FEDERAL COURT OF AUSTRALIA

M51 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 887

MIGRATION – judicial review – Refugee Review Tribunal – where applicant claimed to be targeted by authorities in Sri Lanka as a result of humanitarian work for Tamils – where Tribunal adverted to a claim that two named colleagues engaged in similar work were killed by authorities – where Tribunal made no findings of fact one way or another as to colleagues’ deaths – where claim regarding colleagues a component integer of applicant’s case – failure to make finding revealed Tribunal had erroneous understanding of what constitutes a well-founded fear of persecution – jurisdictional error – s 474 of the Migration Act 1958 – now clearly established that privative clausedoes not protect jurisdictional error – Tribunal’s decision set aside

Judiciary Act 1903 (Cth) ss 39B,  430 and 474

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Re Minister for Immigration & Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002 (2003) 195 ALR 1

Minister for Immigration & Multicultural Affairs v Yusuf(2001) 206 CLR 323

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244

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

Abebe v Commonwealth (1999) 197 CLR 510

Lobo v Minister for Immigration & Multicultural Affairs [2003] FCA 144

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168

SDAV v Minister for Immigration & Multicultural & Indigenous Affairs;  Minister for Immigration & Multicultural & Indigenous Affairs v SBBK [2003] FCAFC 129

NAAG of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCAFC 135

SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121

SCAR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 126

APPLICANTS M 51 OF 2002  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 679 of 2002

RYAN J

25 AUGUST 2003

MELBOURNE

On remittal from the High Court of Australia

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal of 5 April 2002 be set aside and the matter be remitted to the Tribunal differently constituted to be determined in accordance with law.

2.         The respondent pay the applicants’ costs of the application to be taxed in default of agreement.

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

On remittal from the High Court of Australia

REASONS FOR JUDGMENT

1                     There is before the Court an application under s 39B of the Judiciary Act 1903 (Cth) claiming;

‘1.        A DECLARATION that the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 March 2002 at Melbourne in the Tribunal’s file V00/11119 relating to the applicants herein that “The Tribunal affirms the decision of the Minister’s delegate to refuse to grant the Applicants protection visas” (“the decision”) was invalid and contrary to law.

2.         A WRIT OF CERTIORARI to call up and quash the decision or an ORDER that the decision be quashed or set aside.

3.         A WRIT OF PROHIBITION or an INJUNCTION prohibiting the Respondent whether personally or by his delegates, officers, servants or agents from acting on, giving effect to, acting in accordance with or relying on the decision;

4.         A WRIT OF MANDAMUS or an INJUNCTION or an ORDER that the matter be remitted to the Tribunal differently constituted to be determined according to law.’

The matter was remitted to this Court from the High Court by an order made by Hayne J on 30 July 2002. 

2                     In its reasons published on 13 March 2002 for refusing the applicants’ application for protection visas, the Refugee Review Tribunal (“the Tribunal”) noted that the principal applicant was a Sri Lankan citizen who had arrived in Australia on 15 March 1999 on a valid Sri Lankan passport having previously resided in the Seychelles.  He is a Tamil by ethnicity and a Hindu by religion.  He had been married to the second applicant in Colombo on 7 September 1994.  His history from when he began his secondary schooling has been recounted by the Tribunal in these terms;

‘The Applicant stated that he was educated at the Jaffna Hindu College from 1977 to 1980.  In January 1981 he studied with the University of London until July 1982.  From 1982 until 1984 he studied at a secondary school and then at a university in Madras, India.  In September 1985 he undertook studies at the Regional College of the Bharathidasan University in Tiruchirapalli in India.  He then returned to the UK for studies at the University of Exeter.  The Applicant had degrees in chemical engineering and a Master’s degree in Business Administration.

The Applicant listed employment in Tiruchirapalli, Sussex, London and then in the Seychelles.  These were the location of his residences from 1985 to 1999.’

3                     The Tribunal then extensively reviewed the claims which the first applicant (“the applicant”) had made in support of his assertion that he had a well-founded fear of persecution if he were returned to Sri Lanka.  It noted first;

‘The Applicant claimed that he left Sri Lanka in 1981 because of the ethnic situation which he believed endangered his life and liberty.  As he was a young Tamil, he had not been able to return to Sri Lanka to reside permanently because he feared being arrested and tortured.  He claimed that he had been involved in collecting funds for humanitarian purposes, including medicines and clothing, for the Tamils in the north and east of Sri Lanka.  He claimed that this had been reported to the Sri Lankan authorities by non-Tamil Sri Lankans in the Seychelles.  As a result, the Sri Lankan government made arrangements to monitor his activities in the Seychelles.’

