Balan v Minister for Immigration and Multicultural Affairs

[1999] FCA 827

FEDERAL COURT OF AUSTRALIA

Balan v Minister for Immigration and Multicultural Affairs [1999] FCA 827

KOHILARATNAM BALAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO DG 6 OF 1998

O’LOUGHLIN J
23 June 1999
ADELAIDE (Heard in Darwin)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	DG 6 OF 1998

BETWEEN:	KOHILARATNAM BALAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	23 June 1999
WHERE MADE:	ADELAIDE (Heard in Darwin)

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The applicant pay the respondent’s costs which costs are to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	DG 6 OF 1998

BETWEEN:	KOHILARATNAM BALAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	O’LOUGHLIN J
DATE:	23 JUNE 1999
PLACE:	ADELAIDE (Heard in Darwin)

REASONS FOR JUDGMENT

1. The applicant in these proceedings is Kohilaratnam Balan (“Mrs Balan”). She is a Tamil who was born in Jaffna Polikandi in northern Sri Lanka on 11 September 1967; she arrived in Australia with her husband on 4 February 1996. Mr Balan, who is aged thirty eight, is also a Tamil but he is from Colombo. A year or so later, on 15 January 1997, they both applied for protection visas pursuant to s 36 of the Migration Act 1958 (Cth) (“the Act”). On 14 June 1997, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”) came to the conclusion that neither of them was a refugee; the delegate subsequently decided that the applicant and her husband were not entitled to the grant of protection visas.

2. On 30 June 1997, Mr and Mrs Balan applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decisions.  Their applications were unsuccessful.  On 15 May 1998, the Tribunal published its decision and its reasons for affirming the earlier decisions of the delegate.  Mrs Balan now asks this Court to review the decision of the Tribunal;  Mr Balan had not made a similar application.

3. Mr Grant, counsel for the Minister, informed the Court that the Minister would proceed upon the premise that Mrs Balan was the head of her family unit.  A spouse of the head of a family unit is, under the Migration Regulations, a member of the same family.  Therefore, Mr Balan, as a member of the same family unit will be entitled, should Mrs Balan be successful in these proceedings, to follow the outcome of her application.

4. The prescribed criteria for the grant of a protection visa are set out in subs 36(2) of the Act and cl 866 of Sch 2 to the Migration Regulations: see subs 31(3) and Reg 2.03. Subsection 36(2) of the Act states that the criterion for the grant of a protection visa is that:

   “… the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

5. The terms “Refugees Convention” and “Refugees Protocol” are defined in s 5 of the Act as meaning “the convention relating to the status of Refugees done at Geneva on 28 July 1951” and “the Protocol relating to the Status of Refugees done at New York on 31 January 1967.”

6. A refugee is defined by Art 1A(2) of the Convention as amended by the Protocol as a 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 is unable or, owing to such fear, is unwilling to return to it.”

7. In determining whether one or more convention reasons applies to an applicant’s circumstances, Black CJ (with whom French J agreed) said in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417 at 420:

   “The convention definition does not extend to all persons who have a well-founded fear of being persecuted in their country of nationality; it requires that there be a fear of being persecuted for one of the specified reasons.  Those reasons may of course overlap, but a recognition that this is so should not obscure the fact that a well-founded fear of persecution for a specified reason must be shown.

   Each element of the definition must be considered.  … .  It is not enough to establish only that persecution is feared by reason of some act that a person has done, or is perceived to have done, and that others who have done an act of the same nature are also likely to be persecuted for that reason.”

