Durairajasingham v Minister for Immigration and Multicultural Affairs
[1997] FCA 1211
•11 NOVEMBER 1997
FEDERAL COURT OF AUSTRALIA
IMMIGRATION - Appeal from decision of Refugee Review Tribunal affirming decision of Minister not to grant refugee status - whether Tribunal decision induced or affected by actual bias - whether Tribunal decision based on “no evidence” - whether failure of Tribunal to give proper reasons - whether error of law in Tribunal’s interpretation of “well founded fear”.
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(b), 5(3)(b)
Judiciary Act 1903 (Cth) s 44
Migration Act 1958 (Cth) ss 476(1)(a), 476(1)(e), 476(1)(f), 476(1)(g), 476(4)(b), 481, 485(3)
Migration Reform Act 1992 (Cth)
Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320, refd
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, appl
Australian Workers’ Union v Bowen[No 2] (1948) 77 CLR 601, appl
British Launderers’ Research Association v Borough of Hendon Rating Authority [1949] 1 KB 462, refd
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, refd
Cooper v Stubbs [1925] 2 KB 753, refd
Craig v State of South Australia (1995) 184 CLR 163, refd
Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, refd
In re Judiciary and Navigation Acts (1921) 29 CLR 257, refd
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, appl
Mahon v Air New Zealand [1984] AC 808, refd
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, appl
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41, refd
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, appl
Reg v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456, refd
Reg v Home Secretary; Ex parte Sivakumaram [1988] AC 958, cons
Singh v Minister for Immigration and Ethnic Affairs (unreported, 18 October 1996, Lockhart J), appl
Szelagowicz v Stocker (1994) 35 ALD 16, appl
Wannakuwattewa v Minister for Immigration and Ethnic Affairs (unreported, 24 June 1996, North J), refd
KUMARKULASINGHAM DURAIRAJASINGHAM v
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS & ORS
NG 993 of 1996
DAVIES J
SYDNEY
11 NOVEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 993 of 1996
BETWEEN:
KUMARKULASINGHAM DURAIRAJASINGHAM
APPLICANT
AND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
FIRST RESPONDENTROSLYN SMIDT SITTING AS THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTSHUNMUGAM NGANASAMANTHAM IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENTCORAM:
DAVIES J
DATE OF ORDER:
11 NOVEMBER 1997
WHERE MADE:
SYDNEY
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application, insofar as it has been remitted to the Federal Court of Australia, be dismissed with costs.
The matter otherwise be returned to the High Court of Australia.
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
NG 993 of 1996
BETWEEN:
KUMARKULASINGHAM DURAIRAJASINGHAM
APPLICANTAND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
FIRST RESPONDENTROSLYN SMIDT SITTING AS THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTSHUNMUGAM NGANASAMANTHAM
IN HIS CAPACITY AS PRINCIPAL MEMBER
OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT
CORAM:
DAVIES J
DATE:
11 NOVEMBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This proceeding was commenced in the High Court of Australia, presumably to avoid the restrictions on the grounds of judicial review which were introduced into the Migration Act 1958 (Cth) ("the Act") by the Migration Reform Act 1992 (Cth).
On 25 November 1996, Gaudron J of the High Court of Australia remitted a part of the matter to this Court by the following order:
“There be remitted to the Federal Court of Australia New South Wales District Registry part of the matter pending in this Court namely:-
the applications for orders nisi for the writs of mandamus directed to the first respondent and a writ of prohibition directed to the second respondent, as are based upon grounds 2, 6, 7, 8, 9, 10, 11 and 12 of exhibit ME-10 to the affidavit of Maritsa Eftimiou sworn 17 May 1996, to the extent to which the Federal Court has or would have jurisdiction therein pursuant to ss. 475 and 476 of the Migration Act (Cth) 1958.”
The grounds of review which were the subject of the referral read:
“2.The decision involved a denial of natural justice in that the second respondent was actually biased by reason of having prejudged the prosecutor's application.
...
6.The second respondent erred in law by applying a higher standard of proof than that which is required to establish that the prosecutor had a well founded fear of persecution if returned to Colombo.
7.The second respondent erred in law when applying the law as to what constitutes a well founded fear that the prosecutor would be persecuted if returned to Colombo, by effectively finding that most Tamils in Colombo do not face a well founded fear of persecution, and that accordingly the prosecutor would not face a well founded fear; this conclusion not being reasonably open on the evidence.
8.There was no evidence before the second respondent from which a finding could properly be made that it was reasonable for the prosecutor to relocate to Colombo.
9.The second respondent erred in law when interpreting and applying the law on the issue of whether it was reasonable for the prosecutor to relocate to Colombo.
10.The second respondent failed to give proper reasons for the basis of the finding that it was reasonable for the prosecutor to relocate to Colombo.
11.The second respondent erred in law by failing to consider the prosecutor’s case properly on its merits.
