Devege v Minister for Immigration and Multicultural Affairs
[1999] FCA 1376
•7 OCTOBER 1999
FEDERAL COURT OF AUSTRALIA
Devege v Minister for Immigration & Multicultural Affairs [1999] FCA 1376
MIGRATION – application for review of a decision of the Refugee Review Tribunal – whether unreasonableness constitutes an error of law – whether the “real chance” test in Chan v The Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 was correctly applied by the Tribunal – the relationship between s420 and s476(1) of the Migration Act 1958 (Cth).
Migration Act 1958 (Cth) ss 36(2), 420, 476, 485
Migration Regulations 1994 Sch 2
Chan v The Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 cited
Eshetu v Minister for Immigration & Multicultural Affairs (1997) 145 ALR 621 referred to
Eshetu v Minister for Immigration & Multicultural Affairs; Re Minister for Immigration & Multicultural Affair; Ex parteEshetu 62 ALR 577 followedRANJITH WIJESINGHE ILANDARI DEVEGE V
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRSN 552 of 1999
MATHEWS J
7 OCTOBER 1999
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 552 OF 1999
BETWEEN:
RANJITH WIJESINGHE ILANDARI DEVEGE
ApplicantAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RespondentJUDGE:
MATHEWS
DATE OF ORDER:
7 OCTOBER 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application is dismissed with 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 552 OF 1999
BETWEEN:
RANJITH WIJESINGHE ILANDARI DEVEGE
ApplicantAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent
JUDGE:
MATHEWS
DATE:
7 OCTOBER 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 May 1999 in which the Tribunal affirmed a decision of the respondent’s delegate to refuse the applicant’s application for a protection visa.
Factual Background
The applicant was born on 12 January 1961 in the western province of Sri Lanka. He is a Sri Lankan national. He and his family are Sinhalese. After completing his schooling, he studied law at the University of Colombo and graduated with a Bachelor of Laws in April 1990. In November 1991, he was admitted as an Attorney at Law of the Supreme Court of Sri Lanka.
Towards the end of his legal studies, the applicant was introduced by friends to an organisation called the Lawyers for Human Rights and Development Centre (LHRD). He became involved in the centre’s work, and in July 1990 began working for the centre on a full-time basis.
At that time – and indeed now – human rights violations were frequent occurrences in Sri Lanka. There has been open conflict between the government and the Liberation Tigers of Tamil Eelam (LTTE), an insurgence organisation which has been fighting for a separate state for the Tamil minority in Sri Lanka. This conflict has led to serious and continuing human rights abuses, including unexplained disappearances, extra-judicial killings, arbitrary arrests and detention, and the torture and mistreatment of detainees.
The applicant conducted a full range of human rights cases whilst working for the LHRD. This did not make him popular with some segments of Sri Lankan society. On one occasion he and a colleague were returning from a slum area when they realised that they were being followed. They reported this to their organisation which in turn reported it to the police. As a result of this, police protection was provided for the building occupied by the LHRD, but not for its employees after they left the building.
In January 1992, the applicant left the LHRD and commenced his own practice. His work consisted mainly of criminal and labour law cases. A great deal of it was referred to him by the LHRD and, from 1996, by a predominantly Tamil trade union. In addition, after the cease-fire between the LTTE and the government broke down in 1995, the applicant was asked to represent numerous Tamils who had been arrested on suspicion of belonging to that organisation. These cases were referred to him, the applicant said, because he was Sinhalese, because he had experience in human rights cases, and because he was willing to assist Tamils. He had no way of knowing whether his Tamil clients were in fact members of the LTTE.
The applicant’s eventual departure for Australia, in September 1997, was triggered by five incidents. The first occurred in June 1996 when three unknown persons came to his home and threatened him. He was told that he should stop representing Tamils as they came from the LTTE. If he continued to do so, he was told his life would be in danger as he would also be treated as part of the LTTE.
The second incident took place the following month, in July 1996. Whilst the applicant was returning home one day he realised that a van was following him. When he reached his home five persons alighted from the van and took hold of him. His wife began to scream and they locked her in the house. They then dragged the applicant about 100 to 200 metres from his home where they assaulted him. They questioned him about a particular Tamil client and told him that he should not continue to represent Tamils who had been arrested on suspicion of belonging to the LTTE. They then let him go and he returned home.
The applicant told the Chairman of the LHRD about this incident and about the fact that his interrogators had been enquiring about this case. The Chairman told him that the LHRD had also received threats, and warned the applicant to be careful. The applicant did not complain to the police about the incident. He was afraid to do so, he said, because his assailants had demanded that he not report the matter to anyone, and in any event he suspected that his assailants were themselves police officers.
In September 1996, the applicant came to Australia for a conference on industrial law. On his return to Sri Lanka, he and his wife moved to a different town where he continued to work as a lawyer in sole practice and to appear in cases involving human rights violations. In a number of these cases he represented Tamil youths who had been arrested on suspicion of membership of the LTTE. Most solicitors, he said, were unwilling to do this sort of work.
The third incident took place in January 1997. Two Sinhalese persons came to the applicant’s home one evening and asked him to come and assist a friend who had been arrested and was detained at a nearby police station. The applicant had no suspicions, and went with them in their van. However, they did not go to the police station. Not far from the applicant’s home, the van stopped and three other people got in. The van kept going and eventually stopped a considerable distance from the applicant’s home. The applicant was asked about a number of his Tamil clients. It was clear, he said, that these people knew many of the details of the cases in which he had been involved. They then “beat him up”, as he put it, and left him alone on the road. He later found a taxi and went home.
The fourth incident took place in April 1997. The applicant was standing at a bus stop when a van stopped near him. Three persons got out and pulled him in. They gagged him, blindfolded him and tied his hands. They demanded the combination lock for his briefcase and then questioned him about its contents. They were particularly interested in a case involving a number of Tamils who had been arrested and detained, and asked him general questions about the LHRD. After some considerable distance the van stopped, the occupants removed the applicant’s blindfold and pushed him out of the van, throwing his empty briefcase after him. He again returned home by taxi.
After these incidents, the applicant was apprehensive for his safety. He and his wife moved to her family home in Kegalle near Kandy. On the evening of 12 July 1997, five people came to their home. They forced the front door open. One of them held the applicant’s wife whilst another two assaulted the applicant’s father-in-law. They accused the applicant of aiding and abetting the Tamil Tigers. They then took him in a van to a house about half an hour’s distance away. There the applicant was stripped and hung naked by his legs. He was interrogated as to whether he was helping the LTTE and why he was representing Tamils. He was later untied and told to lie down on a bench. Two other people entered the room. One of them pointed a rifle at the applicant’s head and asked if he was willing to die. He told the applicant that he was a traitor who had betrayed his own race. Later the applicant’s clothing was returned, he was taken in a jeep and thrown out into the dark with a warning that this was his last chance. The applicant stopped a passing lorry and was driven home where he arrived at about 5.30 am.
As a result of this incident the applicant sustained injuries which required medical treatment. He decided that it was unsafe for him to remain in one place, and started moving between the homes of various family members. He was unable to work during this period.
The applicant and his wife determined that it was unsafe for him to remain in Sri Lanka. He enrolled for an impending legal conference in Australia and on 18 September 1997 left Sri Lanka, using his own passport. He entered Australia the following day on a visitor’s visa. On 23 October 1997, he applied for a protection visa. No interview was held and on 29 October 1997, the application was rejected by the respondent’s delegate.
The applicant applied to the Tribunal for review of the delegate’s decision. He obtained the services of a migration lawyer who presented a lengthy submission to the Tribunal, accompanied by a further statutory declaration of the applicant. In this declaration the applicant referred to the continuing problems in Sri Lanka and the likelihood that he would be arrested and mistreated by the authorities were he to return. He would not, he said, be prepared to stop representing Tamils and would want to continue his involvement in human rights work. He said that the people who abducted and mistreated him were members of the Sri Lankan security forces, and while they were not acting officially, their actions were condoned by the Sri Lankan Government. Accordingly, he was unable to seek official protection, and the danger to his well-being would continue upon his return. He said that since his departure from Sri Lanka his brother has been harassed and interrogated by the authorities in order to obtain information about him (the applicant).
The hearing before the Tribunal took place on 20 April 1999. The Tribunal received written material submitted by the applicant, including a number of references from Sri Lankan lawyers who confirmed the substance of the applicant’s account of his experiences in that country. A considerable amount of country information was also before the Tribunal. The applicant gave evidence at the hearing, and although the transcript of his evidence was not before me, I am assured that it was generally in accordance with the material otherwise contained in his statutory declarations. In so far as there was further material of relevance, it was referred to in the Tribunal’s decision.
At the close of the hearing the applicant and his representative were given an opportunity to provide further material or comments to the Tribunal by 3 May 1999. This offer was taken up, and on 3 May 1999 a further submission was lodged with the Tribunal accompanied by another statutory declaration. In it the applicant dealt with a suggestion that had been raised at the hearing, namely that he might be able to practise his profession in safety, without persecution, were he to relocate to Colombo. (It had been noted that the various incidents precipitating his departure had all taken place outside the metropolitan area.) The applicant, in this statutory declaration, said that human rights violations are, if anything, more prevalent in Colombo. It would not be possible for him to live and practise with safety in Colombo, he said. Moreover, he would not be prepared to engage in other types of work merely to secure his own personal safety. Having seen “the harassment and the mistreatment suffered by innocent people at the hands of the authorities” his conscience required that he continue his human rights work.
On 7 May 1999, the Tribunal rejected the application and affirmed the decision not to grant the applicant a protection visa. It is this decision which the applicant seeks to have reviewed in these proceedings.
Relevant Criteria
The criteria for the grant of a protection visa are to be found in s 36(2) of the Migration Act 1958 (Cth) (“the Act”), and Subclass 866 in Sch 2 to the Migration Regulations 1994. Both provisions require that the applicant for a protection visa be a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). Article 1 of the Convention defines a “refugee” as any 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 …”.
The Tribunal found that the applicant failed to meet this criterion.
The Tribunal’s Decision
The Tribunal in its decision described the criterion referred to above. It discussed some of the cases relevant to the criterion, and then addressed the evidence adduced in the applicant’s case. It set out the applicant’s professional background and described the incidents which precipitated his departure from Sri Lanka. It referred to the submission from the applicant’s representatives to the effect that the applicant faced a “real chance” of persecution at the time he left Sri Lanka and that this should be taken to continue in the absence of evidence that circumstances had changed in the meantime. If the applicant were to resume practising law anywhere in Sri Lanka, the submission urged, this would bring him to the attention of the authorities at whose hands he could suffer persecution.
The Tribunal went on to detail the evidence which had been given by the applicant at the hearing. He had again described the incidents which had led to his departure from Sri Lanka. He was asked about the perpetrators, and said that, although different people appeared to be involved on each occasion, they were always fit young men. They never identified themselves, but he inferred from their appearance and manner that they were members of the Sri Lankan army. In referring to the conflict with the LTTE, he said that they had made comments such as “we are giving our lives for our country…and you people are traitors.” He also told the Tribunal that, since his departure from Sri Lanka, his wife had twice received evening visits from the same kind of people, asking about his whereabouts. He advised her to complain to the police. She did so, and the police came and questioned family members.
The applicant was questioned by the Tribunal as to why he had not sought police protection or complained to any of the other authorities, such as the Human Rights Commission or the Sri Lankan Bar Association. The applicant replied that his assailants during each of these incidents warned him against complaining to authorities. He thought that making a complaint would not result in any positive action and would be likely to place his life in danger.
It was also at the hearing that the possibility of relocation to Colombo was first raised. The Tribunal provided the applicant and his adviser with material from the Department of Foreign Affairs and Trade (DFAT), dated July 1996 and August 1998, which indicated that notwithstanding some difficulties outside Colombo, human rights lawyers operated safely in Colombo and had done since 1992. The applicant responded that he did not see any difference between living in Colombo or outside it. He and his adviser were, as already mentioned, given a further period to provide any additional material and/or submissions on this matter, an invitation which was taken up within the stipulated time. The Tribunal’s decision went on to describe the material which was presented to it in response to this invitation.
The Tribunal concluded that the applicant was a reliable and credible witness. It accepted that the incidents had taken place generally as described by him. It accepted also that this pattern of incidents amounted to persecution of the applicant for a Convention reason, namely his imputed political opinion. However, it went on to comment that there was no evidence that the higher authorities in Sri Lanka had condoned the incidents or would ignore any complaints. There was no evidence that the applicant had been constrained from complaining to or seeking protection from the available authorities. Indeed, the Tribunal commented that those perpetrating these events clearly believed that complaints to the police might create difficulties for themselves, as they specifically warned the applicant against making any such complaints. The Tribunal emphasised the applicant’s failure to complain to other organisations which were available in Sri Lanka, such as the Bar Association or the Human Rights Commission.
The Tribunal went on to discuss the question of relocation. It commented that the incidents described by the applicant had all occurred during a relatively short time frame, and within a relatively small radius which was outside Colombo. The Tribunal concluded:
“In all the circumstances, the Tribunal is satisfied that these incidents originated with members of a particular Army unit in that area rather than as part of a policy directed or condoned or permitted by the national authorities. The Tribunal is satisfied that the Applicant is not at risk from the Sri Lankan authorities, as distinct from a particular group of Army personnel in a particular place acting independently.”
The Tribunal proceeded to comment that the international community is not under an obligation to provide protection outside the borders of the country of nationality if real protection can be found within those borders. Therefore, even if applicants have a well-founded fear of persecution in their home region, the Convention does not provide protection if they could, nevertheless, avail themselves of the real protection of their country of nationality elsewhere within that country [Randhawa v MILGEA (1994) 52 FCR 437 at 440-41].
The Tribunal proceeded to refer to information from DFAT provided in 1992, 1996 and 1998. The latter two entries were highly relevant to the Tribunal’s finding, and bear repetition here:
“DFAT cable from Colombo, 0.CL170 of 5 July 1996 (CISNET CX1698) stated:
‘Question B – Current Situation of Lawyers Involved in Human Rights Issues
Human rights lawyers and activists have felt safe to operate safely in Colombo since 1992. They are sometimes subjected to visits by police, which are unpleasant, but not threatening. Prior to 1992, human rights lawyers were threatened, harassed and some were killed. The current government is much more committed to the protection of human rights that the previous government, and human rights lawyers are allowed to operate more freely than they could between 1985 and 1992. However, even under the current government, human rights lawyers believe it is not safe for them to operate outside Colombo. This is why almost all habeas corpus applications (which make up a substantial proportion of human rights legal work) are filed in Colombo rather than in regional high courts (which also have jurisdiction), irrespective of where the person is being held.Human rights lawyers and legal activists would be offered the same level of protection as anyone else who was threatened. Outside of Colombo, human rights lawyers have often used NGOs such as peace brigade international to escort them to court for protection.
However, the International Peace Brigade told us they no longer receive requests for accompaniment of lawyers and other witnesses to Commissions investigating disappearances, which indicates that they are no longer harassed. However, human rights lawyers in the Eastern Province are still reluctant to take on high profile human rights cases and rely on lawyers from Colombo.’
(The caveat in respect of the Eastern Province is not relevant to the Applicant’s circumstances).
DFAT advice of 31 August 1998, Country Information Report No. 336/98 (CISNET CX31576) confirmed:
‘There is no change in the position we have maintained in the commentary in earlier advice…we have also not heard of any harassment of barristers involved in human rights cases. It is our assessment, based on discussions with human rights lawyers, that their operating environment continues to improve.’”
Having quoted this material, the Tribunal made the following finding of fact:
“The Tribunal is satisfied that it is reasonably open to the applicant to live and practice (sic) in Colombo, where the evidence indicates he may undertake human rights work without encountering official or unofficial harassment or threats.”
It thus concluded that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention and therefore does not satisfy the necessary criterion for a protection visa.
The Grounds of Review
The application to this Court, dated 10 June 1999, raised the following grounds of review under s 476 of the Act:
(i)that procedures that were required by the Act to be observed in connection with the making of the decision were not observed [s 476(1)(a)]; and
(ii)that the decision involved an error of law being either an incorrect interpretation of the applicable law and / or an incorrect application of the law to the facts as found by the Tribunal [s 476(1)(e)].
In written submissions provided to the Court before the hearing, the applicant’s counsel, Mr Asuzu, re-stated the first ground by claiming that the Tribunal, in reviewing the decision, did not act according to “‘substantial Justice’ and the merit of the case” (sic). Under this head, the submission analysed the Tribunal’s findings and reasons, and submitted that a number of relevant issues were “considered but discarded” by the Tribunal. The submission referred to the test enunciated by the High Court in Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”), and submitted that the Tribunal had incorrectly applied this test. It was submitted that the Tribunal’s decision was flawed by the Tribunal’s failure to give proper consideration to relevant factors.
Other defects in the Tribunal’s reasonings were raised in the submission. These essentially related to the Tribunal’s findings of fact which were said to be unreasonable and unjustified by the evidence. The submission quoted s 420 of the Act which provides as follows:
“s 420 Refugee Review Tribunal’s way of operating
420 (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.”
The submission went on to rely on the majority judgment in this Court in Eshetu v Minister for Immigration & Multicultural Affairs (1997) 145 ALR 621. It claimed that s 420 sets out procedures which are required to be complied with by the Tribunal so that a failure to do so constitutes a ground of review under s 476(1)(a) of the Act.
As to the second ground of appeal, that the decision involved an error of law, Mr Asuzu’s submission quoted the test, from Chan, that if there is a “real chance” that the applicant will be persecuted, his fears should be characterised as well founded for the purposes of the Convention. It must be inferred, the submission urged, that the Tribunal, in concluding that the applicant did not have a well founded fear of persecution, had applied a test other than that enunciated in Chan. It was further submitted that there was no material before the Tribunal which justified the conclusion that the authorities would be unlikely to take “adverse action” against the applicant if he were to return to Sri Lanka. This error, it was urged, should lead to a finding that the Tribunal was “acting upon impermissible reasons and reaching unreasonable conclusions in the process”. Finally, it was urged that the Tribunal had placed insufficient weight upon the circumstances as they existed when the applicant left Sri Lanka, which grounded his fear of persecution. It was clearly a well-founded fear at the time, and in the absence of evidence indicating a material change in Sri Lanka, it was submitted that an applicant should not be “compelled to provide justification for his continuing to possess a fear which he had established was well-founded at the time he left the country of nationality.”
Discussion of Issues
The first ground of review relies upon the proposition that a failure by the Tribunal to observe the exhortations contained in s 420 of the Act can constitute a failure to observe “procedures required under the Act” for the purposes of s 476(1)(a) and can thus constitute a basis for seeking review in this Court. This was the view of the majority of this Court in Eshetu v Minister for Immigration & Multicultural Affairs (above). However, on appeal to the High Court, this proposition was resoundingly rejected (Eshetu v Minister for Immigration & Multicultural Affairs; Re Minister for Immigration & Multicultural Affair; Ex parteEshetu 62 ALR 577 (“Eshetu”)). The majority of the High Court allowed the appeal and set aside the orders made by the Full Court. All seven judges discussed the relationship between s 420 and s 476(1)(a). All of them, including the two minority judges, found that s 420 serves to describe the general nature of merit review proceedings, rather than to mandate specific procedures to be observed by the Tribunal. Accordingly, a failure to observe procedures required by s 420 cannot constitute a ground of review under s 476(1)(a).
It follows that the applicant’s first ground of review, namely that the Tribunal failed to comply with an obligation imposed by s 420, must fail.
The second ground of review is that the Tribunal’s decision involved an error of law under s 476(1)(e) of the Act. So far as I can discern, the “errors” are said to be threefold.
First, it is suggested that the Tribunal, whilst paying lip service to the proposition that an applicant’s fears will be taken to be well-founded if there is a “real chance” of persecution (“the real chance test”) erred in its application of this test to the applicant’s circumstances.
Secondly, it is suggested that there was no evidence to support the Tribunal’s conclusion that the Sri Lankan authorities would be unlikely to “take adverse action” against the applicant if he were to return to Sri Lanka.
Thirdly, it is suggested that the Tribunal placed “insufficient weight” upon the circumstances as they existed when the applicant left Sri Lanka, which grounded his fear of persecution. In the absence of evidence of change, the Tribunal should have found that the applicant’s fear of persecution, which was well-founded when he left Sri Lanka, remained so at the time of the Tribunal’s decision.
