Buultjens, Susan Juliana v Minister for Immigration & Multicultural Affairs
[1997] FCA 451
•6 MAY 1997
CATCHWORDS
IMMIGRATION - application for review of decision of Refugee Review Tribunal not to grant protection visa - whether applicant a refugee - whether Tribunal failed to engage in real speculation about the applicant's claim - s 420(b) of Migration Act 1958 - whether Tribunal failed to act according to the "substantial justice" of case - whether that is properly a ground of review under the Migration Act 1958.
ADMINISTRATIVE LAW - Judicial review - correct approach of Court to findings of fact by original decision‑maker.
Migration Act 1958: s 36(2), s 40, s 415, s 420, s 420(1),
s 420(2)(b), s 425, s 475, s 476(1)(a), s 476(1)(d),
s 476(2)(a), s 476(3)(c)
Pt 8
Migration Reform Act 1992: s 39
Administrative Decisions (Judicial Review) Act 1977: s 5(2)
Migration Regulations (1994): Pt II, Sch 2, cl 866.211
1951 Convention Relating to the Status of Refugees as amended
by the 1967 Protocol Relating to the Status of Refugees
Procedures and Criteria for Determining Refugee Status
(1979) published by the office of the United Nations High Commissioner for Refugees
Chan Yee Kin v Minister for Immigration and Ethnic Affairs
(1989) 169 CLR 379
Harjit Singh Randhawa v The Minister for Immigration, Local
Government & Ethnic Affairs (1994) 124 ALR 265
Khan v Minister for Immigration and Ethnic Affairs
(1987) 14 ALD 291
Hindi v Minister for Immigration and Ethnic Affairs
(1988) 20 FCR 1
Zakinov v Gibson (unreported, North J, 26 July 1996)
Abalos v Australian Postal Commission (1990) 171 CLR 167
Devries v Australian National Railways Commission
(1993) 177 ALR 472
Warren v Coombes (1979) 142 CLR 531
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
(1996) 185 CLR 259
Guo Wei Rong v Minister for Immigration and Ethnic Affairs
(1996) 65 FCR 151
Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs
(6 May 1997, Goldberg J, unreported)
SUSAN JULIANA BUULTJENS & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No VG 119 of 1996
GOLDBERG J
MELBOURNE
6 MAY 1997
FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
GENERAL DIVISION ) No VG 119 of 1996
B E T W E E N:
SUSAN JULIANA BUULTJENS
First Applicant
and
MICHELLE JENOLINE BUULTJENS
Second Applicant
and
ROMAINE STEPHANI BUULTJENS
Third Applicant
AND
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
CORAM:GOLDBERG J
PLACE:MELBOURNE
DATE:6 MAY 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application is dismissed.
The applicant pay the respondent's costs of the application, including any reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court rules
FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
GENERAL DIVISION ) No VG 119 of 1996
B E T W E E N:
SUSAN JULIANA BUULTJENS
First Applicant
and
MICHELLE JENOLINE BUULTJENS
Second Applicant
and
ROMAINE STEPHANI BUULTJENS
Third Applicant
AND
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
CORAM:GOLDBERG J
PLACE:MELBOURNE
DATE:6 MAY 1997
REASONS FOR JUDGMENT
Introduction and background
The applicants apply to the Court pursuant to Pt 8 of the Migration Act 1958 ("the Act") for an order of review in respect of the decision of the Refugee Review Tribunal ("the Tribunal") on 8 February 1996 that the applicants are not refugees under the 1951 Convention Relating to the Status of Refugees ("the Convention") as amended by the 1967 Protocol Relating to the Status of Refugees ("the Protocol").
On 1 September 1994 the Migration Reform Act 1992 came into operation. By reason of the operation of s 39 of the Migration Reform Act 1992 any application for refugee status
not finally determined was to be dealt with as an application for a protection visa, so that the decision of the delegate of the Minister had the effect of a refusal to grant a protection visa. Section 36 of the Act provides for a class of visas to be known as protection visas for persons who seek protection as refugees and this class of visa replaced the visas and entry permits previously granted for that purpose. The issue before the Tribunal was whether the applicants had a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. This issue arose because s 36(2) of the Act provides that a criterion for the grant of a protection visa is that the applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Convention and the Protocol. As the application was made pursuant to s 36(2) of the Act, by virtue of the provisions of s 40 of the Act reliance is placed on reg 2.04 and reg 2.05 of Pt II of the Migration Regulations (1994) and in particular on Sch 2, cl 866.211. Under the Convention and the Protocol Australia has protection obligations to persons who qualify as refugees under Article 1A of the Convention.
