FEDERAL COURT OF AUSTRALIA

Applicant NAKB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 534

MIGRATION – appeal from Federal Magistrate – Refugee Review Tribunal (“RRT”) made alternative findings – claim by appellant of persecution if returned to Sri Lanka – whether RRT considered claim by appellant – jurisdictional error – whether appeal should be allowed

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 referred to

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

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

SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161 cited

Htun v Minister for Immigration and Multicultural Affairs (2003) 194 ALR 244 cited

Saad v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 cited

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 referred to

APPLICANT NAKB OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1368 OF 2002

TAMBERLIN J

SYDNEY

30 MAY 2003

THE COURT ORDERS THAT:

1.         The appeal is allowed.

2.         The decisions of the Federal Magistrate and the Refugee Review Tribunal be set aside and the matter remitted to the Refugee Review Tribunal to be determined in accordance with law.

3.         The respondent pay the appellants’ costs of the appeal and the hearing below.

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

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of Barnes FM dismissing an application for review of a decision of the Refugee Review Tribunal (“the RRT”) which in turn affirmed a decision of a Ministerial delegate not to grant the first appellant (“the appellant”) and his family a protection visa.

2                     The principal ground for the appeal as set out in the Amended Application filed by consent is that the RRT failed to address the appellant’s claim that if he was to return to Sri Lanka, he would be arrested for questioning and be persecuted by Sri Lankan security forces on suspicion of having LTTE connections, following his arrest in Colombo, when he was in the company of a relative who was also a LTTE member.  There is no dispute that this submission was raised before the RRT for its consideration.  The respondent (“the Minister”) submits that on a fair reading of the reasons for decision of the RRT, the question was addressed because it rejected the claim that the appellant had been arrested, detained and treated as claimed by him and that it went on to decide, in the alternative, that even if he had been arrested, the incident was a “one off” incident and that there was no real chance that it would therefore be repeated and consequently there was no real chance of persecution from security forces if the appellant is returned to a government controlled area of Sri Lanka.

the RRT decision

3                     The reasons for decision of the RRT record that the appellant is a forty-five year old Tamil born in the Jaffna Peninsula.  His wife who is also a Tamil is aged thirty-nine and they have two young daughters.  He is a qualified engineer and worked in Colombo from 1988 to 1993 and between 1993 and January 2000 he worked in Brunei. 

4                     The appellant’s claim was that in 1998 he was staying with his family in a lodge in Colombo and found that one of his cousin’s sons was also staying at the same lodge.  The son told him that he had come to Colombo to obtain a passport and was trying to go abroad. The room which his family occupied in the lodge was small to accommodate the whole family. His cousin’s son offered to let him sleep in his room.  On 19 December 1998, fortuitously, the police and the army surrounded the lodge.  The rooms were checked and he was asked to show his identity card.  When the police saw the cousin’s son’s identity card they immediately handcuffed him.  The police also arrested the appellant and took him to the police station and on the way he was assaulted by them and later detained in a cell.  He claims that he was beaten with a wooden club and continuously threatened.  The appellant was told that the police knew that his cousin’s son was a LTTE member and accused him of also having LTTE connections.  He was kept for two days and was mentally and physically tortured, severely beaten and questioned.  He said that on 20 December 1998 two policemen entered into the cell and took his personal details, photograph and finger prints.  They asked him his real name and his LTTE member name and the year he joined the LTTE.  He did not have any identification documents with him when arrested.  He claimed that he was eventually released after his wife paid a bribe.  He said that he then left Sri Lanka as soon as possible but his wife remained there to see her parents who were travelling from Jaffna.

5                     The RRT noted that the appellant’s adviser submitted that there was a real chance that the appellant would be persecuted both because he is a Tamil male from Jaffna and has an imputed opinion of support for the LTTE.  It is the latter ground with which the appeal is concerned.

6                     After the RRT hearing the appellant provided a further statement containing details of his claims about his treatment at the police station in 1998. 

7                     In its findings and reasons the RRT noted that the appellant returned to Colombo in 1996 without difficulties and that there was no suggestion that he ever had difficulties in Colombo before 1998.