In relation to the first argument, the applicant’s submission, purporting to quote from the judgement of McHugh J in Chan at 429, was as follows:
“As the US Supreme Court pointed out in Immigration and Naturalisation Service v. Cardoza-Fonseca (1987) 480 U.S. 421, at 440, citing its earlier judgment in Immigration and Naturalisation v. Stevic (1984) 467 U.S. 407 at 424-425 an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10% chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility must be excluded. But if there is a real chance that the applicant will be persecuted, his fear should be characterised as ‘well-founded’ for the purposes of the Convention and Protocol.”
The submission continued in the following terms:
“My submission on the comment of the delegate of the Minister and affirmation by the RRT, that the applicant has not “substantiated” a well-founded fear, is that, there is an inference that in coming to such a conclusion, they did apply a test other than that applied in Chan. So that the decision so reached had been vitiated by error.”
I asked Mr Asuzu at the hearing to identify the legal error suggested by the applicant under this head. He replied that the Tribunal must be taken to have ignored the real chance test in the applicant’s case. As I understand it, he was saying that the applicant’s fear of persecution in Sri Lanka was so self-evidently established on the material before the Tribunal that the Tribunal’s ultimate finding, namely that the applicant was not a person to whom Australia owed protection obligations, cannot have been reached by applying the relevant test; or, if it was, it was perverse.
Mr Asuzu, in his oral and written submissions, eschewed the use of the phrase “Wednesbury unreasonableness”. However, the substance of his submission directly raised this issue. In effect, he was saying that the Tribunal’s conclusion was so unreasonable that no reasonable tribunal, applying the appropriate legal standards, would have come to such a conclusion. This ground of review is expressly excluded by s 476(2)(b) of the Act. Moreover, the judgment of the High Court in Eshetu makes it clear that there can be no alternative way of raising the same issue, either through the medium of s 420 or even under s 75(v) of the Constitution.
I have searched for alternative and more acceptable ways of expressing the applicant’s submission under this head. It might possibly be taken as a submission that the Tribunal, in requiring the applicant to “substantiate” a well-founded fear, was erroneously suggesting that he bore the onus of proof on this issue. However, the Tribunal, during the course of its decision, correctly stated that there is no onus of proof in administrative inquiries. Nor is there any indication that the Tribunal in fact applied an erroneous test in this regard. Indeed, I have been quite unable to find any reference in the Tribunal’s decision to the applicant’s failure to “substantiate” a well-founded fear. The word “substantiate” was used by the Minister’s delegate in her original decision. But this was not adopted by the Tribunal; and in any event, the word was used in an entirely unexceptionable context. It was never suggested by either the delegate or the Tribunal that the applicant bore the burden of establishing the matters upon which he relied.
In the result, the first matter raised by the applicant under this ground cannot be made out.
The applicant’s second argument is that there was no evidence to support the Tribunal’s conclusion that the Sri Lankan authorities would be unlikely to take adverse action against him if he were to return to Sri Lanka. This argument has given me some concern, for I frankly doubt that I would have reached the same conclusion on this matter as the Tribunal did. However, it cannot be said that there was no evidence to support the Tribunal’s finding. The Tribunal clearly relied upon the country information, together with evidence as to the time and place of the assaults against the applicant, and drew inferences to the effect that the applicant’s problems were local ones which would be unlikely to follow him to Colombo. The mere fact that I might not have drawn the same inferences from the same material is clearly an inadequate basis for review. And even if I regarded the Tribunal’s finding as being so unreasonable that no tribunal could reasonably have reached it (and I do not think that my misgivings go so far), this would not avail the applicant in these proceedings, as discussed above.
The third matter raised by the applicant under this ground is encapsulated in the following two paragraphs of the applicant’s counsel’s written submissions:
“Finally, RRT had placed insufficient weight upon the circumstances as they existed at the time of departure, which grounded my client’s fear of persecution. In the absence of compelling evidence to the contrary, the Tribunal should not have inferred that the grounds for such fear had not been made out or that it had dissipated, when it considered only the situation in Sri Lanka, prior to 1992.
