on her complaint.  She said that abusive signs and messages were placed on and under her door about her being a Tamil and a supporter of the LTTE.  On another occasion in 1996 she was taken to a police station and questioned after standing waiting for a friend outside the Colombo YWCA.  At Christmas time that year, a relative from Jaffna stayed with the first appellant in Colombo.  Both were subsequently arrested by police and detained for about ten days.  The relative was tortured and the first appellant interrogated at gun point and denied water or food for ten days.  She also claimed to have been the subject of an attempted rape by an officer in charge of security officers searching her house in September 1997 as part of a  response to information that the LTTE were planning to blow up the domestic airport, Telecom and the Water Board in Colombo. 

The Tribunal's Findings

9                     The Tribunal accepted that the first appellant is a Sri Lankan national outside her country of nationality, that she is a Tamil speaking Christian and that she was born and has always lived in the Western Province of Sri Lanka, mostly in Colombo apart from a brief period she spent in Jaffna as an infant.  It accepted that she was married to a Sinhalese Muslim, that the marriage broke down in 1995 and that she had recently recommenced living with her former husband, although she was not hopeful of effecting a true reconciliation.  Her daughter was accepted as also being a national of Sri Lanka, outside her country of nationality. 

10                  The Tribunal found that the first appellant was a victim of the 1983 communal riots,  that her house had been burned down and that she had subsequently bought a house in the same neighbourhood.  She went abroad several times after 1983, but each time returned to Sri Lanka.  The Tribunal concluded therefore that the first appellant did not fear persecution from the authorities or her Sinhalese neighbours on the grounds of her Tamil ethnicity.  It accepted, however, that her parents-in-law were unhappy with her marriage to their son and made things difficult for her and that she suffered insults from time  to time on account of her ethnicity.

11                  The Tribunal considered that, having regard to the terrorist threat associated with the  ongoing civil war in Sri Lanka, it was legitimate for the Sri Lankan government to impose strict security measures in the capital Colombo in order to detain terrorists and to reduce or prevent attacks on innocent civilians.  Such legitimate measures included requirements for the registration of visitors. 

12                  The Tribunal referred to independent country information and its conclusion in a number of other cases that Tamils are not harassed in Sri Lanka by reason of their race. Young newly arrived Tamils from the North and North East, particularly if they come from LTTE controlled areas, may be at risk of harassment because of suspected affiliation with the LTTE.  Such Tamils would not generally be able to communicate in Sinhalese or explain the reasons for their presence in Colombo, without any history of connections with that city and nobody to vouch for them. 

13                  The Tribunal referred to the first appellant's confrontation with a neighbour in 1996 and her subsequent complaint to the police.  Although she claimed no action had been taken it was apparent from her evidence that she spoke Sinhalese and the policeman who took her statement probably only spoke that language.  Although it might be the case that she had been assaulted by a neighbour her complaint was referred to a conciliation board.  According to the first appellant her complaint had been dismissed for want of evidence.  Neither she nor her friend gave any evidence to the police because they did not speak good Sinhalese and she was afraid.  The Tribunal found that she could have interpreted for her friend but her own visits to the police station and her appearance at a conciliation process without any harm led to the conclusion that her friend had nothing to fear.  The Tribunal was satisfied of the existence of some animosity between civilians of different ethnicities.  However the government had implemented measures to redress frictions such as those experienced by the first appellant and her neighbour.  The evidence indicated that she had been given proper protection by the authorities and the lack of any evidence of further antagonism after the conciliation conference demonstrated the effectiveness of government measures.