4                     The Tribunal next recorded that the applicant had asserted that, although his activities had been essentially humanitarian, the authorities in Colombo believed that he had been providing funds to Tamil militants.  The Tribunal continued;

‘He claimed that this meant he was certain to be arrested on his return to Sri Lanka and then, under torture, he would be forced to reveal his activities since 1981.  He claimed that two of his associates who were involved in humanitarian work had recently been killed in Sri Lanka.  They were taken for interrogation by security personnel and afterwards were found dead near a rail track in a Colombo suburb.  He claimed that this strengthened his fear that he would be harmed if he returned to his homeland.

The Applicant claimed that in 1997, when he returned to Colombo, he was taken away by Sri Lankan security and was held in custody.  The intervention of a personal friend enabled him to be released.  Immediately after that he left Sri Lanka and had never been back there.’

5                     After recounting the preliminary claims of the second applicant to fear persecution by reason of being identified with her husband’s assistance to Tamils, the Tribunal noted that, on 18 November 1999, the applicants had made a more detailed claim which descended to particulars of the applicant and his parents having been driven from their home in Anuradhapura in the communal riots of 1977.  The recital of that more detailed claim continued, at p 7 of the Tribunal’s reasons;

‘He stated that in 1981 he went to study in Madras, at a time when there was an upsurge of Tamil militancy there.  He came into contact with the late Mr Umamaheswaran, who was initially with the LTTE and subsequently became leader of PLOTE.  Through that association the Applicant was attracted to the Tamil liberation struggle and he used to participate in activities such as carrying messages and documents, and arranging meetings in various parts of Tamil Nadu to promote the cause of Tamils.  The Applicant claimed that many different groups emerged at the time but he did not become identified with a particular one.  He claimed he was actively involved simultaneously with almost all the Tamil liberation groups.  That way he came into contact with several key people and he used these contacts to organise medical, food and shelter relief for displaced Tamils in India and in Sri Lanka.  He claimed he was one of the few people who interacted with different Tamil groups and Tamil political activists of all shades.  He claimed that while he was in India from 1989 to 1990, several people reported to the Indian government that he was operating as a militant on their soil.  He said this was at a time when the Indian Peace-Keeping Force was occupying Tamil areas so there were demonstrations against this policy.  He said that because of this the Indian authorities were suspicious of Tamil students and the Tamil refugees on Indian soil.  He himself was subjected to visits by Tamil Nadu’s state police operating on behalf of the intelligence service.  He said he was  in considerable difficulties and had an opportunity to leave India in August 1990 to study in Britain.  Because of the situation in Sri Lanka he was given unconditional leave to remain in the UK.  During his time in London he continued to be active with Tamil activists there and around the world.  He actively worked with several non-government bodies for the humanitarian needs of the Tamil community in Sri Lanka.  The Applicant claimed that he became aware in 1990 that there was monitoring of Tamil refugees and students in India, particularly after the murder of the Indian Prime Minister, Rajiv Gandhi.  Some were taken to police stations, questioned and shown photographs for identification and information  about activities.  From that he discovered that the Indian authorities maintained an interest in his activities even if he was overseas.’

6                     The Tribunal then recorded that the applicant, having been offered work in the Seychelles in 1994, had lived there for five years and continued his humanitarian work for Tamils by arranging consignments of medicines and clothing to Sri Lanka.  The Tribunal’s reasons continued, at p 7;

‘The Applicant stated that whenever he returned to Sri Lanka, he was greeted with suspicion as was any young Tamil male from Jaffna.  There was frequent harassment, especially at checkpoints.  He said he also realised that there was a network of informants for the security forces, such as local vendors and three wheel drivers.  He was the victim of one such informant and the security people came to arrest him.  Fortunately someone in the vicinity alerted him to what had happened and so he left the place immediately.  He said that in Colombo in 1997 he was taken away for a day.  The intervention of a friend meant that he was released.  This detention upset his family very much and made them anxious about their safety in Sri Lanka.  He believed if he ever returned to Sri Lanka, he could be swept up in one of the periodic house checks done by the authorities.  Even those who tried to remain neutral and simply carry out humanitarian work could be taken into custody as had his two friends who subsequently had been found murdered.

The Applicant claimed that from early 1988, the government of Sri Lanka intensified its lobbying amongst various government [sic] concerning the activities of Tamils sympathetic to the LTTE. Sinhalese also were assisted by the government to become informants on the activities of Tamils overseas.  He claimed that he believed he was the subject of such informants while he was in the Seychelles.