12.The second respondent breached the statutory duty imposed upon the Refugee Review Tribunal by section 420 of the Migration Act 1958 by failing to provide a fair and just mechanism of review and by failing to act according to substantial justice and the merits of the prosecutor’s case.”
These grounds have to be considered in the light of the grounds available under s 476 of the Act which provides:
“ (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
...
(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f)that the decision was induced or affected by fraud or by actual bias;
(g)that there was no evidence or other material to justify the making of the decision.
...
(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”
The decision of the Refugee Review Tribunal (“the Tribunal”) was given on 9 April 1996.
Facts
The Tribunal set out these facts, inter alia:
“In 1972 Mr Durairajasingham joined the Tamil youth movement and was President of the organisation in 1974 and 1975. In 1974 he was involved in the organisation of an international Tamil conference. On the last day of the conference the police attacked a public meeting and several people were killed and others injured. While assisting wounded people following this attack, Mr Durairajasingham was himself beaten by police and had to be hospitalised for two weeks.
The Mayor of Jaffna, Alfred Duraiappah, was blamed for the incident at the conference and was murdered in 1975. A colleague of Mr Durairajasingham’s named Inpam was the main suspect for the murder and the police came to Mr Durairajasingham’s house to question him about the matter. He was not at home at the time, but three days later went to the police station with his lawyer. He was remanded for a week and tortured by police who questioned him about his friend. Mr Durairajasingham knew nothing about his colleague’s activities. He was released after a week.
In 1976, the Tamil United Liberation Front (TULF) was formed to unite all Tamil parties and fight the government to liberate Tamils. Mr Durairajasingham was an active member of this organisation. He organised meetings, distributed anti-government literature and collected money on behalf of the group.
In 1979 the Prevention of Terrorism Act was passed and a new commander was posted to the northern province. His [sic] was a very violent man and during this period a number of people suspected of anti-government activities were detained and some were later killed, including Impam and his brother in law and the secretary of the TULF youth movement.
In 1980 the Annaikottai Police Station, which is located about one kilometre from Mr Durairajasingham’s home was attacked. Two of the people involved in this attack hid in Mr Durairajasingham’s house for two days. Following this the police came to search for him, but he went to stay with his sister in Colombo. He remained in Colombo working and living with his sister until the anti-Tamil riots of June 1983, after which he returned to Jaffna.
After returning to Jaffna, Mr Durairajasingham joined PLOTE, which he believed was a non-violent organisation. Some friends who had joined the LTTE tried to force him to join that organisation and go to India for military training. As a result of this pressure, he paid an agent to arrange for him to go to Germany. He left Sri Lanka on 17 December 1983 and was granted temporary residence in Germany.
...
In early 1993 Mr Durairajasingham’s parents advised him to get married as he was nearing 40. They also advised him that most of the youth he had known had been killed or had left the country. His parents arranged his marriage and he agreed to return to live in Colombo with his wife as his German visa did not allow him to bring his wife to Germany. At the hearing it was established that Mr Durairajasingham was entitled to sponsor his wife to join him in Germany provided he had a job and accommodation for her. Mr Durairajasingham had a good job, but it was difficult to find suitable accommodation.
Mr Durairajasingham returned to Sri Lanka on 14 October 1993 and was married on 18 October 1993. In his initial application, he said that two weeks after his wedding he was approached at the market by a young man who recognised him because of his fame as a cricketer in Jaffna in the early 1970s. The man asked him if his brother was a lecturer at Jaffna University and Mr Durairajasingham agreed that he was. When asked the approximate age of the young man during a second Department interview on 5 April 1995, Mr Durairajasingham stated that he was in his early 20s. The interviewing officer pointed out that the young man would therefore have been only about 5 years old when Mr Durairajasingham had been well known for his cricketing. Mr Durairajasingham said that perhaps the young man was older than he thought.
In his initial application, Mr Durairajasingham said that, shortly after the meeting at the market, the same man came to his house and took him to meet two other men. One of these men was an old friend from PLOTE called Manikathasan. These men took Mr Durairajasingham to a hotel where a police escort took them to a room. Manikathasan told Mr Durairajasingham that some of their mutual friends had been killed by the LTTE and that he and others were now working to destroy the LTTE by supporting the government. Manikathasan said that he was aware that Mr Durairajasingham’s brother, who was a lecturer at the Jaffna University was an active member of the LTTE and that one of his (Mr Durairajasingham’s) friends held a senior position in the LTTE broadcasting service. Manikathasan then asked Mr Durairajasingham to go to Jaffna as a spy for PLOTE. Mr Durairajasingham explained that he had recently married and did not want to undertake this task, but Manikathasan continued to insist that he should go. Mr Durairajasingham told his old friend that he would get back to him in two days and was taken back to his home. He later told his wife about the incident and with her agreement returned to Germany on 10 November 1993.
...
Mr Durairajasingham said that he would have been unable to obtain a visa for his wife and step-daughter to join him in Germany as he did not have suitable accommodation. His wife in Sri Lanka was becoming increasingly concerned for the safety of her daughter, so he decided to return to Sri Lanka on 28 April 1994 and arranged visas to visit his sister in Australia. He remained in Sri Lanka for six weeks on this occasion, leaving again on 20 June 1994.”