14                  On the bank harassment complaint, the Tribunal found that she was not mistreated by police and that the bank responded to her complaint although she initially indicated that she was unsatisfied with the response.  In a letter to the Chairman of the bank on 19 February 1997, she said she was treated "honourably and with courtesy at all times".  The derogatory behaviour directed at her by two bank guards partly because she was Tamil was accepted by the Tribunal.  It found however, that, although insulting, such behaviour did not threaten her personal security.  It was not of such a serious nature as to amount to persecution.  Her complaints were addressed and eventually satisfactorily resolved as she was able to continue attending the bank without encountering insulting behaviour.  The Tribunal then said:

"Having regard to the resolution of her own documented difficulties in the context of other information before the Tribunal, including the Applicant's numerous returns to Sri Lanka and her return to live in a predominantly Sinhalese area (discussed below) the Tribunal is satisfied that there is a real chance she faces persecution for reason of her race, should she return to Sri Lanka."

There is a typographical error in the reasons here which leaves out the word "not" in the last sentence before the words "a real chance".  The Tribunal acknowledged that she may have been questioned on some other occasions but had always been released and returned to her usual residence.  In respect of her claim about relatives arriving in the evening without time to register them, she conceded she had a telephone and the Tribunal was satisfied that she could have informed the police that she had unexpected visitors from Jaffna.  The Tribunal found it not plausible that she would fail to notify them, particularly having regard to the problems she allegedly experienced when failing to register previous visitors. 

15                  Although the Tribunal found it plausible that the first appellant was required to attend at the police station to vouch for her relatives, it was not plausible that she would be kept there for a prolonged period until a particular relative was cleared.  Nor was it plausible that her daughter would be detained.  The Tribunal said:

"The fact that the Applicant always returned to her usual address in a predominantly Sinhalese neighbourhood suggests, along with other reasons, that she was not in fear of persecution at that location and further suggests that she has exaggerated her experiences."

16                  On the first appellant's claim that she had been detained and mistreated for several days, the Tribunal concluded that the claim was contrived or at least highly embellished.  She may have attended at the police station for a brief time to vouch for relatives but was not mistreated as alleged.  As for the contention that she was subjected to sexual abuse, this was not made until the hearing.  She said she had previously only had assistance from males and was too embarrassed to disclose the attack.  The Tribunal, however, was satisfied that she contrived the claim about the sexual attack.  It was also satisfied that she had never been found to be connected with the LTTE and that there was no real chance that she would be suspected of such a connection in the reasonably foreseeable future.  The Tribunal was satisfied that there was no real chance that she would face persecution in Sri Lanka on account of her Tamil race and/or real or imputed political opinions.  In respect of her claim to face persecution as a "single woman at risk", the Tribunal noted that the Sri Lankan government had implemented laws to protect women against sexual abuse and was satisfied that it could provide adequate protection for women in the first appellant's situation.  In that context it noted the claim by the first appellant that she had lived alone since 1992 without being sexually abused notwithstanding lewd gestures of the bank guards in 1996.

17                  The Tribunal was not satisfied that she faced a real chance of persecution as a member of a particular social group comprising "single women at risk".  The Tribunal said:

"The Tribunal recognises that Sri Lanka is beset by ethnic and political difficulties but does not share the view that the Applicant or her daughter might be suspected of association with the LTTE.  They left the country without hindrance and the authorities had ample time and opportunity to detain and charge them prior to their departure, but did not do so.  The Tribunal finds they were of no interest to the authorities when they left Sri Lanka for Australia and available information indicates there is not a real chance they would be suspected of LTTE affiliation if they return or would be persecuted for reason of their Tamil ethnicity or for any other Convention reason."

The Application for Review of the Tribunal's Decision

18                  The application for review of the Tribunal's decision was the subject of substantial amendment by the time the matter came on for hearing before Marshall J.  A further amended application was filed in Court at the hearing.  Although it does not appear from the transcript that a formal order was made effecting the changes, the hearing seems to have proceeded on the basis of that version of the application.

19                  In summary, the grounds of review relied upon were:

1.         Failure by the Tribunal to observe procedures required by the Act to be observed in making its decision.

            The particulars of this ground included failure by the Tribunal to set out in its reasons a finding on the question whether Sri Lankan security forces assaulted the applicant during visits to her home by kicking and pushing her and pointing their guns at her ("the intimidation question").