The Applicant claimed that he and his wife could not be safe in Sri Lanka.  They did not have any houses or property in Jaffna.  They have lived outside the country for many years.’

7                     The Tribunal went on to note that the applicant claimed to have worked in India with the Office for EELAM Refugees (“the OER”) but had been unable, when asked, to remember other aid organisations which had been operating in Tamil Nadu at the time.  Reference was then made to various testimonial letters relied on by the applicant, including one from a Sri Lankan Member of Parliament.  Those letters attested to the widespread activity undertaken by the applicant in the interests of displaced or disadvantaged Eelam Tamils and a belief that such activities would expose the applicant to suspicion and a risk of harm if he were now returned to Sri Lanka.  In the course of discussing those testimonials, the Tribunal observed, at p 10 of its reasons;

‘The Applicant told the Tribunal that the activities he undertook in the Seychelles were the same as he had done in India and the UK.  He had dispatched medicines in small packages but knew that some of them never arrived.  He said that the packages were being sent to the uncleared areas and that would rouse great suspicion among the authorities.  He said that he could not know for sure that Sinhalese in the Seychelles had informed on him but he assumed they had.

He told the Tribunal that he had not applied for refuge status in the Seychelles because, even though the country might have signed the Refugee Convention, in practice, refugee status was not granted there.  He said that he was increasingly involved there in his humanitarian work and that was why eventually he had to leave for his own safety.  He said that while he and his wife were employed up to the time they left, after he arrived in Australia he received a letter stating that his contract was not renewed.

The Applicant stated that he had come to Australia as he had to flee from his country very quickly after he had been taken into custody and released.  The Tribunal put to him that he had his passport renewed on that same visit to Sri Lanka and that was an indicator that he was not a person of suspicion to the authorities.  He claimed that he had renewed his passport before he was picked up by the security authorities.  He said that it was common for Tamils returning from overseas to be picked up and he was very anxious that he would be detained under the Emergency Regulations.  It was only his very good luck that a family friend, a businessman, was able to bribe the authorities to let him free.  He was supposed to remain available for further questioning and so the fact that he fled from Sri Lanka would be held against him.  It would confirm them in their suspicions that he was a terrorist.  He said that even if they did not think he was a terrorist they could still hold him in custody and pretend that he was.  He said that he thought they would interrogate him about his work in India.  He repeated his claim that two of his fellow workers in India had been taken by the authorities and their bodies later discovered.  He feared this would happen to him.  He said that as he did not have family members in Colombo, he would be more at risk.’

8                     After summarising oral evidence given by the second applicant, the Tribunal proceeded to set out its “Findings and Reasons”.  It first expressed its understanding of what is necessary to establish a well-founded fear of persecution in the sense used in the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”).  It accepted that the applicants’ claimed fear had to be assessed by reference solely to the risk of persecution in Sri Lanka, their country of nationality.  The Tribunal then noted that the Liberation Tigers of Tamil Eelam (“LTTE”) had been identified by a number of countries as a terrorist organisation but accepted the applicants’ claim to have no association themselves with the LTTE.  It also acknowledged that the applicant’s political opinions are moderate and he has never engaged in militancy.  It then continued;

‘There are indicators that over this time [from the early 1980s] the Sri Lankan authorities have not acted against the Applicant, except for the alleged incident of 1997 which will be discussed below.  He has travelled on a valid Sri Lankan passport which has been renewed when this was needed.  He has been able to enter and exit Sri Lanka without ever having been seriously hindered or taken into custody of any sort on entry or at the point of departure.  Such official action and inaction are indicators that, at least overtly, the Sri Lankan authorities have not tried to stop the Applicant from accessing the ordinary freedom of a Sri Lankan citizen to travel.

The Tribunal notes that he had this ease of entry and exit even in 1992, at a time closer to the years he has claimed he was very active in supporting the Tamil cause from India.  He has given evidence that he did not think the authorities knew of his humanitarian activities in India and the UK.  However, this seems implausible, if, as he and his supporters have claimed, he actually was working at a high level and was well-known for his activities.  It also fits ill with his claim that the Indian government kept a watch on him.  This was a period in which the Indian government was anxious about its neighbour and about the number of displaced persons arriving in southern India.

The Tribunal discussed the Applicant’s history in India, noting his youth and student status at the time and also noting that he showed no convincing acquaintance with the range of international aid agencies at work in supporting displaced Tamils at the time.  The Tribunal does not accept this as just a matter of forgetfulness or of a narrow focus on his own work.  A person involved in the establishment and delivery of aid on the level alleged by the Applicant and his supporters could hardly fail to note what other agencies were delivering and where and how.’