Actual Bias
It was submitted on behalf of the applicant that the decision of the Tribunal was induced or affected by actual bias, thus allowing for review under the ground set out in 476(1)(f) of the Act.
In support of this contention, counsel for the applicant relied upon the Tribunal’s reasons for decision, which were said to contain evidence of bias, and also upon the affidavit of the applicant’s solicitor which said, inter alia:
“10.On 21 March I represented the prosecutor at a hearing of his case before the second respondent. I was present throughout the proceedings. Exhibited hereto and marked “ME11” is a copy of the 49 pages of transcript of this hearing. During the hearing the second respondent told the prosecutor and his wife that the Tribunal had difficulty accepting a number of aspects of the prosecutor’s claim and questioned the prosecutor and his wife about these matters. (See pages 17, 18, 19, 32 to 39 and 41 of exhibit “ME11”. The matters about which the second respondent questioned the prosecutor and the substance of his answers are also set out in the second respondent’s reasons for decision (“ME1”) at pages 8.6 to 9.5.
11.The second respondent also told the prosecutor during the course of his evidence that the Tribunal was aware that some people were detained in Colombo. The second respondent then stated:
“However it seems to me that there’s no reason to suppose that there is more than a remote chance of that happening to you because there’s no indication that you’ve been involved in any political group that the government doesn’t approve of or that you had problems when you’ve been there in the relatively recent past.” (Page 41.7 of exhibit “ME11”).
This was said before the prosecutor’s evidence had been completed and before I had had the opportunity to make oral submissions on his behalf about matters raised during the hearing. The second respondent also told the prosecutor during the course of his evidence that his problems with the authorities in the 1970’s would not make any difference when (my emphasis added) he goes back to Sri Lanka. (See page 25, question 123 of exhibit “ME11”). A large part of the hearing was devoted to the second respondent putting to the prosecutor and his wife that the Tribunal had difficulty accepting his claims. (See pages 17 to 19, 32 to 39 and 41 exhibit “ME11”).”
I take the words "actual bias" in s 476(1)(f) to refer to that form of bias which the law would consider to be sufficient to set aside a decision of a domestic forum acting under rules resting upon a consensual basis. The words were so read by Lockhart J in Sarbjit Singh v Minister for Immigration & Ethnic Affairs (unreported, 18 October 1996) and by North J in Wannakuwattewa v Minister for Immigration & Ethnic Affairs (unreported, 24 June 1996). An example of actual bias may be seen in Australian Workers' Union v Bowen [No 2] (1948) 77 CLR 601 where, at 628, Dixon J said:
"But the tribunal is bound to act honestly, that is to say it must have an honest opinion that what the member before it did amounted to misconduct and its decision must be given in the interests, real or supposed, of the body it represents and not for an ulterior or extraneous motive (cf. Maclean v. The Workers' Union (1929) 1 Ch.D. 602, at pp.620-627; Stuart v. Haughey Parochial Church Council (1935) Ch.452, at p.462; (1936) Ch.32; Lamberton & Thorpe (1929) 141 L.T. 638.)"
At 631, Dixon J went on to say:-
"It is not in accordance with the priniciples of natural justice to have present as a member of the tribunal a person who has promoted the charge and supports it as the prosecutor or one who is invincibly biassed against the accused as a result of his participation in the controversy, and this was the case with Dougherty. If a person disqualified by such considerations sits with the tribunal and takes part in the decision, that is enough to vitiate it: Dickason v Edwards (1910) 10 C.L.R. 243."
In the present case, there is no evidence of any preexisting matter, such as an interest in the outcome, which would have led to bias on the part of that member constituting the Tribunal. The allegation is that the Tribunal demonstrated bias during the course of the hearing and in its reasons for decision. To consider this issue, it is useful to consider what the law considers to be an appearance of bias in the conduct of proceedings; but it must be kept in mind that the test is not whether a fair-minded person might reasonably apprehend or suspect that the decision-maker had prejudged the case but whether the decision was induced or affected by actual bias.