            A further particular in support of the first ground asserted failure by the Tribunal to set out in its reasons a finding on the question whether the Sri Lankan government provided adequate protection for women in the applicant's position from sexual assault by members of State agencies ("the single woman at risk question").

2.         The decision was not authorised by the Act or regulations.

            This ground was particularised by reference to the Tribunal's failure to conduct a valid review as required by s 414 of the Act evidenced by its failure to make a finding on "the intimidation question".

3.         The decision involved an error of law being an error involving an incorrect interpretation of the applicable law.

            This ground was particularised by assertions that the Tribunal misinterpreted the word "persecuted" as demonstrated by its failure to make a finding on the intimidation question.  It was also said to have misinterpreted the statutory definition of "protection obligations under the Refugees Convention as amended by the Refugees Protocol" as demonstrated by its failure to consider the "single woman at risk" question.

4.         The decision involved an error of law being an error involving an incorrect application of the law to the facts as found by the Tribunal. 

This ground was particularised, inter alia, by the contention that the Tribunal misapplied the statutory definition of "protection obligations" as demonstrated by its failure to consider the "single woman at risk" question.

5.         There was no evidence or other material to justify the making of the decision.

            This ground is not relevant to the appeal.

20                  In the "Applicants' Contentions of Fact and Law" before the learned primary judge,  reference was made in a footnote to the fact that there was then reserved before the High Court judgment in the matter of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.

The Decision of the Learned Primary Judge

21                  It was submitted to the learned primary judge that the Tribunal had failed to comply with s 430(1) of the Migration Act 1958 (Cth) by failing to set out a finding on a material question of fact.  The alleged material question of fact was whether Sri Lankan security forces assaulted the first appellant during visits to her home by kicking her and pushing her around and pointing their guns at her.  It was argued that the failure to make a finding about that claim was a failure to observe a procedure prescribed by the Act.  His Honour held that this submission could not succeed in light of the High Court's judgment in Minister for Immigration and Multicultural Affairs v Yusuf.  It was further submitted that a failure to make a finding on the issue of assault at her home showed that the Tribunal had not engaged in a valid review under s 414 of the Act.  This submission was also rejected.  His Honour held there was no reason to believe that the Tribunal did not consider the appellants' application for protection visas.  His Honour referred to Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 62 ALD 136 where it was said that:

"…there is some scope, albeit limited, for the argument that the Tribunal may, in a particular case, have failed to "review" the decision of the Minister."

However his Honour failed to see how anything the Tribunal had done in the matter revealed that it did not properly consider the application before it. 

22                  It was submitted that the failure by the Tribunal to make a finding on the issue of the assaults at the first appellant's home showed that the Tribunal had made an error of law, misunderstanding the meaning of  "persecuted" by not finding that she had a well-founded fear of persecution on account of her race by reference to those assaults. This contention was also rejected.  His Honour agreed with the submission for the respondent that the absence of any specific reference to claims of intimidation and assault did not mean that the Tribunal failed to appreciate that the claimed incidents could amount to persecution within the Convention definition.  There was nothing on the face of the decision to indicate that the Tribunal had departed from the correct understanding of persecution.

23                  It was then submitted that the Tribunal had failed to make a finding on a material  question of fact, namely whether the Sri Lankan government provided adequate protection for single women from sexual assaults by members of the armed forces or police.  Again, his Honour applied Yusuf to find that the ground could not be made out.  In a related submission it was argued that the Tribunal had contravened s 430(1)(d) of the Act by failing to refer to evidence upon which it had made a material finding of fact.  The material finding was that it was not plausible that the first appellant would be kept in detention for a prolonged period until her relative was cleared by the authorities.  His Honour, however, considered that the submission, although superficially attractive, amounted to an attempt to discern legal error on the basis of an overly technical approach to the way in which the Tribunal had expressed its reasons for decision. 