9                     After explaining why it did not regard one of the testimonial letters as supporting the applicants’ claim, the Tribunal went on, at p 14 of its reasons, to observe;

‘The Applicant has also claimed that he had no association with any one of the Tamil political groups around at the time but was a supporter of all.  While this demonstrates what the Tribunal accepts is his commitment to Tamils in need rather than to any one political stance, it also makes it implausible that he would be regarded as a significant figure in the delivery of aid, given the highly politicised nature of such work.

The Tribunal then finds that, while the Applicant’s activities in India were indicative of his sympathy for the Tamil cause, they were not at a level that has been claimed and are not of the sort to now be important to the Sri Lankan authorities, some sixteen or more years later.  It has reached the conclusion, on the evidence before it, that the Applicant might well have taken part in supporting his people in a material [sc. way] while he was in India but that it was not at the significant level he and others have claimed.  It notes again that had he been so significant, and the informant network so malignant, it is difficult to accept that he could have easily re-entered Sri Lanka in 1994 for his wedding and then exited again to go to the Seychelles.’

10                  The Tribunal then explained at some length why it considered that the applicant’s failure to seek protection, either in the United Kingdom where he had lived for four years, or the Seychelles, did not “encourage acceptance” of his claimed fear of persecution in Sri Lanka.  It’s “Findings and Reasons” continued;

‘The Tribunal accepts that the Applicant sent funds and parcels of medicines as he was able to Tamils in Sri Lanka.  It notes his own evidence and his supportive letter writer’s assessment that there was no organised pro-Tamil activity on the island and that there were only a few of them involved.  It accepts that Sinhalese, who were growing in numbers as foreign workers in the Seychelles, were sometimes hostile to Tamils.  While it is possible that one or some of them reported the activities of the Tamil fundraisers to the Sri Lankan authorities, even the Applicant’s evidence was that he believed this had happened rather than that he had evidence that it had.  The Tribunal rejects the claim of the Applicant spouse that they were followed and harassed by men with frightful faces.  It finds her evidence unconvincing and constructed simply to support the claims for protection.

However, it must consider the possibility that, even if the principal Applicant’s activities have not been as serious and important as he has claimed, the Sri Lankan authorities are suspicious and take action against anyone of its nationals who have sent funds or goods from overseas for humanitarian aid to Tamils.  Certainly the government has been anxious for many years that the LTTE was being funded particularly by ex-patriates and, since the events of September 11, has been able to persuade key governments such as Canada, the UK and the USA, to close down such financial transactions.  Some commentators are of the opinion that it is this loss of funds which has sent the LTTE to the negotiating table.  The Sri Lankan government then has reason to check the source of funds and goods which have come into the country, actually or ostensibly to support humanitarian programmes for displaced or desperate Tamils.  No international law or authority would find such checking to be of itself persecutory.  However, if the methods used are unjust and involve the abuse of human rights, then it could become in effect persecutory.’

11                  In the context of the letter from the Sri Lankan Member of Parliament, the Tribunal indicated why it was not satisfied, “given what had happened or not happened to the Applicant in the past, that he would now or in the foreseeable future be at risk of suspicion and ill-treatment amounting to persecution.”

12                  There next occurs the following passage which Counsel for the applicants contends reveals a serious error of fact by the Tribunal which precluded it from taking into account a relevant consideration;

‘The Tribunal has considered the fact that the Applicant was able to renew his passport in Colombo on 18 June 1997 as an indicator that he was not, at least at that time, a person under official suspicion.  In this matter it has taken into account his claim that he was under suspicion because of informants who were in the Seychelles and who reported on his activities to the Sri Lankan authorities.  It is implausible that he then would have been able to re-enter without being detained, renew his passport and leave again.  Among the country information submitted by the Applicant were accounts of some returning from abroad who have been detained at the airport.  That is, the facility and the willingness to detain exists in Sri Lanka.  This has not been the plight of the Applicant on the last occasion in which he entered Sri Lanka, nor when he left, nor on any previous occasion.’