In dealing with the issue of apprehended bias, Gaudron & McHugh JJ said in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100:-
"A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry: Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. (1953) 88 C.L.R. 100, at p.116; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 C.L.R. 546, at pp. 554, 555; Re Shaw; Ex parte Shaw (1980) 55 A.L.J.R. 12, at pp.14, 15; 32 A.L.R. 47, at pp.50-51, 53. When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. Thus, in Ex parte Angliss Group, the mere fact that the statement of reasons for a previous decision gave rise to the conclusion that members of the Conciliation and Arbitration Commission tended to favour the adoption of a principle of equal pay for both sexes as soon as it was economically and industrially practicable to do so was not a ground for disqualifying them from sitting on an application for an equalisation of rates of pay for male and female employees brought in reliance upon their reasons. This Court rejected the notion that a fair and unprejudiced mind was `necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it' (1969) 122 C.L.R., at p.554. In Re Shaw, the transcript showed that a judge of the Family Court of Australia had expressed opinions adverse to the case for the husband before his counsel had opened his case. Nevertheless, Gibbs A.C.J., with whose judgment Stephen J. and Wilson J. agreed, said that the evidence did not justify `a conclusion that the views which the learned judge expressed, although strong, were other than provisional, or that it could reasonably be suspected that at the end of the case she would not decide with a fair and unprejudiced mind' (1980) 55 A.L.J.R., at p.14; 32 A.L.R., at p.51." (emphasis added)
In Sarbjit Singh, Lockhart J, after referring to the passage I have just cited, said in the context of s 476(1)(f) of the Act:-
"Even where a decision-maker is shown to have expressed or otherwise formed strong views about an issue involved in an inquiry prior to the giving of evidence, actual bias will be established only where the evidence shows that these views were incapable of being altered because the decision-maker had unfairly and irrevocably prejudged the case."
I cannot detect anything in the Tribunal’s reasons or anything in the transcript of the hearing before the Tribunal which suggests that the member constituting the Tribunal did not approach the matter with an entirely open mind.
An example of the matters which the Tribunal put to the applicant during the course of the hearing is as follows:
“Q169O.K. The other thing that I find it very difficult to understand is you say that your brother was a leading member of the LTTE and you’ve also told me that PLOT knew that he was a member of the LTTE. And you’ve also told me that PLOT was working with the government to destroy the LTTE. And yet your brother was able to travel backwards and forwards from Jaffna to Kandy where he studied, was able to travel to Colombo to visit you for a period of over 5 years and he had no problems with the authorities.
...
A (INTPRTR) He has the university identity card.
...
A (INTPRTR) He used to use that identity card to travel down to Colombo. Once he goes to Jaffna he doesn’t need anything.
Q171No matter how many identity cards he had or what kind of identity card he had, I find it very difficult to believe that he wouldn’t have been arrested in Colombo or in Kandy by the authorities if he was a leading member of the LTTE.
A (INTPRTR) He said that he has not taken the gun and he was [not] fighting."
Another example is:
Q205Now, what I’m saying is that the reports I’ve read from the United Nations High Commissioner for Refugees, from Amnesty International, from publications like the Sri Lanka information bulletin - they all say that most people who are detained, the large majority of people who are detained, are released after a brief period. Now, I certainly know that some people aren’t released after a brief period and I certainly know that some people are mistreated in detention.
A (INTPRTR) He says that compared to your information and information that he gets from the radio news and all that is vast - completely different.
...
Q208O.K. What I was just explaining is that I’m aware that some people are detained for longer periods and that some people are mistreated in detention. I know that happens too. However, it seems to me that there’s no reason to suppose that there’s more than a remote chance of that happening to you because there’s no indication that you’ve been involved in any political group that the government doesn’t approve of or that you’ve had problems when you’ve been there in the relatively recent past.
...
A (INTRPTR) He say, he say he’s finding it difficult to accept it because definitely he will have problems.”
These and like passages do not indicate that the Tribunal was dealing with the matter otherwise than as it should have done. Rather they indicate to the contrary. The Tribunal was dealing with the crux of the matter and very properly put to the applicant the problems that were seen with the probability of the story presented by the applicant and the substance of the position in Sri Lanka as the Tribunal understood it to be from a reading of a report to the United Nations High Commissioner for Refugees, from Amnesty International and from other like sources.
In dealing with the matter in that way, the Tribunal conducted the review precisely as s 420 of the Act prescribes. The Tribunal was providing a fair hearing to the applicant by making it clear to the applicant what were factors adverse to the applicant’s case with which the applicant should deal. By seeking evidence on the crucial points, the Tribunal was ensuring that the decision would consider the substantial merits of the case.
The claims which are made concerning bias arise from the nature of the semi-inquisitorial procedure which the Refugee Review Tribunal adopts and which I believe was contemplated by parliament when it established that body. The Act makes no provision for there to be a respondent to proceedings before the Refugee Review Tribunal. The only party is the applicant who seeks review of the RRT-reviewable decision. It follows that it is a duty of a Refugee Review Tribunal not only to listen to the evidence which an applicant may wish to give but also to test the applicant’s evidence and to direct the applicant’s attention to points which are adverse to the applicant’s case and on which the applicant might wish to comment.
Members of the Refugee Review Tribunal perform their function by engaging in the questioning of applicants who come before them. It is not unknown for applicants to become upset when, in these emotionally charged proceedings, the member constituting the Tribunal appears to be arguing against them. But that is an incidental effect of the semi-inquisitorial system which the Act has established.
No Evidence
Counsel for the applicant submitted that the decision was flawed on the ground set out in s 476(1)(g) and (4)(b).