8                     The relevant parts of the RRT’s reasons for present purposes are as follows:

“The applicant has claimed one occasion where he has had difficulties.  This is alleged to have occurred on 19 December 1998 and the applicant has provided significant detail about the mistreatment he has alleged occurred to him.  The problem the Tribunal has with this claim is that at the time of arrest the applicant would have been able to show he was holidaying in Sri Lanka after working in Brunei.  In addition his wife and children were in a nearby room and could vouch for him.  In the Tribunal’s view it makes no sense for the security forces to mistreat him in the serious way claimed when he obviously could not tell them anything about the operations of the LTTE in Sri Lanka.  Further the applicant is not a member of the profile of those of interest to the security forces.  He is not a young Tamil recently arrived from the north and east and had the ready ability to establish this.  The applicant in support of this claim of detention and mistreatment has provided two medical reports.  However whilst they indicate that the applicant has ongoing shoulder problems they do not convince the Tribunal these problems occurred in the way claimed. Rather given the above matters about the applicant’s profile and his history the Tribunal is not satisfied that the applicant was arrested, detained and treated as claimed.

If the Tribunal is correct in this finding the applicant has never faced serious harm in Sri Lanka in the past.  Given his age, his education and that he is not from the profile of those considered of interest the Tribunal considers that if he now returned there is no real chance that he will face harm serious enough to amount to persecution from the security forces.

However if the Tribunal is wrong about rejecting his arrest in 1998 and the applicant was unlucky enough to have been arrested on this occasion the question remains whether he will face a real chance of persecution should he now return.  If he was mistreated in the way claimed particularly as set out in his recent statement, this treatment would be serious enough to amount to persecution.  In this regard the Tribunal notes that the applicant has worked either in Colombo or in problem areas for periods of time without difficulties.  In the Tribunal’s view such ability to live and work in Trincomalee and in Mullaitivu without significant difficulties from the security forces and without being considered to be a risk as an LTTE operative, provides a much more certain guide to his future in Sri Lanka than one unlucky incident during one holiday.  Indeed on the applicant’s own account had he been in a room with his wife he would not have been suspected of anything.  Given these matters the Tribunal, even if the applicant was detained and mistreated as claimed in 1998, views it as a one off incident.  Although the Tribunal accepts that a one off incident can indicate a real chance of persecution on return, in this case when the entire history of the applicant is considered the Tribunal concludes that there is no real chance this one off incident will be repeated.  As a result the Tribunal finds that the applicant does not face a real chance of persecution from the security forces if he returned to a government controlled area of Sri Lanka.” (Emphasis added)

submissions and reasoning on appeal

9                     The appellants submit that in this case the RRT has expressed real doubt as to the correctness of its finding that the appellant was not arrested, detained and treated as claimed.  Accordingly, it was necessary for the RRT to proceed to consider the matter on the basis that it may have been wrong in the finding that the event did not occur as claimed.  In support of this, counsel referred to the judgment of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 where his Honour said:

“In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT´s own reasons.  If a fair reading of the reasons as a whole shows that the RRT itself had ‘no real doubt’ (to use the language in Guo) claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT´s own findings to be pursued. A ‘fair reading’ of the reasons incorporates the principle that the RRT´s reasons should receive a ‘beneficial construction’ and should not be ‘construed minutely and finely with an eye keenly attuned to the perception of error’: Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.” (Emphasis added)

10                  I consider that this approach is appropriate in the present circumstances.

11                  Counsel for the appellant submitted that the RRT had in fact expressed real doubt when it made the finding that the appellant had not been arrested, detained and treated as claimed.  In the second and third of the paragraphs quoted above, the RRT stated:

“If the Tribunal is correct in this finding, the applicant has never faced serious harm in Sri Lanka in the past …

However, if the Tribunal is wrong about rejecting his arrest in 1998 and the applicant was unlucky enough to have been arrested on this occasion, the question remains whether he will face a real chance of persecution should he now return .” (Emphasis added)

12                  Counsel for the respondent submits that on a fair reading of the quoted passages, the reasoning of the RRT does not express any real doubt as to its conclusion.  This is said to be because the RRT has stated that it was not satisfied that the appellant was arrested, detained or treated as claimed and that it refers to having rejected his claims of arrest in 1998. 

13                  It is of course necessary to make proper allowances for infelicity of expression and to look at the substance of the RRT reasoning.  In the present case, the RRT has expressed doubts about its conclusion as the basis for proceeding to consider the matter further.  Language such as “if the Tribunal is wrong about rejecting his arrest” and “if the Tribunal is correct in this finding” is charged with strong indications of doubt sufficient, in my view, to satisfy the application of the alternative approach referred to in Rajalingam. 

14                  If one applies the “what if I am wrong” approach, the question arises whether the RRT dealt at all with the appellant’s claim that as a consequence of the arrest, having regard to the fact that personal details, photographs and finger prints were taken in relation to the appellant in December 1998, there was a real chance of persecution if returned to Sri Lanka. 