13                  The Tribunal then appeared to accept the applicant’s assertion that he had been taken into custody and detained for a day in Colombo in 1997.  However, it regarded such detention for the purposes of checking the credentials of Tamils as a reasonable precaution for the authorities to take against the threat of terrorism.  Its reasoning on that issue was set out in the following passage;

‘This brings into doubt his claim that an incident in which he was taken into custody and held for a day was a sign that he was unsafe in his home country.  The Tribunal notes the country information which indicates that Tamils can be held by the authorities until their identities are checked.  It is plausible that this happened to the Applicant, particularly as his passport and national identity card would indicate that he was born in Jaffna.  Again the Tribunal refers to the fact that the LTTE had mounted serious attacks against prominent and other people and against government installations in Colombo and other parts of the country over many years.  The taking into custody for the purposes of checking the credentials of a particular person is not of itself, in that circumstance, persecution.  Given that it is Tamils who form the LTTE, it cannot be said to be discrimination of a persecutory nature per se that it is Tamils, especially young men from the north, who are of particular interest.  It is possible that the checking of identities will continue into the foreseeable future, although news reports indicate that there has been a dismantling of some checkpoints and fewer checks are being made.  However, the Tribunal is satisfied that the principal Applicant and his family have the identity documents needed, particularly their passports, which indicate that they have not been to the Jaffna region for many years and that they will be able to prove their identities to the satisfaction of the officials who might check them.

Had he been treated badly while in custody, then that could be an act of persecution.  The Tribunal accepts that he was shaken by the incident and that it alarmed him and his family.  However, had he been of any greater interest, it is implausible that he would have been released so quickly and then simply by the intervention of a friend, even if this involved bribery.  While there is much evidence of corruption in Sri Lanka, it is also a country which fears the depredations of the LTTE.  It is implausible he would have been released within a day if he was a serious LTTE suspect.

The Applicant’s case is that he has been a humanitarian worker, supporting Tamils in the north and east, for a period of some fifteen or more years.  His claim is that over this time his work has become known to the authorities.  The Tribunal does not find the 1997 incident, if it occurred, indicates that he was of any such interest to the authorities.  It takes the fact that he was able to keep his passport and to exit the country as indicators that he is not of any continuing interest.’

14                  In essence, the Tribunal found that the applicant’s profile, in supporting and providing humanitarian aid to Tamils in Sri Lanka, was not sufficiently high to have made him a target for persecution in the past or to do so in the future.  It then concluded that the applicants, if they were to return to Sri Lanka, could readily take up residence in a region other than Jaffna and thereby avoid “the tensions which are inevitably there …… and other areas once or now held by the LTTE.”

Grounds advanced by the applicants before this Court

15                  Mr Krohn of Counsel for the applicants, put forward two principal grounds on which he contended that the Tribunal had made reviewable errors.  The first was that the Tribunal had adverted to, but made no findings upon, the applicant’s claim that two of his colleagues engaged in humanitarian work were, in the Tribunal’s words, “taken for interrogation by security personnel and afterwards were found dead near a rail track in a Colombo suburb”.  The other matter he raised was that the Tribunal precluded itself from consideration of “monitoring” of the applicant that occurred in the Seychelles after 1997 by reason of its conclusion that the reissuing of his passport by Sri Lankan authorities in that year indicated he was of no interest to them.

16                  On the first ground, the applicant not only gave evidence of the circumstances in which he claimed that his colleagues had been murdered, as set out in the Tribunal’s reasons, but also named those colleagues as K Haran and T Shanmuganthan in his statement dated 18 November 1999.   In my view, not much turns on the second ground, for reasons which I shall later explain.  The first ground is, I believe, of considerably more substance.  Given the recent exposition of principles governing applications under the Judiciary Act in respect of decisions affecting alleged refugees in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 (“S157”) and Re Minister for Immigration & Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002 (2003) 195 ALR 1 (“S134”), I consider it useful to indicate briefly my conclusions in this matter before explaining them in more detail.

Brief outline of conclusions

17                  The applicant raised a significant issue as to whether he has a well-founded fear of persecution, by asserting that two named colleagues belonging to a like class of persons (those providing humanitarian relief to Tamils) had apparently been murdered following their detention by the authorities.  The Tribunal came to the conclusion that the applicant was not sufficiently prominent among Tamil aid-workers to attract adverse government attention.  It seems to have concluded, on this basis alone, that he was not at risk of persecution.  I am persuaded that the Tribunal made no finding of fact regarding the alleged murder of the applicant’s colleagues.  The conclusion to be drawn from that omission is that it did not regard this matter as material:  Minister for Immigration & Multicultural Affairs v Yusuf(2001) 206 CLR 323 per Gleeson CJ at 330 [5], and per Gaudron J at 338 [35].