8. This Court’s power to review the Tribunal’s decision is found in ss 475 and 476 of the Act. The first of those sections identifies decisions that are judicially reviewable and a decision of the Tribunal is one such decision. Section 476 provides that an application may be made for review of a Tribunal’s decision by this Court on one or more of the grounds that are set out in subs (1) of that section. In her amended application for an order of review the applicant relied upon the provisions of pars 476(1)(a) and (e). Those provisions 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) – (d)          …

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

   (f) – (g)…”

9. It was submitted on the applicant’s behalf that the Tribunal did not act according to the substantial justice and the merits of the case in that it failed properly to consider, among other things, Mrs Balan’s evidence in relation to her claims of mistreatment at the hands of the Indian Peace Keeping Forces (“the Indian PKF”) and her evidence in relation to her claims that when she was detained by the Indian PKF in January 1988 “they were accompanied by anti LTTE groups”;

10. These grounds are a reflection of the provisions in par 420(2)(b) of the Act which provides that the Tribunal, in reviewing a decision:

    “(b)     must act according to substantial justice and the merits of the case.”

11. As a result of the recent decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 - 13 May 1999, it is now clear that s 420 of the Act does not create rights or grounds of review that are additional to those given in s 476; see par 158 per Hayne J. Gleeson CJ and McHugh J, in their joint judgment, explained that provisions such as s 420 are intended to be facultative, not restrictive:

    “Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.”(par 49)

    The particular complaints of Mrs Balan that are identified above can only be considered if they can properly find a place within the umbrella of the grounds in subs 476(1) upon which she has relied.

12. It was submitted on Mrs Balan’s behalf that if she is returned to Sri Lanka, she will be at risk for two convention reasons – her Tamil race and her imputed political opinion.  However, these two reasons are inextricably interwoven and, as a result, they need not be considered separately.

13. Mrs Balan prepared and submitted to the Minister’s Delegate a lengthy statement setting out details of her personal circumstances.  That statement was also considered by the Tribunal.  What follows is a summary of that statement, augmented in places with further information that came forth during the course of her evidence in the hearing in the Tribunal.

14. She completed her schooling in 1983 when she was fifteen.  She said that she had intended travelling to the south of Sri Lanka to look for work but, because of rioting at that time, she was forced to change her plans and remain at home in the north.  She said that as a result of the rioting, Tamils were killed and “Tamil women were raped by the Sinhala mobs with the support of the soldiers in the South” (AB 49).  She commenced a tailoring course which she completed in August 1985; thereafter she started working in “Ratnams Tailors Shop” as a supervisor.  At that time she was about to have her eighteenth birthday.

15. Mrs Balan said that in 1985 the northern part of Sri Lanka was controlled by the Liberation Tigers of Tamil Eelam (“the LTTE” or “the Tigers”).  In December of that year, the local leader of the LTTE asked Mrs Balan to sew uniforms for his members.  She said that she had become a sympathiser to the cause of the LTTE, and, as the work that was asked of her was non-violent, she agreed to do it.  She said that from December 1985 to July 1987, she sewed “more than a hundred uniforms”.

16. The applicant claimed that in January 1988 she was arrested by members of the Indian PKF; she was suspected of assisting the LTTE.  Mrs Balan further claimed that, whilst in custody, she was questioned, threatened, and assaulted with plastic piping.  She continued:  “The soldiers starting bashing me with handcuffs and it was directed to my face, as a result I became unconscious.”  She added that the questioning continued on the following day when, to save herself from threats of sexual assault, she agreed to tell them of her work for the Tigers.  Mrs Balan then said that after she “signed the paper” she was released “on condition that I should not continue my activities with the tigers in the future.”  (I interrupt the narrative at this stage to comment that the fact that she was released coupled with the fact that she was not thereafter, harassed by any authority (Government or otherwise) is powerful evidence that she was not in any danger of persecution for any reason – convention or otherwise - despite the nature of her treatment at the hands of the Indian PKF).

17. Shortly after her release, the local Tiger’s leader approached her once again, asking her to continue sewing uniforms for his members.  Mrs Balan said that she told him of the conditions of her release; according to Mrs Balan “(h)e therefore did not force me to continue helping them during the time of IPKF (sic) were deployed in Jaffna.”  She said, nevertheless, that she was unable to obtain employment in her area because she was then “publicly identified as an LTTE supporter.”