24                  Other grounds of review advanced were said to have no merit and were rejected.

Grounds of Appeal

25                  In the amended notice of appeal filed on 8 November 2001, the following grounds are set out:

"3(a)  The trial Judge erred in his interpretation and application of MIMA v Yusuf (2001) 180 ALR 1, a decision of the High Court delivered after the hearing of the application by the trial Judge but before the trial Judge handed down his reasons for judgment.

 (b)      The trial Judge erred:

            (i)         in failing to hold that; or

            (ii)        in failing to consider whether -

            the RRT's failure to make a finding about CCC's claims that Sri Lankan security forces assaulted her during visits to her home by kicking her and pushing her around and pointing guns at her provided a ground of review under section 476(1)(b), (c), and/or (e) of the Migration Act 1958.

(c)       The trial Judge erred by holding that the RRT did not misunderstand and/or misapply the meaning of "persecuted" by not finding that CCC had a well founded fear of persecution on account of her race if returned to Sri Lanka by reference to the assaults referred to in ground (b) above.

(d)       The trial Judge erred:

            (i)         in failing to hold that; or

            (ii)        in failing to consider whether -

            the RRT's failure to make a finding about CCC's claim that the Sri Lankan government did not provide adequate protection for single women from sexual assaults by members of the armed forces or police provided a ground of review under section 476(1)(b), (c) and/or (e) of the Migration Act 1958."

Statutory Framework - The Criteria for Grant of a Protection Visa

26                  The grant of protection visas is dealt with in the general provisions of the Migration Act 1958 (Cth) for the grant of visas for non-citizens.  These are to be found in Division 3 of Part 2 of the Act.  The Minister has a general power to grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia (s 29).  There are classes of visas prescribed by the Migration Regulations and classes provided for in the Act (s 31).  Criteria for the grant of specified classes of visas may be prescribed in the Regulations (s 31(3)).  An application for a visa is to be considered by the Minister (s 47) and if satisfied that the criteria for its grant and other conditions not relevant for present purposes have been met, the Minister is to grant the visa.  If not so satisfied, the Minister is to refuse the grant (s 65).  Section 36 provides for the grant of protection visas.  It is a criterion for the grant of such a visa that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (s 36(2)).  This criterion is replicated in Schedule 2 of the Regulations which, pursuant to reg 2.03 sets out criteria for the grant of various classes of visa.  Item 785 of Schedule 2 deals with temporary protection visas and Item 866 with protection visas.  Both include as a criterion that:

"…the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention."

27                  The primary obligation which qualifies as a protection obligation arises out of Article 33 of the Refugees Convention.  Under that Article the Contracting States undertake not to expel or return a refugee to the frontiers of territories in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.  The obligation which is otherwise known as the prohibition against refoulement has two important elements:

1.         It operates in respect of refugees.

2.         It prohibits their expulsion or return to the frontiers of territories where their lives or freedoms would be threatened for a Convention reason.

A refugee is defined in Article 1A(2) of the Convention as any person who:

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

The Statutory Framework - The grounds for Judicial Review

28                  The available grounds of review before his Honour were as set out in s 476 of the Migration Act as it stood prior to recent amendments.  The relevant parts of that section are as follows:

"476(1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

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

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

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

…

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

29                  Reference has also been made to s 430, which provides:

"430(1)  Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)       sets out the decision of the Tribunal on the review; and

(b)       sets out the reasons for the decision; and

(c)        sets out the findings on any material questions of fact; and

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

The balance of the section is immaterial for present purposes.

Findings on Material Questions of Fact - Yusuf

30                  It was submitted to the primary judge that the Tribunal had failed to make findings on the "intimidation" question and the "single woman at risk" question.  The failure to make the findings was said to be a breach of s 430 and therefore a failure to comply with procedures required by the Act, a ground of review for which s 476(1)(a) provides. 