18                  In the present case, the Tribunal had before it specific evidence regarding the death of the applicant’s colleagues which bore directly on the issue of whether his fear of persecution was well-founded.  It was, in the language of Allsop J in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259, a component integer of the applicant’s claim.  The Tribunal’s failure to regard it as material raises the inference that it did not ask itself the right question and, indeed, had “an erroneous understanding of what constitutes a well-founded fear of persecution”:  Yusuf per McHugh, Gummow and Hayne JJ at 348 [75].  While the likelihood of the applicant’s coming to the attention of authorities is certainly material to that question, so is the treatment meted out to his colleagues engaged in like activities.  In this sense, the Tribunal, by its error, may also have failed to take into account a relevant consideration.  The Tribunal’s misapprehension of the question it was required to ask, upon which the exercise of its powers was predicated, led it into jurisdictional error of the type described in Yusuf.

19                  Where, as has occurred here, there has been a misapprehension of a question to be asked (as well as a consequent failure to consider relevant material), and where the question concerned is central to the exercise of the Tribunal’s power under the Act, that error is clearly jurisdictional.  As a result, the purported decision is made without jurisdiction, and, is accordingly, not one made “under the Act” for the purposes of s 474: S157/2002 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at 45-6 [74]–[78].  As a consequence, s 474 does not prevent this Court from reviewing the purported decision.

Did the Tribunal fail to make a finding of fact?

20                  As already indicated, in the present case the Tribunal adverted to an issue but made no finding on the question relevant to that issue.  Having recited in its summary of the applicant’s case, his claim that two colleagues (whom he had named) had been killed after being detained by security forces, the Tribunal then failed to refer to the matter again under the heading “findings” or, indeed, anywhere else.  This absence of any recorded finding on the issue gives rise to two possible interpretations.  In some cases it might be possible to infer that, having raised an issue and not having referred to the matter again, the Tribunal was not convinced that the claim had been made out.  That inference was open in Yusuf in the circumstances of that case.

21                  In Yusuf the Tribunal found that the applicant had been attacked twice following the outbreak of the civil war in Somalia.  The Tribunal in its findings accepted that the groups which had attacked Ms Yusuf included members of the Hawiye clan and that Ms Yusuf was of the Abaskul clan.  However, it expressly found that that the Hawiye clan had not been targeting the Abaskul clan.  Thus, even if Ms Yusuf had a well-founded fear of persecution, it was not for a Convention reason.  Ms Yusuf, for her part, contended that there had been in fact three attacks upon her, each of which could have engendered a well-founded fear of persecution for a Convention reason.  She challenged the Tribunal’s decision on the basis that no finding had been made as to the third attack the occurrence of which was materially in issue.

22                  On the issue of the third alleged attack, it was noted in the joint judgment of McHugh, Gummow and Hayne JJ at 353 [90]; “On its face this [the manner in which the Tribunal expressed its findings] amounts to a finding that the Tribunal was persuaded that there had only been two attacks and was not persuaded that there had been more.”  This was the obvious inference where the Tribunal had recited the applicant’s claims in relation to three attacks and commented only upon two.

23                  The circumstances of the present case are materially different.  Here, the Tribunal adverted to the applicant’s claim that two of his colleagues, also involved in humanitarian activities in support of Tamils, had been murdered after being taken into custody by the Sri Lankan authorities, and then failed to make any finding on the issue one way or another.  In Yusuf, the applicant had made claims in relation to three materially similar events of the same kind, namely violent attacks.  The Tribunal’s finding in relation to two of the alleged events necessarily implied that it had not been persuaded of the occurrence of the third event of the same kind.  Here, there are no findings on events of a similar kind from which an inference can be drawn as to the Tribunal’s reasoning.  The available inference is either that the Tribunal fell into, in the High Court’s words, “an erroneous understanding of what constitutes a well-founded fear of persecution” or misdirected itself as to what further issues it needed to consider in light of its other conclusions (see the discussion of Abebe, below).

What is the significance of the Tribunal’s failure to make any finding on the issue?

24                  In Yusuf, the High Court rejected the reasoning of a Full Court of this Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469, which had held that s 430 of the Act imposed a duty upon the Tribunal to make findings in relation to all “objectively material” matters in a case before it: per Gleeson CJ at 331-2 [10], McHugh, Gummow and Hayne JJ at 346 [68] and Callinan J at 387 [205].  Yusuf stands for the proposition that s 430 obliges the Tribunal only to record those findings which it actually made, and that there is no “objective test” which this Court can apply in determining whether the Tribunal has been in breach of a duty to make findings on issues upon which it should have made findings.  Thus, it can no longer be argued that the failure to make a finding of fact on a particular point represents a breach of s 430.  Nor do I understand the applicant to have put his case on that basis.