18. Mrs Balan’s statement then jumps to 1990.  By this time the Indian PKF had been withdrawn, the LTTE had gained control of Jaffna, the Government forces had started bombarding the area and Mrs Balan had resumed her work for the Tigers, sewing uniforms.  By June 1991 her involvement with the Tigers had increased; she said in her statement that she had taken a self-defence course  with the Tigers and they had given her an “ID Card”.  As a member of the LTTE she now had a nick-name “KOKI” and a number “No T-29”.

19. In July 1991, the Government launched an army operation against the LTTE in the Jaffna area.  Although Mrs Balan was a Tiger sympathiser, she believed that Tamil objectives should be achieved through peaceful means.  Fearful that she might be forcibly recruited to fight against the Government offensive, she decided to leave the Jaffna area; in the course of leaving she deliberately destroyed her Tiger’s ID card for security reasons.  It was also at this time that, aided by her parents and friends, an arranged marriage was organised for her.  Her intended husband, who then lived overseas in Bahrain, arrived in Sri Lanka in August 1991; the couple met and travelled together to Colombo, later marrying in September.  Later again, they left Sri Lanka and took up residence in Bahrain where they lived from late 1991 until 1995.

20. According to Mrs Balan, following on her leaving the north, her parents were harassed by members of the LTTE; she did not say what form the harassment took or the reasons for it.  In any event, in 1993, her parents moved to Colombo in the south.

21. In December 1995, Mrs Balan’s mother was seriously ill.  It was then about four years since Mrs Balan had left Sri Lanka.  At about this time Mrs Balan was in need of medical assistance; she described it as “infertility treatment”.  Apparently, she considered it necessary to go to Singapore for this treatment.  She decided to visit her mother in Colombo on the way to Singapore.  In her statement she said:

    “My husband’s sister was working in the Colombo Airport as an airport officer.  She warned me to avoid the airport detection by the security forces … . I was received by my sister-in-law who was very sympathetic to the Tamils.  However, I minimised  my stay and also registered myself on my husband’s name at Kelaniya police.”

    She said in her evidence that she stayed in Colombo for four days (T 79).

22. In Singapore Mrs Balan found that her treatment would not only be expensive, but that there would be delays in obtaining it.  She and her husband therefore sought and obtained visas to travel to Australia so that Mrs Balan might obtain the medical assistance that she required in this country.  She said that she did this and recounted how “we had to go back to Colombo where my mother was so seriously ill again.”  Whether this second visit to Colombo was before or after their visit to Australia is not clear.  But what is clear is that she had two short but uneventful stays in Colombo.

23. Mrs Balan’s treatment in Australia was lengthy but, ultimately, successful.  She became pregnant in August 1996.  Unfortunately however, because of their extended absence from their work in Bahrain, both she and her husband had their employment terminated.  Mrs Balan said:

    “We were only allowed to stay in Bahrain on (sic: as?) work permits holders.  Once our jobs terminated we could not enter Bahrain any more.”

24. In support of her claim that she fears for her safety if she returns to Sri Lanka, Mrs Balan listed several factors.  The first matter that she mentioned was a bombing in a Colombo suburb on 24 July 1996; she said that since then “the tension in Colombo and the surrounding areas are apparent and the Tamils living in those areas were assaulted, abducted and humiliated”.  Next, she stated that on 25 July 1996, her father was arrested and taken to the Kelaniya police station where he was threatened “and forced to reveal facts about me.”  Those facts were said to include the fact that Mrs Balan was a Tigers’ sympathiser.  She said that her father was released on the condition that he had to cooperate with the forces “in order to arrest me if I returned to Sri Lanka”.  Mrs Balan is concerned for her father.  If he had not told the authorities what he knew about her, she believes that he would have been detained indefinitely and, as he has a heart condition, he is particularly vulnerable.  As a result of the interrogation of her father, Mrs Balan now believes that her name is listed with the police.  Mrs Balan concluded with the statement:

    “In the circumstances, if I return to Sri Lanka I would be killed or permanently detained for reason of my membership with the LTTE …”

25. In her evidence, she claimed that she does not now have any contact with her parents (T 80).  It is her fear, so she claims, that forces that are opposed to the Tigers have given information about her to the Government.  Coupled with all these factors, Mrs Balan relies heavily on the way in which she was ill-treated by the Indian PKF in 1988.