31                  Section 430 of the Act imposes on the Tribunal a duty to set out its findings on material questions of fact.  It is not directed to the making of such findings.  In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 17 it was said of s 430:

"In its terms, it requires no more than that the tribunal set out the findings which it did make.  Neither expressly nor impliedly does this section require the tribunal to make, and then set out, some findings additional to those which it actually made." (McHugh, Gummow and Hayne JJ; Gleeson CJ agreeing at 3 and 5).

On this basis his Honour rejected the first ground of review advanced before him.  That rejection was correct in the light of Yusuf and is not challenged on appeal. 

32                  His Honour dealt, albeit summarily, with the second ground of review alleging failure by the Tribunal to conduct the review required by s 414 evidenced by its alleged failure to make a finding on the intimidation question.  He considered the third ground asserting error of law by reference to failure to make findings on the "intimidation" question and accepted the respondent's contention that the absence of any specific reference to the claims of intimidation did not mean that the Tribunal failed to appreciate that those incidents could amount to persecution.  Under the fourth ground he dealt separately with the "single woman at risk" issue insofar as it was said to relate to the definition of "protection obligations".   He disposed summarily of that ground without any elaboration beyond an observation that the Tribunal was correct in holding that the sexual assault claim was not actually made until the written submissions made to the Tribunal on behalf of the appellants.

33                  It was said on the appeal that his Honour erred because he did not find that or even consider whether the failure by the Tribunal to make findings in relation to the "intimidation" and "single woman at risk issues" provided a ground of review under s 476(1)(b), (c) or (e) in accordance with Yusuf.  His Honour, it was said, had purported to apply Yusuf but had not correctly set out and applied the full reasoning from that case.  He did not apply what was said to be the previously unrecognised approach to judicial review under Pt 8 exposed by Yusuf - Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 at [4] (Heerey J); Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864 at [27] (Heerey J).

34                  His Honour dealt with the case before him on the grounds of review set out in the further amended application.  If it could be said that Yusuf allowed the possibility of some additional ground or argument it was not incumbent upon his Honour to raise it.  As appears from the Applicants' Contentions of Fact and Law, counsel for the appellants at the time was well aware of the fact that judgment in Yusuf was pending in the High Court and included a footnote to that effect.  In any event it is important to bear in mind what it was that Yusuf decided.  First and importantly, it could not, and did not, add to the statutory grounds of review under s 476 of the Act to which this Court was limited.  Yusuf held that a failure to make a finding on a material question of fact was not a breach of s 430.  That section relates to setting out, in the reasons for decision, findings actually made.  The joint judgment expressed great doubt that the obligation under s 430 to set out such findings "… could be said to be a procedure … in connection with the making of the decision in question, as the setting out of the decision and the reasons assumes that the decision has already been made." (at 20)

35                  The joint judgment considered the operation of s 476(1)(b), (c) and (e) and the exclusions and qualifications effected by subss (2), (3) and (4).  Section 476(1)(b) was seen as encompassing "jurisdictional error" which itself embraces a number of different kinds of error - at 21 and see Craig v State of South Australia (1995) 184 CLR 163 at 169.  In this connection, their Honours said:

"What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.  Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law."  (at 22)

And in such a case the decision may involve an error of law of the kind contemplated in s 476(1)(e).  That does not extend to making an erroneous finding or reaching a mistaken conclusion.  However if the Tribunal were to identify a wrong issue, ask itself a wrong question, ignore relevant material or rely on irrelevant material in such a way as affects the exercise of its powers, that may expose an error in its understanding of the applicable law or failure to apply that law correctly to the facts as found.

36                  Each of the grounds advanced in the amended application of review, save for the first, was arguable consistently with Yusuf.  Although his Honour's treatment  of those grounds was brief in the extreme it did not expose some failure to apply them properly in the light of Yusuf.