In the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time he left the country of nationality.”
This portion of the applicant’s submission is taken almost directly from the judgment of Mason CJ in Chan at p 391. The following is the full text of His Honour’s observations:
“The Full Court placed insufficient weight upon the circumstances as they existed at the time of departure which grounded Mr. Chan’s fear of persecution. In the absence of compelling evidence to the contrary the Full Court should not have inferred that the grounds for such fear had dissipated. While the question remains one for determination at the time of the application for refugee status, in the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left the country of his nationality. This is especially the case when the applicant cannot, any more than a court can, be expected to be acquainted with all the changes in political circumstances which may have occurred since his departure. Those changes are a matter which, if they were to be relied upon, needed to be established and stated by the delegate in reasons. As I have said, the required justification was not established. However, I should not be taken as saying that the delegate failed to meet his obligation under s. 13 of the Act. As I see it, his error was one of acting upon impermissible reasons and then reaching unreasonable conclusions.”
It is to be observed that the applicant in Chan had challenged the decision of the Minister’s delegate under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The decision-maker’s unreasonableness in the administrative law sense was thus a ground for review. However, the Court’s jurisdiction under that Act was removed by s 485 of the Act, which was inserted by the Migration Reform Act 1992 (Cth). A finding that the Tribunal acted upon impermissible reasons or reached unreasonable conclusions can no longer avail an applicant in this Court, who is constrained by the provisions of s 476. Accordingly this submission, on its face, cannot succeed.
I have again sought to discern an alternative method of stating the applicant’s submission in this regard but have been unable to do so. The Tribunal accepted that the pattern of incidents described by the applicant amounted to persecution for a Convention reason. However, it went on to comment that there was no evidence that higher authorities in Sri Lanka had condoned the incidents or would ignore any complaints. It found, as a matter of fact, that the incidents originated with members of a particular army unit in an area outside Colombo and was not part of any policy directed or condoned by the national authorities. The Tribunal was not satisfied that the applicant was at risk from the Sri Lankan authorities, as distinct from a particular group of army personnel which was acting independently in a particular place. Adopting this reasoning, the Tribunal made the following finding of fact:
“The Tribunal is satisfied that it is reasonably open to the Applicant to live and practice (sic) in Colombo, where the evidence indicates he may undertake human rights work without encountering official or unofficial harassment or threats.”
It followed inevitably from this factual finding that the applicant was not a person to whom Australia owes protection obligations and that his application to the Tribunal must fail. The finding itself, as I have already commented, is not necessarily one which I would have reached. But that is not to the point. It was reached without any reviewable error on the part of the Tribunal.
It follows from all I have said that no ground for review has been made out. Accordingly, the application must be dismissed. Before making that order, however, I should refer to something that occurred after the completion of the hearing in this matter, and before the delivery of judgment. On 5 October 1999, Mr Asuzu telephoned my Associate, and requested that I receive further evidential material on behalf of the applicant upon the basis that the material had not come to the applicant’s notice until after the hearing. At my direction, my Associate suggested that Mr Asuzu furnish me with a copy of the material in question. My intention was that, if the material had any potential relevance to the outcome of the proceedings, I would reconvene the hearing and seek submissions from both parties as to the material’s admissibility. In the event, the material consisted of a letter dated 7 May 1999 from the Refugee Review Tribunal to the State Director of the Department of Immigration and Multicultural Affairs. It enclosed a copy of the Tribunal’s decision in this matter, and added:
“The Tribunal has no authority to consider humanitarian claims. This case may raise such claims.”
It is clear that this letter can have no effect upon the outcome of these proceedings. For present purposes it is entirely irrelevant. Accordingly, I have not sought to reconvene the hearing. Nor have I taken any account of the contents of the letter.
The application is dismissed with costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews .
Associate:
Dated: 7 October 1999
Counsel for the Applicant:
Mr Ignatius Asuzu
Solicitor for the Applicant:
Counsel for the Respondent:
Mr Stephen Lloyd
Solicitor for the Respondent:
Ms Angela Nanson
Date of Hearing:
23 September 1999
Date of Judgment:
7 October 1999
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3
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