The first applicant was born on 10 October 1955, the second and third applicants are daughters of the first applicant born respectively on 26 January 1979 and 10 May 1982. For ease of reference I will refer to the first applicant as "the applicant" as the fate of her daughters' applications are dependent on the fate of her application. The applicants arrived in Australia on 23 January 1989, the applicant holding a visitor's visa. The applicant lodged an application for refugee status on 12 July 1990 and on 5 August 1994 the delegate of the Minister refused the application, deciding that the applicant was not a refugee. The applicants applied to the Tribunal on 22 August 1994 for review of that decision, the Tribunal held a hearing on 10 October 1995 and on 8 February 1996 the Tribunal handed down its decision. The application for an order of review was filed on 8 March 1996 and on 20 March 1997 the applicants filed an amended application in which they relied upon four grounds of review to which I will return.
Decision of the Tribunal
In its decision the Tribunal set out the evidence put before it in relation to the applicant's family background and history in Sri Lanka. It set out details of rioting and unrest which had occurred over a long period of time, particularly directed against Tamils and also it identified troubles which arose in and after 1988 as a result of the actions of the Janatha Vimukthi Peramuna ("JVP"). The Tribunal found that when the applicant left Sri Lanka she had a well‑founded fear of persecution from the JVP; that her fear has now dissipated due to changed circumstances; that she left Sri Lanka legally and had no difficulties obtaining her passport; and that the authorities had no interest in her.
Further evidence was placed before the Tribunal in relation to circumstances which had arisen after the applicant had left Sri Lanka particularly in relation to the use of her house by persons involved, or associated, with the Liberation Tigers of Tamil Eelam ("LTTE"). The applicant said that her husband no longer lived at the house but stayed in a church and with relatives because he was afraid to live in the house because of threats of harm or action by security forces and neighbours hostile to the LTTE. The applicant led evidence in relation to other matters from which she said the security forces and neighbours might perceive that she was associated with the LTTE and the thrust of her case was that Tamils who were suspected of being LTTE members or supporters were hated by the Sinhalese people and were liable to be detained by the security forces.
The applicant's father was a Tamil, her husband was a Burgher and she had changed her identification to that of a Burgher although she said she would be identified and regarded as a Tamil in Sri Lanka because her father was a Tamil. The Tribunal set out in considerable detail the evidence relied upon by the applicant in support of her claim that she had a well‑founded fear of persecution if she returned to Sri Lanka from security forces and the local community. There was also evidence before the Tribunal as to the extent of the applicant's distress and depression and concern that she had recurrent suicidal thinking.
Having identified the relevant principles of law the Tribunal formed a judgment on the credibility of the applicant noting that her claims and evidence contained many inconsistencies, some of which might be attributable to her depressed state, but it was unable to conclude that all the inconsistencies could be explained in this way. The Tribunal found that the applicant's evidence concerning the perception that she was a terrorist or had helped terrorists was unreliable.
The Tribunal concluded, after analysing all the evidence before it, that the chance that the applicant would suffer persecution as a Tamil was remote, that it was unable to accept the applicant's claim that she was perceived to have connections with the LTTE and that there was no real chance that the applicant would suffer persecution at the hands of the security forces if she were to return to Sri Lanka. The Tribunal also found that there was no real chance that the applicant would suffer persecution at the hands of the Sinhalese community if she were to return to Sri Lanka for the reason that she was perceived to be a supporter, or more than a supporter, of the LTTE but that in any event the option of relocation in another part of the country was reasonably open to her.
Were required procedures not observed?
The first ground of review relied on by the applicant was that:
"The procedures that were required by the Act or the Migration Regulations to be observed in connection with the making of the decision were not observed."
The particulars relied upon were that:
"The Tribunal failed to act according to substantial justice and the merits of the case as required by s 420(2)(b) of the Act and failed to pursue the objective of providing a fair mechanism of review as required by s 420(1) of the Act..."
The particulars of the Tribunal's failure in this respect were that:
The Tribunal failed to have regard to the material which supported the applicants case in a real and substantial way.
The Tribunal failed to give proper genuine and realistic consideration to the evidence that Tamils are liable to persecution on the basis of being Tamils whether or not there are reasonable grounds to suspect them of being members of the LTTE and instead required there to be such grounds before the Tribunal could find a real chance of persecution.
Arbitrarily and irrationally found that the first applicant would not be perceived by the general Sinhalese population as having links with the LTTE despite evidence which the Tribunal ignored that their Sinhalese neighbours thought exactly that and further evidence that her husband even though himself not a Tamil was on account of such perceptions too afraid to live in their home."