The substance of the Tribunal’s reasoning was as follows:
“I accept that Mr Durairajasingham may have been involved in activities protesting the government’s policies towards Tamils in early 1970s. I also accept that he was involved with the TULF for a period in the 1970s and belonged to PLOTE for about six months in 1983. However, I do not believe that members of PLOTE tried to recruit him to go to Jaffna and obtain information on the LTTE for them. In the first place, I find the claim that he was recognised in the market by a young man who had not seen him for some 25 years, then asked by an organisation which he had only belonged to for six months ten years earlier to go to Jaffna, where he had not lived for ten years, to spy on the LTTE because his brother was a member, to be utterly implausible, particularly as his brother was only in Jaffna occasionally during the period in question. Second and more importantly, I do not accept that his brother was a member of or an adviser to the LTTE. As the information set out below indicates, LTTE members were detained whenever and wherever they were found by the Sri Lankan security forces for most of the period during which Mr Durairajasingham’s brother was studying in Kandy. If he had been a member or important associate of the LTTE during that period and his membership had been known to PLOTE, which as Mr Durairajasingham himself pointed out, was working with the government to crush the LTTE, he would, I am sure, have been detained by the security forces.
As I do not accept that Mr Durairajasingham was approached by PLOTE and asked to spy for them in Jaffna, it follows that I do not accept that his wife and step-daughter were threatened by members of PLOTE seeking him after he left Sri Lanka.
...
From the evidence cited above it is clear that most Tamils in Colombo will be required to identify themselves and, if not long term residents in the city, explain their presence. Those who are unable to identify themselves or cause suspicion for some other reason may be detained for a brief period and some of those detained are held for little or no reason other than the fact that they are Tamils; those most likely to be found in this latter group are young men from Jaffna. However, even during the 1993 crackdown and the security tightening following the bombing of Colombo, the evidence does suggest that Tamils in Colombo faced more than a remote chance of serious harm amounting to persecution unless they were seriously suspected of involvement in the LTTE. Mr Durairajasingham has never been involved with the LTTE nor is there any suggestion that he was suspected of involvement with them in the past. He had no problems with the authorities on his last two visits to Colombo, one of which occurred in the latter half of 1993 when there were particularly intense security activities in the capital and I do not consider he faces a real chance of being detained for a prolonged period or ill-treated by members of the security forces in Colombo.
I have also considered whether Mr Durairajasingham would face discrimination or violence amounting to persecution from members of the Singhalese community in Colombo. ... However, the evidence does not suggest that these problems are so serious that it could be said that Tamils face discrimination amounting to persecution as a result of their ethnicity in Colombo. ... In these circumstances, I do not consider Mr Durairajasingham faces a real chance of discrimination or violence amounting to persecution in Colombo.
After considering Mr Durairajasingham claims in their entirety, I conclude that he faces no more than a remote chance of persecution for a Convention reason in Colombo in the reasonably foreseeable future.
...
There is a large Tamil population in Colombo. Mr Durairajasingham has previously lived and worked in Colombo. Members of Mr Durairajasingham’s family have lived in Colombo and other parts of Sri Lanka at different times over a period of many years and his sister is a long term resident of the city. Mr Durairajasingham has not lived in Jaffna for many years and his ability to live and work in Germany for some ten years demonstrates his ability to adapt to life in places where the language and culture differ from his own. Perhaps most importantly of all, his wife has lived in Colombo for most of her life and members of her extended family still live there. In these circumstances, I do not believe it would be unreasonable to expect Mr Durairajasingham to relocate to Colombo to avoid the possibility of persecution or the violence associated with the war in the north.”
Counsel submitted that the Tribunal drew an inference that the applicant was in the same position as the majority of Tamils in Colombo, which finding was not reasonably open on the evidence as the applicant would be returning to Colombo from overseas with no identity papers, no accommodation, an inability to speak Singhalese and with a background as a former politically active Tamil from the Jaffna area who had been previously arrested and detained.
This submission of “no evidence” misunderstands the principles of law which are applicable under s 476 of the Act, under the equivalent provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and under the common law.
The position at common law is as stated by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356-357. His Honour reviewed a number of cases which had suggested that findings and inferences are reviewable for error of law on the ground that they could not reasonably be made on the evidence or reasonably drawn from the primary facts. His Honour referred to Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 36; Cooper v Stubbs [1925] 2 KB 753 at 772; British Launderers’ Research Association v Borough of Hendon Rating Authority [1949] 1 KB 462 at 471-472; Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 at 1326; Mahon v Air New Zealand [1984] AC 808 at 821; Reg v Deputy Industrial Injuries Commissioner: Ex parte Moore [1965] 1 QB 456 at 488 and Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 67-68. Mason CJ said that:
“The approach adopted in these cases has not so far been accepted by this Court”.
Of the equivalent sections ss 5(1)(b) and 5(3)(b) of the Administrative Decisions (Judicial Review) Act, Davies and Einfeld JJ in Szelagowicz v Stocker (1994) 35 ALD 16 at 22, applying a similar approach to that of Mason CJ, said that:
"They provide a ground of review where there was before the decision-maker no evidence of a fact, the decision was based on the existence of that fact and the fact did not exist. On this ground, a decision may be challenged, but only if evidence is called which positively establishes that the fact did not exist. They do not permit evidence to be adduced to contradict either evidence or material which was before the decision-maker or an inference which was available to be drawn from that evidence or material.