37                  Quite apart, however, from his Honour's disposition there was the threshold question in respect of which he made no finding and that was whether the Tribunal had in fact failed to make and set out findings on the questions of "intimidation" and "single woman at risk" as asserted by the appellants.  That is a threshold issue because everything else in the appeal depends upon the contention that those findings were not made or set out in the reasons.

Whether the Relevant Findings of Material Fact were Made

38                  The "intimidation" question was identified by the Tribunal in that section of its reasons where it set out the appellants' case.  So it said:

"She claims in her written submissions that the security forces regularly attended her house after that in a search for connections to the LTTE.  They would intimidate by pointing guns and kick her and push her around."

In the same section of the reasons the Tribunal set out the claims that the first appellant was taken to the police station and interrogated about her visitors.

39                  The Tribunal found it to be plausible that the first appellant was required to attend at the police station to vouch for her relatives but not that she would be kept there for a long time or that her daughter would be detained.  It then said:

"The fact that the Applicant always returned to her usual address in a predominantly Sinhalese neighbourhood suggests, along with other reasons, that she was not in fear of persecution at that location and further suggests that she has exaggerated her experiences.  If she was often abducted at gunpoint and threatened for prolonged periods with death and rape, it is implausible that she would not have used her existing passport to make arrangements to leave the country or at least move to an area where she was not surrounded by suspicious and prejudiced Sinhalese neighbours.  It is not credible that she would have continued to accommodate relatives without registering them."

40                  That finding embodies a rejection of her claim of fear of persecution by intimidation.  There are two arguable ways in which that composite conclusion may be analysed:

1.         The intimidation claimed did not occur or had been exaggerated.

2.         The intimidation, if it occurred, did not engender in the first appellant any fear of persecution.

It was suggested by counsel for the appellants that the Tribunal finding involved a view that the claimed intimidation did not amount to persecution.  Having formed that view by applying too stringent a test of persecution, the Tribunal, it was said, failed to make a finding about whether or not the claimed intimidation had occurred. 

41                  The Tribunal had earlier enunciated the test of persecution by reference to dicta in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and referred in particular to the statement by Mason CJ that "persecution" refers to:

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

42                  It was said that there was no mention in the Tribunal's reasons of subsequent authority on the concept of persecution which allowed for a more expansive view of it.  In this respect reference was made to what McHugh J said in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 175 CLR 585 at [65], the Full Court's observations in Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855 at [45] and those of Hely J in Kord v Minister for Immigration and Multicultural Affairs [2001] FCA 1163.  While no doubt there has been further elaboration and exposition of the idea of persecution, it is to be borne in mind that the Tribunal is an administrative body acting as an arm of the Executive Government.  It is not required to write reasons for decision of the kind that would be expected of a court.  The exposition quoted from the judgment of Mason CJ in Chan and its reference to "significant detriment or disadvantage" is quite adequate to identify necessary elements of the concept of persecution in a way that covers the immense variety of means by  which persecution may be inflicted on persons by governments or others.  In our opinion, neither in its general exposition of the relevant legal principles, nor in their application to the intimidation question did the Tribunal invoke an excessively stringent test for what constituted persecution.  Its finding was no doubt somewhat elliptical but was sufficient to indicate that as a matter of fact it found that the first appellant was not in fear of persecution in her home and that she had exaggerated her experiences. It must be taken from this that the Tribunal found that whatever she experienced in relation to police visits to her house was not sufficient to engender in her a fear of persecution and did not amount to such.

43                  On the single woman at risk question, the Tribunal referred in particular to the first appellant's claim that in September 1997 she was taking her daughter to school when she was ordered home during a security crackdown related to an anticipated terrorist attack.  As the Tribunal noted, she said she had been followed by five soldiers and the drunken officer in charge had assaulted and attempted to rape her.  She had not disclosed the assault in her initial statement because her brother-in-law had helped her with it and she believed she would be dishonoured if he knew.  The Tribunal's reasons then went on:

"To escape the tension and threats, her sister in Australia arranged for her to visit here and to attempt to reconcile her with her husband.  Her written submissions state that she did not advise people she was leaving and departed on an early morning flight.  At the time she submitted her application there  had been no reconciliation and the Applicant's fears of being harmed were exacerbated by the fact that she was "a single woman at risk".  She reiterated that she was still single at the time of the hearing and, as mentioned above, she was not hopeful that she and former husband would reconcile, despite sharing a residence in Melbourne."