    The Tribunal’s findings and reasons

26. The Tribunal accepted Mrs Balan’s evidence that she experienced difficulties with the Indian PKF during the time of their presence in the northern part of Sri Lanka. However, that was in 1988; as the Tribunal pointed out, the Indian PKF left the country in 1990.  The Tribunal concluded:

    “… there is no prospect that the applicant would face any further problems associated with this period.”

    In my opinion, that was a finding that was open to the Tribunal on the evidence that was before it and it would be beyond the jurisdiction of this Court to interfere with such a finding of fact.  This Court will only be entitled to intervene in the event of it being satisfied that the Tribunal, in reaching its decision, made an error of law.  Thus, a finding of fact or the drawing of an inference for which there is no evidence is an error of law:  Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481 and 483. But if there was evidence before the Tribunal upon which such a finding could be based, the review Court has no right to intervene even though it is satisfied that it would have come to a different conclusion if it had been the decision maker: to make a wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77.

27. The Tribunal directed its attention to Mrs Balan’s movements in and out of Sri Lanka since 1991.  First, she was able to travel from the north to Colombo without experiencing any difficulties.  Secondly, having married, she was able to leave the country to take up residence in Bahrain.  Thirdly, in 1996 she twice entered and left Sri Lanka when visiting her mother; again, she experienced no difficulties.  After referring to these matters, the tribunal said:

    “This indicates to the Tribunal that she is not at risk from the authorities.”

    That was also, in my opinion, a finding that was open to the Tribunal on the evidence.

28. The Tribunal next addressed Mrs Balan’s submission that she is now at risk because of the information that her father had revealed about her.  As to this, the Tribunal said that it did not “consider this plausible.”  In support of that conclusion, the Tribunal noted that the father’s interrogation had occurred in 1996 but the applicant had not then lived in Sri Lanka since 1991.  The Tribunal went so far as to say that it regarded her claims:

    “that her father revealed her involvement in the LTTE to be far fetched.  Therefore the Tribunal does not accept that the applicant is on any police list as a suspected LTTE member or supporter.”

29. Such a finding was open to the Tribunal; it was entitled to reject her evidence on this subject and to decline to accept that she was on any police list.

30. Of course, the rejection of her evidence is not the end of the matter.  Mrs Balan does not carry any onus of proof and a failure on her part to make out an affirmative case in respect of any one or more aspects of her claim for refugee status does not mean that her claim must fail.  As Gleeson CJ and McHugh J pointed out in their joint judgment in Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 25:

    “… even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution.”

31. Referring to the decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576, their Honours went on to say:

    “The Tribunal “must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution”.”

32. The Tribunal went on to note that although the applicant had been born in the north (and, I add, had lived and worked there until 1991) “all her recent contact with Sri Lanka has been with Colombo”.  The Tribunal explained that statement by noting that her parents had lived in Colombo since 1993, her husband had been born there, she had married in Colombo and she had never returned to the north.  In those circumstances the Tribunal concluded that it considers that Mrs Balan “has re-located to Colombo and that it is appropriate to assess the applicant in relation to Colombo rather than the north.”  I have difficulty in understanding this finding but I do not consider that it is a matter of importance.  For example, if it be wrong for the Tribunal to say that she has “relocated” nevertheless, the evidence clearly supports a finding that she “could relocate” in Colombo.  The result would therefore be the same.

1. The relocation principle has been discussed by a Full Court of this Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265. In that case Black CJ (with whom Whitlam J agreed) said at 268:

   “Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country.”