25                  For present purposes, the relevant passage from Yusuf is in the joint judgment of McHugh, Gummow and Hayne JJ at 348-9 [75] and 351 [82] (footnotes omitted);

‘ … 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. …

It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision‑maker making such an error.  As was said in Craig v South Australia, if an administrative Tribunal (like the Tribunal)

“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it.”

“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material.  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.’

Their Honours’ analysis that such cases will usually turn on the existence of “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)” neatly identifies the two potential characterisations of any error on the Tribunal’s part as they emerged in oral argument in the present case.  While it is no longer open to this Court to hold, applying the principle enunciated in Singh, that a failure to make any finding on a particular point reveals an error of law, it clearly may consider whether a failure to make a finding on a particular point raises the inference that the Tribunal has not asked itself the right question, in the sense that it has not correctly understood what, as a matter of law, constitutes a well-founded fear of persecution.

26                  The available inference from the Tribunal’s failure to make any finding on the applicant’s claims relating to the death of his colleagues is that, given its duty under s 430 to record its findings on all matters it considers material, it did not consider the alleged deaths material to the claims before it: Yusuf per Gleeson CJ at 330-1 [5], and per Gaudron J at 338 [35].  In my view, a tribunal informed by a proper understanding of the law could not have considered that such a claim, if true, was not material to the question it was required by the Act to address, being whether the applicant had a well-founded fear of persecution.  I consider, therefore, that the failure to make a finding on this issue indicates that the Tribunal did not ask itself the right question and thereby fell into legal error.

Is there an alternative explanation for the Tribunal’s reasoning, free from error of law?

27                  Mr Horan of Counsel for the respondent, submitted that, as the Tribunal had concluded that the applicant was not a person who would come to the attention of the Sri Lankan authorities, it was not logically necessary to consider what might happen to him should he come to the authorities’ attention.  That method of reasoning was held in Abebe v Commonwealth (1999) 197 CLR 510 at 545 [85] per Gleeson CJ and McHugh J and at 608 [298] per Callinan J, to be open to a tribunal called on to deal with an issue or claim which is clearly dependent on a particular answer to a question which the tribunal has already resolved.  In Abebe, it was held that, once the Tribunal had rejected a claim that the applicant had been arrested, it was unnecessary for it to consider claims that she had been subsequently detained and, while detained, had been sexually assaulted.  The case illustrates the importance of a close nexus between a principal issue upon which a tribunal has made a finding, and issues said to be logically dependent on, or subsequent to, that issue and upon which, as a consequence, it is not necessary to make any findings.  In Abebe, the Tribunal made discrete findings as to a series of connected events that were claimed to have occurred in the past, and which were relevant to whether the applicant had a well-founded fear of persecution if returned to her country of origin.  Here, it is contended that a conclusion that, if he were returned to Sri Lanka, the applicant would not attract the attention of the authorities, rendered it unnecessary for the Tribunal to consider what, if anything, befell the applicant’s associates who had also been engaged in humanitarian work.  I find myself unable accept that argument.  I cannot see that the approach taken by the High Court in Abebe is applicable to the circumstances of the present case.  In Abebe it was inherently logical for an inquiry into a chain of alleged past events to stop at a given point in the chain.  Unlike Abebe, here the issue on which there was a finding and the claim as to which no finding was made were not sequential events.  On the respondent’s argument, a conclusion as to a future matter (whether the applicant will come to the authorities’ notice) was said to make it unnecessary to resolve the truth or otherwise of claimed past events (the killing of the applicant’s associates).  The two issues may well be logically related in the sense that a finding that the alleged killing of the associates did not happen would provide support for a conclusion that the applicant’s possession of a profile similar to that of his associates was not such as to attract to him persecutory attention from the Sri Lankan authorities.  However, that chronology precludes a finding as to the future matter from making it unnecessary to resolve the issue as to past events.  By contrast with Abebe, the finding as to the future matter did not impliedly negate the applicant’s claim as to the past events. 