Mr Wraight, who appeared for the applicant, submitted that the edict in s 420 of the Act that the Tribunal provide a mechanism of review that is fair and just and that in reviewing a decision, it must act according to substantial justice, required the Tribunal to consider the totality of the matters before it. The applicant's complaint was that the Tribunal did not consider the totality of the matters before it which included newspaper reports. Although emphasis was placed on matters relevant, other matters were not considered which the applicant identified. Mr Wraight submitted that the material relied upon by the Tribunal was dealt with in a cursory and dismissive way. Mr Wraight said he was not asking the Court to revisit the merits of the application but he submitted that it was contrary to justice and fairness to dismiss the material in the way the Tribunal did.
Mr Wraight relied on a passage from the decision of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, adopted in Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 13, that what was required of a decision‑maker:
"was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ..."
These comments were made in the context of s 5(2) of the Administrative Decisions (Judicial Review) Act 1977 but Mr Wraight submitted that they were applicable in refugee cases reviewable under Part 8 of the Act by virtue of a comparable provision in s 476(1)(d) and (3)(c) of the Act.
This ground is not made out as a matter of law or as a matter of fact. The only procedure relied on is found in the requirements of s 420. In my view for reasons which I set out in Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (6 May 1997, unreported) a failure to observe those requirements, particularly in a case in which it is said that the Tribunal did not look at the totality of the evidence but was dismissive of it in a cursory way, is not a ground of review under s 476(1)(a) of the Act.
Although Mr Wraight disavowed any suggestion that he was revisiting the merits, that is the inevitable result of his submission and, on any view of s 420(2)(b), that course is not available to the Court. The submission in effect requires the Court to analyse the manner in which the Tribunal analysed and weighed the facts placed before it and to reach a different conclusion. To say that the Tribunal was dismissive of parts of the evidence and should have reached a different result on the totality of the evidence is to invite this Court to revisit and reconsider the merits. That is not an available ground of review and is contrary to the manner in which the High Court has said a review of a decision upon refugee status is to be conducted: Minister for Immigration and Ethnic affairs v Wu Shan Liang (1996) 185 CLR 259, 272, 291.
The particulars of the Tribunal's failure relied upon are not so much a failure to comply with procedures or a complaint about a denial of natural justice but rather are a complaint that the Tribunal took a wrong view of the facts or failed to give sufficient weight to facts upon which the applicant relied or did not accept facts upon which the applicant relied. In essence this ground seeks a review of the facts which were before the Tribunal and invites the Court to review those facts and substitute its own findings for those of the Tribunal. That is not the role of the Court in an application such as this but even if it was, the particulars relied upon are not made out. The Tribunal set out in some detail the facts relied upon by the applicants, analysed them and explained why it did not accept that those facts led to a conclusion of a well‑founded fear of persecution for a Convention reason in the sense that there was a real chance of such persecution. The Tribunal turned its mind to the issue raised in evidence that Tamils are liable to persecution on the basis of being Tamils and found the chance that the applicant would suffer persecution as a Tamil was remote (page 19 of Decision). The facts in evidence before the Tribunal were such that it was open to the Tribunal to make that finding and I can find no justification for the submission that the Tribunal did not give proper, genuine and realistic consideration to this issue or to the whole of the evidence led in respect of it or that it dealt with the applicant's evidence in a cursory or dismissive way.
A court reviewing a decision of a Tribunal, in any event, must be very wary of considering any attack on the Tribunal's findings of fact particularly where the Tribunal has made findings on the credibility of witnesses. I refer to the authorities which establish that a court should not disturb a finding of fact of a Tribunal based on its assessment of the credit or credibility of a witness unless it is satisfied that the Tribunal did not take advantage of its opportunity to see and hear the witness or that the conclusions it reached were inconsistent with an overwhelming body of evidence or were glaringly improbable: Abalos v Australian Postal Commission (1990) 171 CLR 167, 178-9; Devries v Australian National Railways Commission (1993) 177 CLR 472, 479, Warren v Coombes (1979) 142 CLR 531, 537, 552, 553. The Tribunal found the applicant's evidence "to be unreliable" (page 19 of Decision). The Tribunal recognised that some of the applicant's inconsistencies might be attributable to her distressed state but it was unable to conclude that all the inconsistencies could be explained in that way. The manner in which the Tribunal reached its conclusions is such that the authorities to which I have referred do not enable me to disturb those conclusions.
