Barrington v Minister for Immigration & Multicultural Affairs

[1999] FCA 327

Johan Frederick Rudolph Barrington v Minister for Immigration and Multicultural Affairs
[1999] FCA 327
No. NG 1401 of 1998
Number of pages - 7
Immigration

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

HILL J

Immigration - Refugee Review Tribunal - what constitutes compliance with the requirement to make a finding on material facts and give reasons - whether ambiguity in Tribunal reasons should be given a beneficial construction - whether certain "treatment" by the police in Sri Lanka constituted persecution

Migration Act 1958, s 430(1)

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 271-272 referred to

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited

Khan v Minister for Immigration and Ethnic Affairs (Gummow J, 11 December 1987, unreported) cited

Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 cited

SYDNEY, 15 March 1999 (hearing), 29 March 1999 (decision)

#DATE 29:3:1999

Appearances

Counsel for the Applicant: R Beech-Jones

Solicitor for the Applicant: McDonell & Co

Counsel for the Respondent: N J Williams

Solicitor for the Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The Application be dismissed.

   2. The Applicant pay the Respondent's costs.

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

HILL J

1. The Applicant, Mr Barrington, applies to the Court for judicial review of a decision of the Refugee Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") that he not be granted a protection visa.

2. The sole ground of review advanced is that provided for in s 430(1) of the Migration Act 1958 ("the Act"), namely that procedures required to be observed in the connection with the making of the Tribunal's decision had not been observed. The complaint, and sole complaint, is that the Tribunal failed to make a finding in its reasons concerning Mr Barrington's claim that during his interrogation in November 1996 he was accused of supporting the Liberation Tigers of Tamil Eelam ("LTTE") and given a warning in respect of that matter, and/or, if that claim was rejected, the Tribunal failed to state its reasons for so rejecting it.

3. It is clear enough that the Tribunal is required to make findings of material fact pursuant to s 430 of the Act and that such a failure would in an appropriate circumstance constitute a failure by the Tribunal to observe procedures required by the Act. The same question is posed in the application for review filed with the Court but under the heading that the decision involved an error of law. The application was, by leave and without objection, amended to rely upon the ground of failure to observe procedures and the case argued, correctly, on the basis that this amendment in effect superseded the ground initially stated in the application.

4. Before turning to the specific matter, the subject of complaint, it is necessary to set out some of the detail of the Applicant's claim that he is a person to whom Australia has protection obligations under the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). The effect of the Convention as amended by the Protocol is that a refugee is defined as a person who:

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

5. The Tribunal after setting out in unexceptional terms the relevant law relating to the meaning of the term "refugee" proceeded to set out the evidence which Mr Barrington had given. The account which follows is a summary of the material appearing in the Tribunal's reasons which the Tribunal referred to as Mr Barrington's "claims". Only those matters which bear upon the present argument directly or indirectly are summarised. The Tribunal's account dealt with other matters not presently relevant.

6. Mr Barrington was of English descent through his father. His mother was Sri Lankan. He regarded himself as a "Burgher" (the Christian descendants of the Portuguese and Dutch colonisers of Sri Lanka) although officially he would be classified as "Eurasian".

7. Mr Barrington converted to an evangelical form of Christianity and, in February 1985, went to work for an American organisation called "Back to the Bible". The organisation spread the gospel by radio broadcasting from material emanating from the United States. Programs were broadcast in the Sinhalese language and Tamil as well as English. Back to the Bible shared premises with two other Christian organisations. One such organisation was known as "Living Bibles".

8. The building in which Mr Barrington worked was raided in March 1988 following a broadcast transmitted into Sri Lanka from the Philippines referring to the plight of Sri Lankan Christians in the north. He said that the Police suspected the organisations in the building of having links with the LTTE. Mr Barrington was interrogated for two hours by the police who sought and were given the addresses of persons who had corresponded with the organisation. After a second raid on the building, Mr Barrington began receiving death threats which he said came from the authorities.