   (See also the remarks of Beaumont J at pp 277-278).

2. The Tribunal, in the course of its deliberations, referred to several writings on the situation in Sri Lanka.  These included papers and reports from the Research Directorate of the Canadian Immigration and Refugee Board, the UNHCR Geneva Office and a Department of Foreign Affairs and Trade cable of 15 December 1995.  There is no doubt about the immense difficulties that confront Tamils in Sri Lanka.  Questioning, harassment, even detention seemed to be common place.  On the other hand, as it was described in the DFAT cable:

   “… The typical profile of persons who would fall under scrutiny by security forces would be young Tamils from the north or east, but particularly those from the Jaffna peninsula or LTTE – controlled mainland areas.”

3. Amnesty International, in its report entitled “Sri Lanka Wavering Commitment to Human Rights” dated 14 August 1996 also said that those most at risk were young Tamil men and women who had travelled to Colombo from the north or east.  Mrs Balan, as a married woman in her thirties travelling from Australia with her husband and two infant children, would not readily fit into that category of risk.

   The Tribunals’ conclusion

4. The Tribunal relied on several factors in coming to the conclusion that it considered “the possibility of the applicant facing persecution from the security forces to be remote.”  It was not satisfied that there was any real chance that she would face persecution and it was satisfied that the applicant did not have a well founded fear of persecution for a Convention reason

   The factors upon which the Tribunal relied were as follows:

   ·Mrs Balan did not fit the description of a young Tamil who was recently arrived from the north or the east;

   ·she has been overseas for a considerable period of the conflict;

   ·she has relatives in Colombo who can, if necessary, come to her assistance;

   ·her husband is a Colombo Tamil who can also come to her assistance; and

   ·she has returned to Sri Lanka on two previous occasions in safety.

5. The question that the Tribunal had to consider was two-fold.  Did Mrs Balan have a subjective fear of persecution? and was there evidence that would support, objectively, a real chance that that fear would materialise?  This question was posed in Chan Jee Kin v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379 at 389 per Mason CJ at 396, per Dawson J at 406, per Toohey J at 413 and 415 per Gaudron J and at 429 per McHugh J. In their joint judgment in Minister for Immigration v Guo (see above) at 576 Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ explained that in dealing with the second issue, there are, in reality, two questions that can be asked.  In applying them to the facts of this case, the first was whether there was a real chance that Mrs Balan’s activities in the past might result in the attribution of a political profile to her?  The second question, if the first was answered in the affirmative, was whether there was also a real chance that Mrs Balan might be persecuted by reason of such a political profile?

6. In Chan’s case (see above) the High Court discussed the need for an applicant to establish that his or her fear of persecution for a Convention reason is a “well-founded” fear.  Mason CJ said at 389:

   “If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.”

7. In Minister for Immigration and Ethnic Affairs v Guo (see above) at 572 the majority (Brennan CJ Dawson, Toohey, Gaudron, McHugh and Gummow JJ) said of the decision in Chan’s case that it was:

   “…an important decision of this court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.  But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error.”

   On the following page, the majority explained in further detail:

   “Conjecture or surmise has no part to play in determining whether a fear is well-founded.  A fear is “well-founded” when there is a real substantial basis for it.  As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50% chance that the object of the fear will eventuate.  But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.”

8. In Periannan v Minister for Immigration and Ethnic Affairs (unreported:  Federal Court, 28 July 1987) Wilcox J said of “persecution” that:

   “It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances.”

   That passage was referred to with approval by Davies J in the Full Court in Muralidharan v Minister for Immigration and Multicultural Affairs (1996) 62 FCR 402 at 405. In the following year, McHugh J wrote on the same subject in Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 at 257-258:

   “The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return.  Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution.”

   Later at p 258 of his judgment, McHugh J added the further comment about the difficulties that may be confronted by citizens of a country that is suffering the horrors of civil war.  He said:

   “Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee.  A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens.  The enforcement of a generally applicable criminal law does not ordinarily constitute persecution Yang v Carroll (1994) 852 F Supp 460 at 467. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race cf Korematsu v United States (1944) 323 US 214.”

9. The writings on the internal affairs in Sri Lanka strongly suggest that any Tamil person, irrespective of age or sex, is likely to be subjected to unwarranted and unexpected harassment but, as it seems to me, unless there is more, such treatment must be earmarked as “incidental violence as a result of civil or communal disturbances.”

10. There was no material before the Tribunal that would suggest that Mrs Balan might be singled out – either because she is a Tamil, or because she is a Tamil with links to the LTTE - for discriminatory treatment.

11. The Tribunal, having rejected Mrs Balan’s evidence about her father’s interrogation, did not embark upon a search for some alternative explanation for her claimed fear of persecution which she had not advanced.  Mrs Balan had referred to rioting and to the difficulties that were encountered by Tamils living in Colombo but the Tribunal had not overlooked those factors.  She had told of her treatment at the hands of the Indian PKF but the Tribunal had noted that claim.

12. In fact, the Tribunal went so far as to say that it did not accept:

    “… that there is any possibility she will be seen as someone having LTTE links.  She has one child and is due to give birth again this year.  In such circumstances the Tribunal considers the possibility of the applicant facing persecution from the security forces to be remote.”

    The Tribunal completed its reasons by stating that “the applicant does not have a well founded fear of persecution for a Convention reason”.  Although the Tribunal did not make a specific finding about Mrs Balan’s subjective fears, its conclusion rendered an examination of her personal feelings unnecessary.

13. Counsel for Mrs Balan was critical of the Tribunal’s reasons in several areas.  Before mentioning those criticisms, I set out hereunder some of the observations that have been made from time about the role of appellate Courts when considering the remarks of the Court (or Tribunal) that are the subject of the appeal.

14. The High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472 said that appellate courts should be slow to interfere with findings of fact made by a trial judge in view of the advantage enjoyed by him or her in hearing and seeing the witnesses, an advantage which the Tribunal enjoyed in the present case. Those remarks apply with equal force to this Court when it is reviewing a decision of the Tribunal. In Devries, Brennan, Gaudron and McHugh JJ said (at 479):

    “More than once in recent years, this court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact.  If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable.” (references to authorities have been omitted)

15. The approach that this Court is to take, when reviewing the decision of the Tribunal, has been spelt out by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272:

    “These propositions are well settled.  They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.  In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.  This has been made clear many times in this Court.” (references to authorities have been omitted)

16. In Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 Lockhart J said that if the Court is to keep within the proper bounds of judicial review of administrative decisions, it should approach the task of construing the reasons of the decision maker “sensibly and in a balanced way”. The views of his Honour were referred to with approval by Sackville J (with whom Davies and Beazley JJ agreed) in Muralidharan v Minister for Immigration and Multicultural Affairs (see above) at 414. Sackville J continued at the same page saying that the Tribunal is not required “to prepare lengthy reasons dealing with every aspect of the evidence.” Referring to the remarks of Wilcox J in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 483, Sackville J added that “it is not necessary that the reasons deal with all matters raised in the proceedings; it is enough that the findings and reasons deal with the substantial issues on which the case turns”.

17. It is not uncommon for a Tribunal, in the course of its reasons, to omit to mention material which it considers to be immaterial to matters under consideration.  That occurred in Ping v Vrachinos (1996) 41 ALD 551. In the circumstances of that case, Heerey J supported the decision maker saying:

    “The nature of the evidence omitted, considered in the circumstances of the case as a whole, does not to my mind indicate that any error of law occurred or that the result would have been any different had the evidence been expressly adverted to.”(555)

    Mr Grant, counsel for the Minister, relied on this passage; it was his submission, and I agree, that the Tribunal, in its reasons, had adequately covered the material facts – the matters of substance – and that any matters that had been omitted, were such that, as explained by Heerey J, the result would not have been any different “had the evidence been expressly adverted to”.  Nor is a matter “which has been passed over in silence in the Tribunal’s reasons” to be assumed to have been overlooked:  Dodds v Comcare Australia (1993) 31 ALD 690 at 691; Telstra Corporation v Arden (1994) 20 AAR 285 at 297 per Burchett J.