In my view it was open to the Tribunal to find on the evidence before it that the applicant would not be perceived by the general Sinhalese population as having links with the LTTE even though there was some evidence to that effect. The Tribunal's reasoning is such that it cannot be said that the Tribunal acted arbitrarily and irrationally. In fact the Tribunal said (page 24 of Decision) "there is evidence, then, that those perceived to have links with the LTTE may face a risk of persecution at the hands of sections of the general Sinhalese population". However, the Tribunal did not accept that the applicant was or would be perceived in that way for reasons which were set out in some detail. There is no warrant for submitting that the Tribunal acted arbitrarily and irrationally. Rather the complaint is that the Tribunal did not accept the evidence or submissions propounded by the applicants on this issue. That is not a ground of review open to this Court.
Did the Tribunal make the decision in accordance with a rule
or policy without regard to the merits of the case?
The second ground of review relied upon was that:
"The decision was an improper exercise by the Tribunal of the power conferred by section 415 of the Act, in that in making the decision the Tribunal exercised the power in accordance with a rule or policy without regard to the merits of the applicant's case".
The particulars of this ground relied on were that the Tribunal failed to have regard to matters including those referred to under the first ground and instead applied general policies which did not concern the applicant. These policies were that:
Tamils in Sri Lanka have a well founded fear of persecution at the hands of the Sri Lankan authorities only if they are perceived as having connections with he (sic) LTTE and not simply because they are Tamils; and
Tamils other than young male Tamils are not subject to particularly adverse treatment by the Sri Lankan authorities."
A fair reading of the decision demonstrates that the Tribunal applied no such policies. It did not identify any such policies in the terms particularised but it did analyse evidence in respect of the basis for and the grounds of persecution of Tamils. Again, this ground is in effect seeking a merits review which is a ground not open to this Court. This ground was not substantially pressed on behalf of the applicant other than to submit that the evidence was considered in a cursory manner. It was said that the Tribunal placed reliance on cables from the Department of Foreign Affairs and Trade, but it was entitled to do so and it did so whilst at the same time considering the evidence relied upon the by applicant. The complaint in reality is that the Tribunal should have made different factual findings. That is not an available ground of review.
Was there an incorrect interpretation of the law?
The third ground relied upon was that:
"The decision involved an error of law being an error involving an incorrect interpretation of the applicable law".
The particulars relied upon were that the Tribunal misinterpreted the law by:
interpreting the definition as excluding persons who having a well founded fear of persecution are able to flee that persecution within their home country whether or not such flight is in all the circumstances reasonable as long as it does not itself give rise to persecution for a Convention reason;
interpreting 'well founded fear' as consisting of a single concept rather than a subjective element and an objective element; and
interpreting the definition so as to exclude a person who, despite having a well founded fear of persecution for a
Convention reason, might be able to flee within her country of nationality by adopting a disguised ethnic background".
I do not consider that the Tribunal made the errors of law particularised. The Tribunal correctly identified the definition of "refugee" by reference to Article 1A of the Convention as amended by the Protocol, correctly analysed the concepts of "well‑founded fear" and "persecution" by reference to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and correctly identified the principle of "internal flight" by reference to the Handbook on Procedures and Criteria for Determining Refugee Status (1979) published by the office of the United Nations High Commissioner for Refugees and the decision of the Full Court of the Federal Court in Harjit Singh Randhawa v The Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265, 269, 270. Properly understood, the Tribunal did not interpret the definition of "refugee" as excluding persons who, having a well‑founded fear of persecution, were able to flee that persecution within their home country whether or not such flight was in all the circumstances reasonable as long as it did not itself give rise to persecution for a Convention reason. The passage extracted from the judgment of Black CJ, with whom Whitlam J agreed (page 18 of Decision) makes this clear.
It is also not a correct understanding of the Tribunal's reasons to say that the Tribunal interpreted "well‑founded fear" as consisting of a single concept rather than a subjective element and an objective element. The Tribunal said quite to the contrary and stated the law correctly when it said:
"First, '(t)he term 'well founded fear' ... contains a subjective and objective element' ... Thus, not only must an applicant be in fear; there must exist circumstances which objectively support that state of mind."
The final particular of this ground is also not made out as the Tribunal did not in fact interpret the definition of "refugee" so as to exclude a person who despite having a well‑founded fear of persecution for a Convention reason might be able to flee within her country of nationality by adopting a disguised ethnic background. The passages quoted by the Tribunal from the Handbook and Harjit Singh Randhawa (supra) make this clear.
Did the Tribunal incorrectly apply the law to the facts?
The final ground relied upon was that:
"The decision involved an error of law being an error involving an incorrect application of the law to the facts as found by the Tribunal".
It was said in the particulars under this ground that the Tribunal misapplied the law by:
applying the definition as excluding persons who having a well founded fear of persecution are able to flee that persecution within their home country whether or not such flight is in all the circumstances reasonable as long as it does not itself give rise to persecution for a Convention reason;
applying 'well founded fear' as consisting of a single concept rather than a
subjective element and an objective element; and
applying the definition so as to exclude a person who, despite having a well founded fear of persecution for a Convention reason, might be able to flee within her country of nationality by adopting a disguised ethnic background.
Misapplied the law in concluding that it was open to the applicant to relocate to another part of Sri Lanka".
Mr Wraight submitted that the Tribunal should have looked at the issue whether relocation was unreasonable and if it was unreasonable it should not be taken into account. But this is what the Tribunal did. The Tribunal found that the option of internal flight appeared reasonably open to the applicant. The Tribunal considered other parts of the country were reasonably accessible to the applicant and it set out its reasons for this conclusion. The Tribunal did not fail to consider whether or not relocation was reasonable and it concluded that it was. In essence this ground seeks a review of the facts found by the Tribunal, a ground which is not open in this Court.
I have already identified why it is incorrect to say that the Tribunal applied the well‑founded fear test as a single concept rather than as having a subjective element and an objective element. The Tribunal expressly recognised and adverted to the dual subjective and objective elements.
In any event even if the Tribunal erred in its analysis or application of the principles relating to internal flight, that would not provide a basis for quashing or setting aside the Tribunal's decision as the issue of internal flight only arises if there is first established a well‑founded fear of persecution. The Tribunal found that the applicant did not have a well-founded fear of persecution in the sense that there was a real chance of persecution for a Convention reason and I have already identified why in my view those findings were open to the Tribunal to find.
Mr Wraight submitted that the Tribunal was obliged to look at all the material before it and he referred in particular to dicta in Chan Yee Kin (supra) per Toohey J at 407 and Gaudron J at 413. He submitted that the mental and emotional state of the applicant should be evaluated carefully and he criticised the Tribunal for dismissing part of the applicant's evidence because of her mental state. That criticism does not identify an incorrect application of the law to the facts as found. Rather it is a complaint about the Tribunal's findings as to the credibility of the applicant. I do not consider that I can disturb those findings having regard to the advantage the Tribunal had in seeing and hearing the applicant more particularly because the Tribunal's conclusions are quite explicable having regard to the evidence before it. Indeed the Tribunal was prepared to consider that some of the applicant's claims and evidence might be attributable to her distressed state but the Tribunal was unable to conclude that all the inconsistencies could be explained in this way.
The Tribunal's conclusion that the applicant's evidence concerning the perception that she was a terrorist or had helped terrorists because of a perceived association with the LTTE was unreliable is not a finding I can disturb consistently with principle and authority: Abalos (supra) at 178-9; Devries (supra) at 479; Warren v Coombes (supra) at 537, 552‑553. The Tribunal did not simply reject the applicant's evidence in this respect as unreliable; it set out in considerable detail why it was unable to accept the applicant's claims of grounds to fear persecution at the hands of the security forces. In so doing the Tribunal applied the "real chance" test and adopted an approach consistent with the procedure or process identified by Einfeld J (with which Foster J was in general agreement) in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151, 173-175.
It was finally submitted that the Tribunal failed to engage in real speculation about the chance of persecution of the applicant in the future and reliance was placed on the observations of Kirby J in Wu Shan Liang (supra) at 293. Reliance was placed on the Tribunal's finding that if the applicant was truly perceived to have connections with the LTTE then on the basis of information contained in Department of Foreign Affairs and Trade cables she would have grounds to fear persecution at the hands of the security forces. However the Tribunal did not accept the applicant's claims of such perception and set out in considerable detail its analysis of the facts which led to this conclusion. In particular the Tribunal did not accept that the applicant was wanted by the authorities as a suspected terrorist or someone who has harboured terrorists. The Tribunal's analysis, in my view, involved real speculation about the chance of persecution of the applicant if she returned to Sri Lanka. Accordingly there was no failure to apply correctly the applicable law to the facts as found.
The application will be dismissed with costs.
Counsel for the applicants: Mr T Wraight
Solicitors for the applicants: Satchi & Co
Counsel for the respondent: Mr C Gunst
Solicitors for the respondent: Australian Government Solicitor
Date of Hearing: 14 April 1997
Date of Judgment: 6 May 1997
I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment of the Honourable Justice Goldberg
Associate:
Date: 6 May 1997
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