9. In approximately April 1990 Mr Barrington became employed by Living Bibles. In this position he was responsible for ordering English books from abroad for the bookshop of Living Bibles and supervising the distribution of Sinhalese and Tamil books. He subsequently also assumed responsibility for a temple visits program, visiting Buddhist temples and presenting bibles as gifts to be placed in the temple libraries. Some Buddhist monks did, as a result, convert to Christianity which caused problems and tensions although no one had been arrested. The organisation was subject to harassment from 1991 to 1993.

10. Mr Barrington's activities involved helping Tamil people who needed a place to stay or a job. The Police had warned the organisation not to associate with Tamils.

11. In November 1994 Mr Barrington's family home was broken into, although nothing was stolen. He was told the Police were inquiring into his movements. His telephone number had been found in an LTTE hideout in the north and, in the result, he changed addresses.

12. In 1995, following the deportation from Sri Lanka of a foreign missionary, the police had searched the offices of all Christian organisations in Colombo. On this occasion Mr Barrington was interrogated but was not arrested.

13. In 1996 Mr Barrington visited the United States. He said he received several warnings while he was away that if he continued to be involved in missionary work with Tamils his family would suffer. While he was away the Police had gone to the office in search of him on several occasions. They said they wanted to question him about a Tamil who had been in constant touch with him whom they suspected of being a supporter of the LTTE. He was asked to report to the Police on his return.

14. Mr Barrington returned to Sri Lanka on 7 July 1996. He presumably did not report to the police immediately thereafter and it was not until the first week of November in that year that he was questioned by two policemen at his office.

15. His evidence in writing about this incident was as follows:

"During the first week of November 1996 I was questioned by two police officers. Ö I was not taken into custody or even to the police station but was interrogated in my office. It did not look to me as if they were acting officially. They asked me questions about a particular person who had been writing to me from Jaffna who had fled the LTTE movement and was seeking the help of our mission to Ö settle down in another area. They knew the details of this person but not his present whereabouts. Ö I was told that this person called Subramanian was wanted by the authorities and it was my duty to assist them to arrest LTTE supporters Ö By the time they approached me I had already attended to the needs of this young Tamil who contacted us from Jaffna Ö"

16. The Tribunal's reasons summarise this evidence as follows:

"He said that they had questioned him about a person who had been writing to him from Jaffna who had fled the LTTE movement and was seeking the organisation's help to save his life from the LTTE. The Applicant said that he had declined to provide information with regard to this person's whereabouts and the officers had accused him of supporting the LTTE."

17. The Applicant's case before the Tribunal was in essence that, after this interrogation he had every reason to believe his life was at great risk. This led to his applying for a visa to visit Australia on 12 November 1996. He did not travel to Australia immediately the visa issued, but visited India first and returned to Sri Lanka before ultimately proceeding to Australia . He left Sri Lanka for Australia on 21 December 1996.

18. After discussing certain matters which were put to Mr Barrington during the course of the hearing the Tribunal proceeded to make findings.

19. The Tribunal Member said that he accepted Mr Barrington was telling the truth with regard to his personal experiences in Sri Lanka. The reasons then proceed to deal with specific incidents. Relevantly to the present application, the Tribunal said initially of the November interrogation:

"I accept that in November 1996 the Applicant was questioned by two police officers at his office with regards to a person who had left the LTTE and was seeking the help of the Applicant's organisation. I accept that the Applicant refused to provide the two officers with any information."

20. Although the Tribunal expressed some reservations, it accepted that Mr Barrington genuinely feared persecution if he returned to Sri Lanka. However, the learned Member said that he was not satisfied on the basis of the evidence put before him that the fear of being persecuted for any Convention reason was well-founded. Of the interrogations, the Tribunal next said:

"In the present case the Applicant has merely been questioned in his own office on three occasions and I cannot be satisfied on the basis of the evidence before me that there is real chance that anything more serious will happen to him if he returns to Sri Lanka."