18. Counsel for Mrs Balan submitted that the Tribunal fell into error because it did not scrutinise the nature and treatment of any possible detention that the applicant may face if she returned to Sri Lanka.  In addition, so it was claimed, the Tribunal did not consider whether detention would be in pursuit of a national objective and it did not ask whether adequate safeguards would be in place to prevent abuses whilst in detention if it was satisfied that the detention was a legitimate pursuit of a national objective.  There is, in my opinion, a short but fatal answer to these propositions.  It has to be that the Tribunal did not consider that the information that was before it warranted consideration being given to these matters.  In view of its finding that it rejected Mrs Balan’s evidence with respect to what her father said and as it did not consider that the incident in 1988 was now of any significance, it would be unreasonable to expect the Tribunal to engage in such an exercise of surmise and conjecture.

19. Counsel for Mrs Balan next submitted that the Tribunal fell into error by failing to have due regard to the contents of the detailed written statement that was composed by or on behalf of Mrs Balan and submitted by her to the Minister’s delegate.  This submission, which must be rejected, was made notwithstanding that the Tribunal, in its reasons, acknowledged the existence of the statement, commenting that it had taken it and Mrs Balan’s oral evidence into consideration.  Counsel complained, however, that the Tribunal failed to make findings in respect of matters of importance that were contained in that statement; for example, it was submitted that in reaching the conclusion that there was no prospect that she would face any problems because of the episode with the Indian PKF the Tribunal did not adequately address whether her history of support for the LTTE, evidenced by her detention, placed her at risk over and above the risks faced by other Tamils of Colombo.  The Tribunal, so it was claimed, did not address the fear of the applicant that if she was detained in Colombo she would be adversely treated.  This submissions suffers from the fact that it relies on events that occurred ten years or so ago and, notwithstanding Mrs Balan’s protestations to the contrary, it lacks any meaningful connection to the applicant in her present day circumstances.

20. It was also submitted on Mrs Balan’s behalf that the Tribunal fell into error when it failed to address her fear of persecution at the hands of Tamil groups who are opposed to the Tigers.  Whilst the Tribunal’s reasons do not address this subject, I do not consider that it amounts to reviewable error.  Mrs Balan’s application for refugee status was based on her historical association with the Tigers which, if accepted, would have brought with it, the risk of persecution from any body that was opposed to the Tigers.  The Government was such a body:  so also were these Tamil groups.  In rejecting Mrs Balan’s primary claims about the degree of her association with the Tigers, the Tribunal rendered it unnecessary to examine risks of persecution at the hands of any body – be that body the Government or some anti-Tigers Tamil group.

21. Counsel for Mrs Balan claimed that the Tribunal failed to give her circumstances “close scrutiny”, and referred to the remarks of Merkel J in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 50 where his Honour said:

    “However, the summary round up, arrest, detention , torture and extortion of young Tamil males from the Jaffna peninsula who are in Colombo or other government controlled areas, is not conducted in accordance with or authorised by such laws.  Any mantle or legitimacy is lost in respect of such conduct which is plainly discriminatory and, as was pointed out by Burchett J in Savarasa, will constitute persecution.  When the material before the RRT raises such a case, as it clearly did in each of the present matters, the conduct in question will, as was stated by McHugh J in Applicant A (at 259) become “inherently suspect and requires close scrutiny” in order to ascertain if it was engaged in for a convention reason. As Davies J observed, the excess of the “measures” taken can properly found an inference of an intent to inflict harm for a Convention reason.”(at 50)

    That passage, important though it is, is not one of general application.  Before it can be brought into operation, the necessary factual matrix must be present.  That factual matrix is not present in this case.  In this case the relevant facts, as found by the Tribunal are that Mrs Balan was adversely treated by the Indian PKF over ten years ago because of her connection with the Tigers but was released within a very short time upon her promise to cease her association.  Since then she has not experienced any form of trouble from any source.