44                  The Tribunal's reasons then went on:

"She fears she faces detention, rape, assault and death because she is a Tamil and a single woman at risk.  Her written submissions state that "the culture is systematically responsibility for serious abuses of women's human rights and discrimination against women which remains not only unchecked but is actually perpetrated and condoned by the State"."

45                  In its findings the Tribunal pointed out that the first appellant's claim that she was subjected to sexual abuse was not made until the hearing.  It observed that she was fluent in English and had had almost three years in which to present that aspect of her claims either in writing or through a female friend.  It noted also that her Australian citizen sister wrote on 14 June 2000 that she appeared to her to be traumatised when she arrived and had to undergo psychiatric counselling.  However, neither the sister nor any psychiatrist or other counsellor had mentioned any incident of sexual abuse.  The Tribunal said it was satisfied that she had contrived the claim that she was subjected to a sexual attack in September 1997.  Further in its reasons the Tribunal said:

"She claims that she faces persecution as a "single woman at risk".  The Tribunal asked for substantiation of the claim that the Sri Lankan State perpetrates and condones the systematic abuse of women's rights and provided time for the applicant to support those claims."

46                  The first appellant said at the time of the hearing that that aspect of her claims could not be "sourced".  The Tribunal referred to the US Department of State Country Reports on Human Rights 1999 in relation to woman and noted that amendments to the Penal Code introduced in 1995 had specifically addressed sexual address and exploitation.  There was a Children and Women Protection Bureau established within the police in 1994 as a response to calls for greater awareness and attention.  The Tribunal did not accept that the first appellant was the victim of a sexual assault and went on to say:

"The government has implemented laws to protect women against sexual abuse and the Tribunal is satisfied that it provided adequate protection for women in the applicant's situation.  In that context it notes the claim that the applicant had lived alone since 1992 without being sexually abused, notwithstanding the lewd gestures of the bank guards in 1996.  Of course, there is no guarantee that a sexual assault cannot occur, but the changes of such an assault being perpetrated on the applicant are remote in the context of her own history and the efforts of the government to protect woman and punish sexual assaults.  The Tribunal is not satisfied that the applicant faces a real chance of persecution because she is a member of a particular social group comprising "single woman at risk.""

47                  It was submitted for the appellants that the Tribunal had ignored the way in which the first appellant put her case, namely that the Sri Lankan government did not provide adequate protection for single woman from assaults by members of organs of the State.  In our opinion, however, the Tribunal's finding was adequate to cover the claims made by the appellants.  It referred to and relied upon protective laws of general application and administrative action taken by government to set up the Children and Women Protection Bureau within the police.  The Tribunal was also satisfied that the government provided adequate protection for women in the appellant's situation.  In the circumstances the specific claim which is attributed to the first appellant is subsumed within the Tribunal's finding on a fair reading of it.

48                  For the preceding reasons the threshold question whether the Tribunal made findings on the intimidation issue and the single woman at risk issue is answered in the affirmative.  Each of the grounds of appeal is dependent upon the proposition that the findings were not made.  For this reason the grounds of appeal as a whole must fail and the appeal be dismissed.

Conclusion

49                  For the preceding reasons the appeal will be dismissed with costs as against the first appellant.  At the end of the hearing, the Court did not call upon counsel for the respondent in this case.  It wishes however to express its thanks to counsel for the appellants who appeared pro bono and offered the court a comprehensive and careful argument on behalf of the appellants.

Associate:

Dated: