Devarajan v Minister for Immigration and Multicultural Affairs

[2001] FCA 1521

FEDERAL COURT OF AUSTRALIA

Devarajan v Minister for Immigration and Multicultural Affairs [2001] FCA 1521

MIGRATION – application for review of decision of Refugee Review Tribunal affirming refusal to grant a protection visa – no error of law demonstrated – application dismissed.

Migration Act 1958 (Cth) s 476
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied

Ravi Kumar Devarajan v Minister for Immigration and Multicultural Affairs
N 1212 of 2001

ALLSOP J

26 OCTOBER 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1212 of 2001

BETWEEN:	RAVI KUMAR DEVARAJAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	26 OCTOBER 2001
WHERE MADE:	SYDNEY

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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1212 of 2001

BETWEEN:	RAVI KUMAR DEVARAJAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	26 OCTOBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review under the Migration Act 1958 (the Act) of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 25 July 2001.  The decision of the Tribunal affirmed the decision of the delegate of the Minister refusing a protection visa.  The matter has some considerable procedural history.

2. The applicant, who is a citizen of India, first arrived in Australia in September 1996.  He lodged an application for a protection visa under the Act on 16 October 1996.  In April 1997 a delegate of the Minister refused his application.  Shortly thereafter the applicant applied for review of that decision to the Tribunal.  A year later in April 1998 the Tribunal affirmed the decision of the delegate, thereby in effect refusing the applicant his application for a protection visa.

3. Another year went by which involved the applicant's application to this court to set aside the decision of the Tribunal which application was successful. Moore J on 16 June 1999 set aside the decision. Moore J on that occasion did not, as he could not, find the applicant to be a refugee under the Act. Rather he found, within the confines of s 476 of the Act, a legal error in the approach of the Tribunal on that occasion. A further hearing took place before the Tribunal in November 1999.

4. In March 2000 the Tribunal sent the applicant a summary of the applicant’s claims for comment by the applicant.  In April 2001, the applicant having been given this opportunity for comment, made further submissions to the Tribunal.  On 29 June 2001 this differently constituted Tribunal affirmed the delegate's decision to refuse the grant of a protection visa in a decision handed down on 25 July 2001.  The matter now comes to this court by way of a request of review of that decision of that Tribunal of June 2001.

5. I go through that history for a number of purposes.  The first is to indicate the length of time that Mr Devarajan's application has been under consideration.  That will become relevant in examining what the Tribunal did.  The second aspect of this length of time is that Mr Devarajan has been in Australia now for five years and it would be understandable on his part if he thought or felt that such a long stay might weigh in the balance in relation to his application in the sense that having been here for five years he may be of the view that his moral or legal entitlement to stay is perhaps strengthened.   In one sense that would be an entirely understandable and human reaction to the length of time that he has been in Australia, but it is not and cannot be a consideration that I take into account.

6. The task before me is laid out under s 476 of the Act. The applicant's appreciation of this is reflected in the drafting of the application for review which expressly recognises the need to frame his case within s 476. As I understand the claim in the application I am asked to analyse the reasons of the Tribunal by reference to paragraphs 476(1) (a), (e) and (g) of the Act. I will come back to the application of each of those paragraphs in a moment but I think I should emphasise, even though the applicant appears to be legally trained, that I am not sitting as a Tribunal to review the facts. This court is given a limited role by the Parliament in s 476. The legal and constitutional structure of this court dealing with this Act is that mistakes, if there be mistakes, of fact finding end with the Tribunal.

7. Section 476 lists a number of grounds for review. If one of those errors is present then I can do something about a Tribunal decision but those grounds do not include merely making a mistake about the evidence and the facts. So, even if I were to examine all the evidence and would myself come to an entirely different factual conclusion that is not a ground which I can use to set aside the Tribunal's decision unless an error of this kind in paragraphs (a) or (g) or (e), or (b) or (c) or (d) or (f), of subs 476(1) has led to that factual error.

8. Mr Bromwich in his careful submissions for the Minister has used an expression which is often used in this area and that is he characterises much of the submissions of the applicant as ‘merits review’.   The expression ‘merits review’ is a shorthand that lawyers use in this area and I understand him to mean that the applicant is asking me in effect really to do no more than correct factual errors of the Tribunal. 

9. With that approach in mind, I now turn to the application. 

10. The applicant is a citizen of India.  His claims for a protection visa arise out of what he claims to be his political and social views and his political and social activity in India in the past.  The Tribunal's decision is some 47 pages long, much of which is taken up reciting in some detail the claims of the applicant.  It would not be productive for me to repeat all those claims here and now.  They are extensively set out in the Tribunal's decision.

11. The Tribunal indicated at one point in its reasons that it had had difficulty in unravelling and making clear to itself the full extent and nature of all the claims.  This was not, as I read it, any personal criticism of the applicant but it does, together with the long procedural history, explain why the Tribunal forwarded a draft consolidation of the applicant’s claims to the applicant in March 2000.  As I said, I will not try and exhaustively set those claims out, but briefly they include claims of mistreatment, detention and assaults in the past both by Indian authorities and hired thugs connected to large corporate interests in Tamil Nadu.  The persecution claimed also involved wrongful and baseless charges brought against him by the authorities some of which were said still to be pending against him.  These matters arose at different times for different reasons according to his claims.  First, there was the mistreatment of himself and his wife after the assassination of Rajiv Ghandi in 1991.  Then there was his activity in opposing what he saw as harmful and corrupt private interests acting contrary to the interests of the poor and the needy, in particular in Tamil Nadu.  There was also his participation in Tamil political life in a way which he says made him fear the Tamil Tigers.  Thus for the purposes of the definition of a refugee under Article 1A(2) of the Refugees Convention 1951 as amended by the 1967 Protocol, the claims of Mr Devarajan arose from his political beliefs or opinion, in the way that expression is understood, and, perhaps, at one level, his membership of a social group. 

12. The Tribunal accepted a number of facts and these were largely set out from page 30 of the Tribunal's reasons.  These facts included that the applicant is from Madras and that his wife was a Tamil refugee from Sri Lanka.  The facts included that while his family had opposed the marriage to his wife this was eventually accepted.  The Tribunal accepted that while a student some years ago the applicant (now 48) was an active member of the youth wing of an organisation referred to by the Tribunal as DMK (Dravida Munnetra Kazhagam).  The Tribunal noted that this part of the applicant's life and political beliefs was 25 years ago and even if his claims of being taken into custody and tortured by police at that time were true that was sufficiently long ago, that is 25 years, now to be immaterial except in supporting a claim that he had been involved in politics for a long time. 

13. From page 31 of the decision the Tribunal identified a number of matters about which it had difficulty accepting the applicant's evidence.  These included his claim to be a lawyer, his claim to be involved in various political groups and his claimed connection with the Naxalites, his claim of activism in relation to particular issues, his claim about the arrest and detention of his wife and his claim of on-going interest in him by Indian authorities.  However, the Tribunal while doubting he was a lawyer gave him the benefit of the doubt and proceeded on the basis that he was.  The Tribunal accepted that the applicant had belonged to the Tamil Liberation Army (TLA) for some years in the 1980s but it did not accept that the Tamil Tigers had sought to harm him or that now some 15 years later they would be interested in harming him.  The Tribunal was prepared to accept that the applicant was or regarded himself as a supporter of the Communist Party of India (Marxist/Leninist) (CPI) but found or was of the view that he was at a sufficiently low level not to cause that political interest to be a source of likely harm.  It found that the party did not pay him or support him from 1991.  These matters are found at page 33 and thereabouts of the reasons.

14. The Tribunal considered that the applicant would experience no adverse consequences as a result of his activities with the TLA and the CPI and the Tribunal did not accept that the applicant was more than an enthusiastic reader of magazines such as "New Democracy" and "New Culture", being, I take it from the material before me, left wing or communist magazines; and it further found that the applicant was not involved with these magazines in the exposure of wrong doing by the police and other  authorities.  These matters are dealt with at pages 34 and 35 of the reasons.

15. The Tribunal then examined at page 35 and following claims of assault and arrest and being targeted by interest groups and participants in the political process from approximately 1992.  By way of background it did not accept that the applicant had been arrested in the period 1976 to 1991, or indeed in September 1994.  These matters are set out on pages 35, 36 and 37.

16. The Tribunal at page 38 dealt with his account of arrest and imprisonment in 1995 and found that account not to be credible.  The Tribunal said that if the applicant served a term of imprisonment as he claimed, it was for a reason unconnected with the Refugee Convention and it did not believe him in his claim that a judge warned him not to get involved in politics again and to leave the country.  This material concerning the claimed events of 1995 is found at pages 38 and 39 of the reasons.

17. The Tribunal then from page 39 through to pages 41 and 42 dealt with the claims of outstanding charges against the applicant.  In respect of these matters the Tribunal said it was unable to accept that the applicant had any outstanding charges against him and consequently it did not accept that he would face court because of them, nor would he experience an unfair trial.  That latter point as to the likelihood of experiencing a fair trial was an independent finding on page 42, based on country information.

18. The Tribunal went on and said:

    If the applicant was to be taken into custody I do not believe that it will be for the reason he has told of in his application, that of his political opinion and activities.

19. It went on, at page 42, to find that it was unable to accept that the police or security authorities in India have any continuing interest in the applicant for the reasons he had submitted, and the Tribunal found that it did not accept that the evidence indicated that any further charges were or would be laid against him because of political activity, and that it consequently did not believe that either the police or the security forces or the Tamil Tigers or any other organisation he claims to have been associated with, will have any adverse interest in him because of Convention related matters.

20. The Tribunal then turned to the topic of what happened in 1991 to the applicant's wife.  In this respect the Tribunal accepted that the applicant was arrested and mistreated in 1991 and that the applicant's wife may have been picked up and detained soon after the assassination of Rajiv Ghandi, but it did not accept that the applicant's wife was required to report to the police regularly for as many years as the applicant had claimed, at least until 1997, nor was it prepared to accept that she was arrested and detained in 1993 or in September of the following year.  These matters are dealt with on page 43 of the reasons.

21. The Tribunal was not satisfied that the applicant being struck off as a lawyer had anything to do with matters contained within the Refugee Convention. It is important, though I appreciate that it is distasteful for the applicant, to appreciate that the Tribunal rejected the accuracy and reliability of the applicant's evidence. I appreciate that the view the Tribunal has taken about the evidence may be a matter of deep hurt to the applicant. It is never easy for people to accept the views of a stranger that their evidence is unreliable and should be rejected. This is perhaps especially so for someone who has been a lawyer. Unfortunately, however, it is a matter of some importance, though I do not wish to dwell on it unnecessarily. The Tribunal in cases such as this is charged with a heavy responsibility. Subject to errors identified in s 476 it is the last point of fact finding. As I said earlier, even if I were of the view that I would come to a different view, unless s 476 is in engaged I can do nothing about the Tribunal's decision. So, I must turn to the grounds of review in the application and in the submissions.

22. The first is that procedures that were required by the Act or Regulations were not observed in connection with the making of the decision. This is a reflection of the ground of review in para 476(1)(a). From the submissions and from the application I take it that what is really intended by this is the proposition that material findings of fact were not correctly made. Section 430(1) sets out the obligations of the Tribunal in making and preparing a written statement. That section includes the requirement under para (c) to set out the findings of any material questions of fact and refers in para (d) to evidence or any material upon which the findings of fact were based.

23. Until the decision of the High Court of Australia this year in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 there was a body of case law in this court which might have gone to support the proposition that if findings of fact should have been made but were not, there was an error of procedure under s 430. Yusuf made it clear that just because a court would have found other facts as important, being facts which were not in the reasons of the Tribunal, did not mean there was an error of procedure under s 430.  Another way of explaining this is that some cases in this court seem to mean that if this court thought material facts had been left out, because this court thought these facts were material, there was an error in not following s 430.  The High Court said that that approach was wrong.  It emphasised that fact finding was for the Tribunal and just because this court thinks other facts were important is not a reason for concluding that the Tribunal has committed any legal error.

24. I have examined the reasons of the Tribunal carefully and the reasons reflect an apparently serious and genuine application by it to the task it had.  It approached the matter and approached the evidence in a way that was not illogical or irrational or unreasonable.  Its conclusions appear to me to be supported by some probative material and logical grounds.  The Tribunal appears to me to have attended to the questions required of it by the Act and Regulations.  It may be, and I think I can conclude that it is the case, that the applicant deeply disagrees with the factual conclusions and findings of the Tribunal.  However, there appears to me to be material available to support the conclusions and approach of the Tribunal, bearing in mind the view it came to as to the reliability of the applicant's evidence.

25. The application also refers to paragraphs (e) and (g) in s 476(1). As to para (e), I am not able to discern from the material any error of law in the approach adopted by the Tribunal. As to para (g), that there was no evidence or other material to justify the making of the decision, the submissions of Mr Bromwich as to the difficulty of meeting this kind of review in the Act, are in my view, correct. Even if it be the case that in relation to the First Information Report there was a factual error by the Tribunal, para 476(1)(g) requires it to be demonstrated that there was no evidence or other material to justify the making of the decision.

26. The applicant indicated through his interpreter that he had some difficulty in understanding the effect of para 476(1)(g).  I explained that para 476(1)(g) is qualified by subs (4) and in particular here, para (b) of subs (4).  That sets out what might be seen as a necessary pre-condition for para 476(1)(g) to be engaged.  That is, if a fact is of such importance and the decision was based on it and that fact did not exist, one can then move into 476(1)(g).  But it does not follow that satisfying subs para 476(4)(b) completes the exercise laid out in para 476(1)(g).  Counsel for the Minister quite legitimately interrupted me to make clear that the Minister’s submissions are that 476(1)(g) must be satisfied before one goes to (4)(b).  I noted that that construction may well be right, but what I wanted to do was to make sure the applicant understood that even if it be the case that an important finding of fact, that could be seen as central to a fact finding process, did not have a factual foundation (which might see para 476(4)(b) apparently satisfied) then if there is otherwise material upon which the decision can rest (for para 476(1)(g)) any error can only be characterised as a factual error and para 476(1)(g) is not engaged.  I noted that the matter could be looked at from two ways.  Mr Bromwich’s point was that there is ample evidence to support the decision, therefore the inquiry never goes to para 476(4)(b).  Here, the Tribunal's decision is amply supported by underlying evidence and even if there are factual errors, which was not admitted, the matter did not raise a para 476(1)(g) point.

27. The purpose of my explanation was that even if it could be said that a very important fact was found without factual foundation, there are a number of problems.  One it is necessary to prove the negative within para 476(4)(b) (“and that the fact did not exist”).  Secondly, 476(1)(g) is not governed or controlled by 476(4)(b).  I explained to the applicant that one could go to para 476(4)(b) first and if one could show that what was in para 476(4)(b) was met, that did not mean para 476(1)(g) was met.  The Minister's approach was that one never goes to para 476(4)(b) because there was evidence available to support the decision, that is the ultimate decision.

1. I explained that there may be two ways of looking at the operation of paras 476(1)(g) and (4)(b) and the Minister may be correct, but it was not something I had to decide.  I explained that my point in dealing with it was to make clear, even if it be correct that an important fact found by the Tribunal was wrong and even if it be correct that the fact found did not have any evidence for it, that does not mean para 476(1)(g) is satisfied.  There has to be, for 476(1)(g), no evidence or other material to justify the conclusion.

2. Now, even if the applicant disagrees with the reasoning process, the fact finding and the Tribunal's view of him, my view is that there was material before the Tribunal that it could use to come to that conclusion.  That is to say, even if it be the case that there was an error of fact finding by the Tribunal, in my view there was evidence or material which could justify the conclusion even if that material reflects views of the Tribunal that the applicant disagrees with. 

3. Thus, in dealing with the submissions of the applicant, ultimately, they all are submissions which go to the correctness or reliability of the fact finding process of the Tribunal.  This is so in particular of paras 1 and 3 of the submissions.

4. As to para 2 of his submissions, to the extent that this seeks to characterise what Moore J did as a finding that in some fashion the applicant is entitled to refugee status, this is a misunderstanding of what his Honour did.  The result of Moore J’s decision was a fresh hearing at the Tribunal and that is what I have to deal with.

5. Paragraph 4 in particular deals with what is said and thought to be the evidentiary shortcomings of the Tribunal, at least in relation to the material tendered within (what I provisionally marked as) exhibits A and B.  Whether or not this is the material the Tribunal described as what the applicant said was very sensitive at page 42 of the decision perhaps matters not.  This material, I should add, goes to para 3 of the submissions as well as para 4.

6. In any event my task on review is not to find facts about the likely persecution or not of the applicant if he returns to India.  My task is to see whether there has been any error in the Tribunal in its approach, that is, whether the Tribunal's decision was, within the confines of the Act, one made according to law.  As I have said earlier, the decision of the Tribunal may be incorrect as a matter of fact but that does not mean that it has not been made lawfully and according to law.  While to a lay person that distinction may be strange, the applicant is a former barrister or a lawyer: the difference is administrative fact finding on the one hand, and ensuring in the courts that lawful procedures and a lawful approach is made to administrative fact finding, on the other hand.

7. For those reasons, while I accepted exhibits A and B provisionally or conditionally into evidence, they are irrelevant to this review and I reject them.  Lest there be any doubt about what they were they can remain on the file as MFI A and MFI B as the evidence conditionally admitted but now rejected. 

8. In conclusion, I am unable to find in paras (a), (e) or (g) or indeed in any other paragraph in s 476 any basis to conclude that there was an error in approach of the Tribunal warranting intervention under s 481. At the risk of repetition may I simply add that that conclusion does not carry with it my view of the correctness or incorrectness of the fact finding or the correctness or incorrectness of the Tribunal's approach and view of Mr Devarajan's evidence. That is not said at all by way of criticism of the Tribunal, but I say it because sometimes I feel that applicants may think views, as I have expressed, to be an endorsement of any personal criticism of an applicant’s claim that was made in the Tribunal's reasons. Mr Devarajan should not be of the view that I am endorsing any personal criticism there may be of him or his claim in the reasons of the Tribunal. My conclusion is only that there was no error of the kind contained in s 476 demonstrated to exist in the Tribunal’s decision.

9. In the circumstances I can see no basis for review under s 476 and my conclusion is that the application be dismissed.

10. The parties addressed me on the question of costs. The question of costs is governed by s 43 of the Federal Court of Australia Act.  That section says that subject to para (1A), which is irrelevant, the Court or a judge has jurisdiction to award costs in all proceedings.  That is a very wide power, as the Full Court on a number of occasions has said and indeed the High Court has said.  However, it is a power to be exercised judicially.  It is not a power given to me to exercise by personal whim or preference.  Costs usually follow the event.  That is appropriate.  Sometimes a costs order is made which does not follow the event.  Sometimes no order is made.  But in my view, though some times apparently harsh, the law does not enable, generally speaking, a successful party to be deprived of his, her or its costs because of the economic circumstances of the losing party, unless it be the case that those circumstances have arisen by reference to the conduct of the litigation or other matters in issue between the parties.

11. I can see no principled basis upon which I might refuse to award costs because of any impecuniosity of the applicant. For the purposes of the application I am prepared to accept that he is impecunious. I do not think it would be a principled application of s 43 if I were to do so. Therefore the orders of the Court are:

12. 1.   The application be dismissed.

13. 2.   The applicant pay the respondent's costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             7 November 2001

The Applicant appeared in person, assisted by an interpreter
Counsel for the Respondent:	Mr R Bromwich
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 October 2001
Date of Judgment:	26 October 2001