The ambit of the words `based on the existence of the fact' were elucidated by Black CJ, with whom Spender and Gummow JJ agreed in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-4; 27 ALD 181. We need not repeat the discussion.
Such a reading of the ADJR Act accords with the general tenor of the remarks of Mason CJ in Bond, which at CLR 358 emphasise that `courts exercising judicial review should leave the finding of facts to the public body appointed for that purpose
by the legislature' and, at 359, that `the AD(JR) Act does not permit general review of findings of fact'. At 359, his Honour referred to remarks of Pincus J in Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414; 69 ALR 465. Pincus J read s 5(1)(h) and (3) narrowly saying, at FCR 429; ALR 480:
A narrower reading which makes more practical sense, is that para (b) refers only to instances in which express findings made are plainly incorrect."
The matter which the Tribunal had to determine was a matter on which there was evidence in the material which the Tribunal was entitled to take into account. From the evidence and material before it, the Tribunal had to form a view as to the likelihood of the persecution if the applicant were returned to Sri Lanka. The Tribunal’s decision was thus not based on “no evidence” and it has not been established that the Tribunal’s findings of fact were wrong.
Another finding challenged was that it was reasonable for the applicant to relocate to Colombo from Jaffna. However, once again, that was not a matter in respect of which there was “no evidence”. The Tribunal dealt at length with the situation existing in Colombo and with the connections which the applicant had with that city. The applicant had both lived and worked in Colombo and, when his parents had arranged his marriage, he had agreed to return to Colombo to marry and to live there with his wife.
Failure to Give Proper Reasons
Counsel for the applicant submitted that there was a breach of the procedures required by the Act to be observed in that the Tribunal had failed to set out its reasons and its findings on material questions of fact, referring to the evidence or other material on which the findings of fact were based.
However, the Tribunal's reasons for decision, some passages from which I have set out above, sufficiently indicate the Tribunal's reasoning process and its findings of fact, and adequately refer to the material on which the findings were based. The Tribunal’s reasons are some 19 pages in length, they are carefully drafted and they deal with the substance of the matter which was before the Tribunal.
One matter which was emphasised in the evidence of the applicant given during the hearing before the Tribunal and which was also prominent in the matters raised in the affidavit by the applicant’s solicitor filed in the High Court, was that, while the applicant was in Colombo in 1993, he had a German visa which he would have been able to produce if he had then encountered any problems. It was said that the position would be different if he were now returned to Sri Lanka.
In my opinion, the Tribunal dealt in sufficient detail with the problems which Tamils encounter in Colombo if they do not have proof of identification or registration. For example the Tribunal set out the following information from The Sri Lanka Information Monitor Situation Report of February 1996:
“... Another problem that has been raised by Tamil residents in Colombo is that there is no clear indication of what documents one may be required to produce to furnish proof of identity and residence; in addition the procedures for registration at Police Stations are not streamlined; officials are not always available to attend to the registration, registration forms are not available and so on. This means that persons may be taken into custody for not having been registered, in the interim period between their first going to a Police Station to seek registration and actually being registered.”
The substance of the Tribunal’s view was that the problems which were so encountered did not amount to persecution for the purposes of the Refugee Convention. The Tribunal did not state expressly but presumably the Tribunal had it in mind that, on his return to Colombo, the applicant would have an opportunity to obtain letters of identity or registration.
The Tribunal dealt with all the factors which affected the applicant's personal position and took them into account. An allegation put by counsel for the applicant was that the Tribunal drew an inference that the applicant was in the same position as the majority of Tamils in Colombo. The position is rather that the Tribunal dealt with the personal circumstances of the applicant but necessarily, in doing so, took into account what was known generally of the treatment of Tamils in Colombo.
Error of Law
Counsel for the applicant submitted that, within s 476(1)(e) of the Act, the decision of the Tribunal involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal.
Counsel submitted that, despite the Tribunal’s findings on the acknowledged risks of detention and torture of Tamils in Colombo, and its findings with respect to the applicant’s previous anti-government activities, the Tribunal found that the applicant faced no more than a remote chance of persecution in Colombo. It was said that the Tribunal’s finding in this regard could only have been reached if the Tribunal had applied a standard beyond that required by the law to establish a “well founded fear”.
The Tribunal set out the law on a “well founded fear” as follows:
“An applicant has a well founded fear if they are afraid to return to their country of nationality and there is a real chance that they will be persecuted on return there. However, they do not have a well founded fear if there is only a remote or insubstantial chance that they will be persecuted on return to their country of nationality. (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379: Mason CJ p 389, Dawson J p396 & 398, Toohey J p407, McHugh p429).