21. The Tribunal did not regard the questioning or the March 1998 raid as constituting persecution.

22. Returning to the matter of the November interrogation the Tribunal, in a passage complained of, said:

"Similarly, when the Applicant was questioned in March 1989 and in November 1996 it was because the authorities were interested in particular contacts he had had with the Tamil community in the context of the continuing conflict in Sri Lanka between the Government and the LTTE. As I suggested in the course of the hearing before me, these were legitimate questions for the authorities to be asking in the context of that conflict. The Applicant claims he was suspected of supporting the LTTE but there is nothing in the treatment by the authorities that would suggest they imputed him with this political opinion. Had they done so, there is every reason to believe that he would have been treated far more harshly by the authorities than he was. The fact that the Applicant was questioned in his own office and that it took the authorities four months after he had returned from the USA before they got around to interviewing him, suggests that he was not seriously suspected Ö" [emphasis added]

23. The Tribunal thought it implausible that the authorities would suspect Mr Barrington of supporting the LTTE merely on the basis of his contact with Christian Tamils. Based on evidence, the idea that either Sinhalese people or Burghers might assist the LTTE was said to be implausible. In saying that, however, the Tribunal noted that, if a Burgher was suspected of assisting the LTTE, then he or she would be treated in the same way as any other suspect. This however was said merely to reinforce the point made by the Tribunal that the treatment of the Applicant suggested he was not suspected by the Sri Lankan authorities of having assisted the LTTE in any way.

THE SUBMISSION BY COUNSEL FOR THE APPLICANT

24. Counsel for the Applicant submitted that there were a number of difficulties with the process of reasoning adopted by the Tribunal. As detailed in the written submission filed by Mr Barrington's counsel with the Court these difficulties were as followed:

"The RRT has treated certain DFAT cables Ö as supporting its argument that the applicant would not have in fact assisted the LTTE. However the Applicant did not say that he had (knowingly) assisted the LTTE. The RRT accepted his assertion that he was questioned about assisting them and may have in fact (unknowingly) assisted former LTTE members. More fundamentally, the RRT has asserted that 'there is nothing in [the applicant's] treatment by the authorities that would suggest that they imputed him with this political opinion'. However, there was material in his treatment which did suggest that. As noted above, in his statutory declaration he stated that he had been accused of supporting the LTTE by the officers who interrogated him. That factual contention by the applicant was not the subject of an express finding by the RRT. Although the RRT found that he had been detained and questioned, it simply did not state one way or another whether it accepted his contention that during the course of the interrogation he had been suspected of supporting the LTTE. An acceptance or a rejection of that aspect of the applicant's factual contentions was critically relevant to this (crucial) part of the RRT's reasons. While it was a matter for the RRT to accept or reject it, it is submitted that it failed to do either, or if it did reject it, it failed to state its reasons for so doing and thus contravened ss.430(1)(b), (c) and/or (d) of the ActÖ"

25. In the course of oral submissions counsel for Mr Barrington concentrated on the words "there is nothing in his treatment by the authorities that would suggest that they imputed him with this political opinion" in the passage complained of as central to the submission that although the Tribunal had said it accepted Mr Barrington's evidence it had overlooked his account of the conversation and in particular the accusation that he had supported the LTTE using the mission and had been given a warning - that being "treatment by the authorities" as those words were used by the Tribunal or could fairly be understood, or alternatively the Tribunal had rejected this evidence, but without reasons.

THE SUBMISSIONS OF COUNSEL FOR THE MINISTER

26. Counsel for the Minister submitted that the Applicant's case was based upon a misreading of one sentence in the Tribunal's reasonings. He emphasised that the Tribunal in its reasons had set out accurately enough Mr Barrington's evidence and had specifically stated that it accepted he was telling the truth with regard to his personal experiences in Sri Lanka. So it is said, the Tribunal had not failed to make finding on a material question of fact, rather it is said the finding was expressed in the overall blanket statement that Mr Barrington was telling the truth.