22. It was submitted on Mrs Balan’s behalf that the Tribunal erred in law in that it failed to identify the source of Mrs Balan’s fear.  Counsel submitted that in any assessment of an application by a person seeking review of a protection visa application, it is necessary, as a first step in the review process, to identify the source of the fear that is claimed by an applicant.  It was contended by the applicant that the Tribunal did not undertake this step despite there being a clear indication from the applicant that her source of fear was the Sri Lankan authorities and (by implication) one or more anti-Tigers groups.

23. I do not consider that this complaint is sustainable.  The following extracts from the Tribunal’s reasons establish that the Tribunal was well aware of Mrs Balan’s circumstances and, in particular, of her claimed subjective fear.  The Tribunal said that it accepted “that the applicant may have experienced difficulties” during the time that the Indian PKF was present in the north.  A few sentences later it said:

    “The applicant claims she is now at risk because of the information that her father has revealed about her.”

    These two passages, when tied together, and coupled with her claimed former membership of the Tigers, show that the Tribunal was attuned to the fact that Mr Balan was advancing a proposition that her former association with the Tigers lead to her ill treatment at the hands of the Indian PKF and she fears that her former association will still be held against her – as evidenced by the manner in which her father had been treated.  Mrs Balan’s difficulty lies in the fact that, first, the Tribunal held that there was “no prospect” of her difficulties with the Indian PKF’s resurfacing and secondly, it considered her evidence about her father’s admissions “far fetched.”

1. The applicant complained that the Tribunal did not – as it was required to – identify whether the Sri Lankan Government could provide the applicant, if necessary, with effective protection from sources, or potential sources, of harm.  The Tribunal did not have to engage in that exercise because the tribunal had made a basic finding that it did not consider such harm a realistic risk.  It said:  “… the Tribunal considers the possibility of the applicant facing persecution from the security forces to be remote.”

2. There were several grounds of review that were challenges to findings of fact that had been made by the Tribunal.  They can be conveniently identified as follows:  it was alleged that the Tribunal erred in that it failed to address facts of material relevance to Mrs Balan’s claims in that it failed to address her evidence that:

   ·she had undergone training by the LTTE, had been issued with an identity card and code name and had provided assistance to the LTTE during 1985 to 1991;

   ·she had been tortured at the Indian PKF’s camp in 1988;

   ·her father had been arrested and threatened and that her father was ill and had been released on condition that he operated with the authorities

   ·her parents cannot leave Colombo without prior police permission.

3. Section 430 of the Act imposes on the Tribunal an obligation to state its reasons for decision:

   “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.”

4. As to the complaints of failure by the Tribunal to address facts of alleged material relevance, it is sufficient to say that, in most cases, those facts were addressed in the Tribunal’s reasons and in the remaining cases, the omissions were of an inconsequential nature.  Thus the Tribunal made a clear reference to her ill-treatment at the hands of the Indian PKF, to her self defence training, to the assistance that she gave to the Tigers by sewing uniforms and to her father’s alleged arrest and detention.  The Tribunal did not mention her identity card or the proposition that her parents could not leave Colombo without the prior permission of the police.  Those matters were not, however, matters of material importance and the absence of reference to them in the Tribunal’s reasons does not, in my opinion, affect the validity of those reasons.

5. In my opinion, the applicant has failed to establish that there has been any reviewable error.  The application is therefore dismissed with costs.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin.

Associate:

Dated:            18 June 1999

Counsel for the Applicant:	Mr M Hardie
Solicitor for the Applicant:	Messrs Dalrymple & Associates
Counsel for the Respondent:	Mr M Grant
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 May 1999
Date of Judgment:	18 June 1999