15                  The determination of this claim turns on a reading of the reasons for decision of the RRT as a whole.  In particular, one focal point for determination of this question is the last paragraph quoted earlier.

16                  It is clear that the RRT was aware from material before it, including the further submission made after hearing, that the claim had been made that the fact of the arrest and detention and the records taken could give rise to a real chance of persecution.  The reasoning of the RRT does not expressly address this question.

17                  Counsel for the respondent submits that the question is addressed because there is a finding made on the basis that the appellant was unlucky enough to have been arrested in 1998 and this gave rise to the issue whether he would face a real chance of persecution.  The RRT referred to the fact that the appellant was not a member with a profile which would be of interest to the security forces.  It accepted that if he was mistreated in the way claimed, the degree of harm was sufficient to amount to persecution but noted that he had been able to live and work in other parts of Sri Lanka without significant difficulties.  The arrest, detention and torture are referred to as “one unlucky incident during one holiday” following which attention is drawn to the statement that on the appellant’s own account, if he had been in a room with his wife, then he would not have been suspected of anything.  The RRT considered that the arrest in 1998 was a “one off incident” and that when the entire history of the appellant is considered there is no real chance that the “one off incident” would be repeated.

18                  The fact that it was an unusual incident because by chance he had been in a room with his cousin’s son at the time the police arrived does not address the submission that because that unusual one off incident occurred he might thereafter be perceived as having an imputed political opinion arising from the fact of arrest particularly having regard to the identification measures taken by the arresting group in the nature of the fingerprinting and taking of photographs to which he had been subjected. 

19                  I am conscious of the principles expressed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, but in this case I do not consider the reasoning of the RRT read as a whole indicates that it addressed or attempted to deal with the submission that the fact that there had been an arrest and detention as described by the appellant could give rise to a real chance of persecution.  It is not possible to tease out of the language of the last of the paragraphs quoted above any engagement with the central submission of the appellant.

20                  The question then arises as to the consequences which flow from a failure to deal with a central claim in this application for refugee status.

21                  The failure to deal with a central claim is more than a failure to refer to evidence in support of the claim and constitutes a failure to consider the claim at all.  This failure amounts to jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1; SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs (2003) 194 ALR 244; Saad v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 at [40].

22                  In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, Gummow and Callinan JJ said at [23]-[25]:

“Mr Dranichnikov contends in this Court that the Tribunal misstated and failed to deal with the case presented to it.  We accept this to be so …

To fail to respond to a substantial, clearly articulated argument relying on established facts was at least to fail to accord Mr Dranichnikov natural justice.

The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution.”

23                  The majority of the Court in that case (Gleeson CJ dissenting) held that there was jurisdictional error.  Kirby J referred to the principles concerning constructive failure to exercise jurisdiction in these terms, at [86]-[89]:

“The applicant submitted that he was entitled to the issue of constitutional writs under s 75(v) on the basis that the Tribunal had constructively failed to exercise its jurisdiction in the manner contemplated by the Act.  This principle of relief has been applied in recent times, including in immigration decisions, where it is shown that the decision-maker ‘failed to consider the substance of [the application] and could only have failed to do so because he misunderstood what is involved in the Convention definition of ‘refugee’’.

This Court has repeatedly held that, for the issue of prohibition or mandamus under s 75(v) of the Constitution, it is necessary to demonstrate jurisdictional error on the part of the proposed subject of such relief.  Thus, it is essential to establish something more than an error of law within jurisdiction.  Difficult as it may sometimes be to differentiate jurisdictional and non-jurisdictional error with exactitude, in a case where there has been a fundamental mistake at the threshold in expressing, and therefore considering, the legal claim propounded by an applicant, the error will be classified as an error of jurisdiction.  It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it. 

Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction.  But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.

The applicant has established a constructive failure on the part of the Tribunal to exercise its jurisdiction and power in reviewing the decision of the delegate.  Prima facie, he is therefore entitled to the issue of the constitutional writs that he seeks and the associated relief of certiorari to make such writs effective.”

24                  In the present case the RRT has failed to deal with a central submission and for the reasons above I consider there has been a constructive failure to exercise jurisdiction and that this provides the basis for setting aside the determination of the RRT.

25                  Accordingly, the orders which I make are that the appeal be allowed.  The decisions of the Federal Magistrate and of the RRT be set aside and the matter be remitted to the RRT for determination in accordance with law.

Associate:

Dated:              30 May 2003