When deciding if an applicant has a well founded fear, the Tribunal must take into account what may happen to him or her within the reasonably foreseeable future. (Keely J, Mok Gek Bouy v the Minister for Immigration Local Government and Ethnic Affairs (1993) 47 FCR 1, p66).
The Tribunal must also consider whether the applicant faces a real chance of persecution throughout their country of nationality. Some applicants may face persecution only if they return to a particular area within their country of nationality. Applicants who would be safe from persecution if they stayed away from this area will not be eligible for a protection visa, unless it is unreasonable to expect them to try and live in another part of the country (Davies J., Harjit Singh Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs, unreported, 8 December 1993, p4).”
It has not been submitted that there was any error in the Tribunal’s statement of the principles to be applied. Since the Tribunal’s decision, the High Court of Australia has ruled in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 that the term “real chance” which had been used in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 had been misunderstood. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said at 577 that:
"Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. ... In this and other cases, the tribunal and the Federal Court have used the term “real chance” not as epexegetic of “well-founded”, but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.”
There is nothing in these remarks which suggest that the Tribunal adopted too stringent a test to the words “well-founded fear”.
The decision of the Tribunal did not turn on the issue whether the applicant had a well-founded fear of returning to Sri Lanka. Many persons would have such a fear. In recent times, the Australian cricket team has declined to play in Colombo. Tamils in particular are at risk of encountering problems in Sri Lanka. Conditions particularly in the north of the country, but also in other parts, have been horrific. The Tribunal accepted that the applicant feared to return to Sri Lanka. The issue with which the Tribunal dealt at length was whether the applicant faced a real chance of persecution should he be returned to Sri Lanka, the application having been brought on the basis of a well-founded fear of persecution for reason of race or membership of a particular social group.
The Tribunal concluded that the applicant would face a real chance of persecution if he were returned to Jaffna in the north of the country but that he did not face a significant prospect of persecution if he went to Colombo. The Tribunal used the word “relocate”, but that is perhaps an inappropriate term as the applicant himself had left Jaffna in 1983.
The Tribunal held on the material before it that, although Tamils in Colombo suffer some degree of discrimination, inconvenience and difficulty when living in Colombo, the general problems which they face do not amount to persecution, as that term is used in the definition of “Refugee” in the Refugee Convention. The Tribunal expressed its view of “persecution” in these terms:
“Persecution is not precisely defined in the Convention or in Australian law. However, it is generally agreed that it means serious harm or discrimination or abuses of fundamental human rights inflicted on a group or an individual as part of a systematic course of conduct by the government or other groups or individuals in their country of nationality. Loss of life, prolonged detention and torture are clearly forms of persecution. Serious forms of social, economic or political discrimination may also be considered persecution under the Convention. For example, serious restrictions on the right to work, to earn a livelihood, to gain a basic education, to practice a religion or to participate equally in the political life of a national may amount to persecution, depending on the circumstances. (Chan’s case Mason CJ p388, McHugh J p430 and James C Hathaway, The Law of Refugee Status, Butterworths Canada LTD, pp103-105).
Minor forms of discrimination or harassment would not generally be considered serious enough to amount to persecution. However, if an applicant faces a number of relatively minor forms of discrimination and harrassment and the combined effect of these problems is of a serious nature, then the harm involved may amount to persecution (United Nations Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1988 paragraph 53).
Not all acts of harm are acts of persecution. Persecution implies an element of attitude or motivation on the part of those who persecute for the infliction of harm on others. (Burchett J pp 6-8 Kuldip Ram v The Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal, unreported, 27 June 1995).
Harm suffered as a result of random and incidental violence during civil war or communal unrest is not generally considered to be persecution. However, if an individual or a group is targeted for systematic attack during civil war or their treatment during communal unrest is part of a pattern of serious harassment or discrimination directed against them, they may be considered victims of persecution. (Wilcox CJ, Periannan Murugasu v Minister for Immigration and Ethnic Affairs, Federal Court, 28 July 1987, p8 & 13 see also McHugh J in Chan’s case p430 and Hathaway, p188).”
It was not submitted by Counsel that there was any error in this description by the Tribunal of the concept of persecution.
Issues similar to that which was before the Tribunal in the present case have always been difficult ones for decision-makers. Sri Lanka has been a country where great violence and
terror has occurred. Most of the problems have arisen however from the civil war which has been fought for many years with often more than two groups involved. Undoubtedly, there has from time to time been persecution; but the task of differentiating between a refugee from civil disorder and a refugee from persecution has been a difficult one.
There have been many cases coming before this Court where the claim of the likelihood of persecution in Sri Lanka has not been upheld. It is perhaps worth noting that that is also the case in the United Kingdom where, in Reg v Home Secretary; Ex parte Sivakumaram [1988] AC 958, Lord Keith of Kinkel said at 995-6:
“As the troubles have occurred principally in areas inhabited by Tamils, these are the people who have suffered most. The Secretary of State has in his decision letters expressed the view that army activities aimed at discovering and dealing with Tamil extremists do not constitute evidence of persecution of Tamils as such. This was not disputed by counsel for any of the applicants. ... there is already to be gathered from what the Secretary of State has said that in his judgment there existed no real risk of persecution for a Convention reason."