28                  Mr Horan aptly observed that this case may well have succeeded had the approach mandated by Singh remained the law.  However, that observation does not entail the corollary that the applicant is doomed to failure by Yusuf or S157.  Mr Horan also submitted that this Court should follow Lobo v Minister for Immigration & Multicultural Affairs [2003] FCA 144, in which a single judge held that NAAV had not been specifically overruled by the High Court in S157 or S134 and it remained binding upon him as a single judge, the reasoning of the High Court being confined to cases “involving a breach of natural justice or procedural fairness”.  That view has now been expressly rejected by Full Courts of this Court in SDAV v Minister for Immigration & Multicultural & Indigenous Affairs;Minister for Immigration & Multicultural & Indigenous Affairs v SBBK [2003] FCAFC 129 at [34];  NAAG of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCAFC 135 at [46];  SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121at [19]–[20];  and in SCAR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 126 at [21];  further, the decision at first instance in Lobo was overturned on appeal in Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168, note especially the comments of the Full Court at [45] and at [50]-[51].  It is therefore unnecessary for me to consider this issue further.

The applicant’s second point, “monitoring” in the Seychelles

29                  Having held that the applicant’s first ground of review establishes jurisdictional error, it is strictly unnecessary to deal with the second ground in order to dispose of this appeal.  However, out of deference to the careful arguments addressed to it, and in case this matter goes further, I shall examine the second ground.

30                  In Mr Krohn’s submission, the Tribunal reasoned from its finding as to informers having reported on the applicant in the Seychelles before 1997 to cast doubt upon his alleged detention in 1997.  Mr Krohn also submitted that the Tribunal’s approach had precluded it from properly dealing with the issue of “monitoring” after 1997.  His submission was the Tribunal had misapprehended the claim advanced by the applicant and had addressed something different, in that it had failed to appreciate a distinction made in the applicant’s written evidence before the Tribunal of “reporting” upon him by Sinhalese informers in the Seychelles up to 1997 and rather more aggressive and overt “monitoring” of him, presumably by paid agents, from 1998.  In this sense, it had dealt with all such monitoring or reporting as if it had occurred before to 1997 and would have been relevant to any detention of the applicant in Sri Lanka in 1997 and the re-issue of his passport in that year.

31                  Even presuming this to be a correct reading of the applicant’s evidence, which is far from precise in ascribing dates to events, I infer that the Tribunal was entirely unconvinced by the whole of the applicant’s evidence on this point irrespective of whether it was directed to “monitoring” before or after 1997.  The Tribunal noted that the applicant’s evidence was of his belief as to what had occurred, rather than what actually had occurred; and it rejected his wife’s evidence of aggressive monitoring in the Seychelles as “constructed simply to support the claims for protection”.  It is true that the Tribunal did treat the “monitoring” claim as going to credit, and, to some extent, that influenced its evaluation of the 1997 evidence of the applicant’s detention.  However, it is not an available inference that the Tribunal disbelieved in its entirety the applicant’s claim as to detention in 1997.  As quoted above at [13] the Tribunal said;

‘This brings into doubt his claim that an incident in which he was taken into custody and held for a day was a sign that he was unsafe in his home country.  The Tribunal notes the country information which indicates that Tamils can be held by the authorities until their identities are checked.  It is plausible that this happened to the Applicant, particularly as his passport and national identity card would indicate that he was born in Jaffna.’

I think that the correct inference is that the Tribunal’s doubt was not that the detention had occurred, but that it had occurred in the circumstances, or had the character, which the applicant had claimed.  That is, it considered that, if the applicant had been detained, that had occurred solely for the legally permitted and non-persecutory purpose of establishing his identity.  It appears to me that the Tribunal’s conclusion on the character of the applicant’s detention had far more to do with its conclusion that the applicant had not attracted the adverse attention of the authorities because he never possessed a sufficient “profile” to do so.  Any error of law committed on the way to that conclusion, occurred, as already indicated, when the Tribunal failed to make findings as to the fate of the applicant’s two allegedly murdered colleagues.

32                  In the absence of any claim that there was a S157 type of breach of procedural fairness, it must be shown that this finding by the Tribunal permits the imputation to it of an error of law of the type explained in Yusuf, and which I have found is available in respect of the applicant’s evidence regarding his allegedly murdered colleagues.  I do not see that such an inference arises in relation to the second point.  At best, the applicant complains, as Mr Horan put it, of a simple error of fact.  The Tribunal expressed a clear view of the evidence on this issue, which it is not for this Court to disturb.  It might have been arguable, if Singh were still good law, that the issue of “monitoring” after 1998 in the Seychelles was an “objectively relevant matter” on which the Tribunal was obliged to make clear findings.  However, it is not apparent to me that, in this regard, the Tribunal has asked itself the wrong question in a Yusuf sense.

33                  For the reasons I have endeavoured to explain above, the Tribunal’s decision should be set aside and the matter remitted to it to be determined in accordance with law.  The respondent must pay the applicants’ costs of the application.

Associate:

Dated:              25 August 2003