27. It was then submitted that the Tribunal's conclusion was founded upon its view that the whole course of treatment of Mr Barrington was inconsistent with his being seriously suspected of LTTE association. Had the authorities seriously thought that Mr Barrington was an LTTE supporter, it was unlikely that he would have been interviewed casually by police officers. So the statement:

" Ö there is nothing in his treatment by the authorities that would suggest that they imputed him with this political opinion."

is said not to represent a failure by the Tribunal to have regard to his claim or to make findings about his claim but rather a direct response to that claim. Put in other terms, the Tribunal's reasons in the passage complained of should be read in the sense that the Tribunal accepted what Mr Barrington said had happened, but attributed little to the making of the accusation that Mr Barrington supported the LTTE, or the warning which accompanied that accusation.

28. As would be expected, counsel for the Minister relied upon the familiar line of authority that reasons of the Tribunal should be given a beneficial construction and approached sensibly and in a balanced way: cf Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 413-415. It must be accepted that administrative tribunals are not courts and that they suffer from very considerable pressure of work and often inadequate assistance. This leads to the need for a court in judicial review proceedings to exercise restraint and not to be encouraged to roam through the reasons of a tribunal subjecting them to minute scrutiny or criticising them for failing to deal with a material issue, when given a beneficial construction, the reasons show they do deal with the issue.

29. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 271-272 Brennan CJ, Toohey, McHugh and Gummow JJ referred with approval to what was said in this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 that a court on administrative review should not be:

"concerned with looseness in the language Ö nor with unhappy phrasing [of the reasons of an administrative decision maker] Ö The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."

30. It was said that at worst the reasons of the Tribunal were ambiguous. In the case of ambiguity, it was said the Tribunal's reasons should be given a beneficial construction that being one which would result in the conclusion that the Tribunal had committed no legal error, and had ignored no material fact. In consequence, judicial review must fail in the present case.

31. In considering the competing submissions it must, however, be born in mind that it will not preclude judicial review that the Tribunal make a general statement that it accepts all the evidence of an applicant before it when it is clear that it has not taken that evidence (where material) into account or ignored it. Compliance with the requirements to make findings on material facts and to give reasons means a real (albeit substantial) compliance. Mere lip service will not suffice: Khan v Minister for Immigration and Ethnic Affairs (Gummow J, 11 December 1987, unreported) at 11-12; Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392 per Toohey J.

32. In my view the reference to "treatment" in the Tribunal's reasons is intended to refer to consequences to Mr Barrington flowing out of the interrogations he had been subjected to, rather than the accusation (and warning) given at the time of interrogation. Fairly read, I do not think it is correct to say that the Tribunal has overlooked or rejected the evidence which Mr Barrington gave. Rather the point that is being made by the Tribunal in the passage objected to is that the authorities in Sri Lanka did nothing to Mr Barrington which suggested that they really believed he supported the LTTE. So read there has been no failure to observe procedures required to be observed. The Tribunal has made findings of fact and given its reasons. Accordingly the application must be dismissed with costs.

33. I would not conclude this judgment without a comment on the general submission advanced on behalf of the Minister that ambiguity in reasoning should lead to an application for judicial review being dismissed. First, it must be said that an attempt should be made to resolve an ambiguity appearing in the reasons of an administrative Tribunal by reference to the whole context of those reasons. That is the approach which I have taken in the present application. No doubt in doing that it is relevant to give to the reasons a beneficial construction where that is possible. If a Court is unable, after a fair reading of a Tribunal's reasons, to determine what a particular (and relevant) passage in its reasons means for the meaning is ambiguous and therefore unclear, it may well be that it can be found that the Tribunal has failed adequately to comply with its obligations to give reasons. Whether that is the case must depend upon all the circumstances.