I mention this not with a view to saying that the Tribunal’s decision was correct, for it is not the function of this Court to enter into this matter, but simply to say that I do not start a consideration of this matter with the assumption, which seems to underlie the submissions put for the applicant, that the decision was wrong or out of line with the general run of tribunal decisions with respect to Sri Lanka.
The Tribunal did not ignore the particular circumstances likely to affect the applicant personally. However, the Tribunal rejected the evidence given by the applicant that, on his return to Sri Lanka in 1995, he had been taken with a police escort to a room where he had been told that his brother was an active member of the Liberation Tigers of Tamil Ealem ("LTTE") and that he had been asked to go to Jaffna as a spy for the People's Liberation Organisation of Tamil Ealem ("PLOTE") to report on the affairs of the LTTE. The Tribunal rejected this evidence in part because the brother had for some years lived at Kandy rather than Jaffna and had apparently travelled between Kandy and Colombo without encountering any problems. On these points, the Tribunal was the decision-maker of fact and the decision was for it.
As the Tribunal did not accept these important elements of the applicant’s version of events, there is no basis for finding an error in the Tribunal’s application of the law to the facts as found by it.
It was submitted that there was an error of law in that the Tribunal made findings about the risks faced by the Tamils in Colombo and concluded that the applicant was in the same position as most Tamils, whereas this inference was not open on the evidence. I think that this was fundamentally a “no evidence” submission and I have already dealt with that.
A further submission was made that the Tribunal did not apply a test of “reasonableness” when considering relocation as that test requires consideration of the factual realities facing the applicant with respect to relocation, including whether the applicant can generally obtain access to domestic protection and whether for him the reality of protection is meaningful. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, Black CJ said at 443:
“If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well-founded. I should add that this seems to me to be a better way of looking at the matter than to say, as the first and last sentences of par 91 of the Handbook suggest, that the fear of persecution need not extend to the whole territory of the refugee’s country of nationality if under all the circumstances it would not have been reasonable to expect a person to relocate.”
In my opinion, there was no error in the Tribunal’s approach to this matter. Indeed, I do not see relocation as a major issue in the case. It seems clear enough from the past history of events, that, if the applicant were to live anywhere in Sri Lanka, he would wish to live in Colombo. That is not merely because he himself has worked and lived there and has members of his family there but also because his wife lived in Colombo and it was arranged that, when he married her, they would live there together.
General
I have given attention to all the submissions put on behalf of the applicant and also to the relevant paragraphs of the affidavit of the applicant’s solicitor which was filed in the High Court of Australia. It appears to me that, in general, those representing the applicant have sought to reagitate the merits of the case and to put reasons why the Tribunal should have come to a different conclusion. Such an approach is wrong, as Mason CJ pointed in Bond, where his Honour said at 355-356:
“The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Australian Gas Light Co. v Valuer-General (1940) 40 SR (NSW) 126 at 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light; Hope v Bathurst City Council (1980) 144 CLR 1 at 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481, 483.
But it is said that “[t]here is no error of law simply in making a wrong finding of fact”: Waterford v The Commonwealth (1987) 163 CLR 54 at 77, per Brennan J. Similarly, Menzies J observed in Reg v District Court; Ex parte White (1966) 116 CLR 644 at 654:
“Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg. illogical) inference of fact would not disclose an error of law.”
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”
I see no error in the Tribunal’s approach to the case, insofar as the issues which are raised in this Court are concerned. The Tribunal was the decision maker of fact and it came to its decision on the evidence and the material before it.
I have found it unnecessary to consider submissions put by counsel for the Minister based upon Craig v State of South Australia (1995) 184 CLR 163 and the grounds upon which the remedy of certiorari may be available. Craig v State of South Australia dealt with a different issue: whether it was appropriate to grant the remedy in respect of an interlocutory order of an inferior court. The remittal order in the present case does not even mention certiorari. This present matter has been remitted to this Court pursuant to s 44 of the Judiciary Act 1903 (Cth) to deal with the issues insofar as this Court has jurisdiction under the Migration Act. Had I been satisfied that any ground under s 476 had been established, I would have considered it appropriate to grant the relief available under s 481 of the Act. That course would be consonant with s 485(3) of the Act, with s 44 of the Judiciary Act and with the meaning of the term "matter", which is not a "legal proceeding" but "the subject matter for determination in a legal proceeding": In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.
Order
For these reasons, the application, insofar as it has been remitted to this Court, will be dismissed with costs. The matter will otherwise be returned to the High Court of Australia.
I certify that this and the preceding twenty one (21) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies
Associate:
Date: 11 November 1997
Counsel for the Applicant: E.A. Wilkins Solicitor for the Applicant: Kessels & Associates Counsel for the Respondent: R.T. Beech-Jones Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 21 July 1997 Date of Judgment: 11 November 1997
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