Gunaleela, P.T. v Minister for Immigration & Ethnic Affairs

[1987] FCA 306

.. I

W’

IN THE FEDERAL COURT OF AUSTRALIA	1 1
NEW SOUTH WALES DISTRICT REGISTRY )
1

DIVISION GENERAL 1

Between: PREMANAERTEAN TaERESA GUNALEELA

AND OTEERS

Applicants

And: MINISTER M R IMMIGRATION AND

ETEiNIC AFFAIRS

Respondent

C O W :	Einfeld J.
-	DATE :	16 June 1987

PLACE: Sydney

This case concerns a judicial review of certain doclsions made -%y the

respondent In respect of applications by four Sri Lankans of Tarnil

origin to remain in Australia under one classificatlon or another. The

matter was part-heard on Wednesday, 27 May 1987, when affidavlts were read, documents were tendered and some short oral evidence was glven. At the conclusion of the hearing on Friday. 29 May 1987, I gave certaln directions concerning the future progress of the case which included that the Minister should provide to the applicants copies of all

decisions that had been made and were sought to be reviewed, that the

parties should file written submissions and that the matter should be continued on Thursday, 18 June 1987. On Wednesday, 10 June 1987, Mr. Gyles of Queens Counsel, on behalf of the respondent Minister, made an

- 2 -

application that I should disqualify myself from the further hearing of

the matter upon the basis of a letter written by me to the Minister In

my capacity as President of Buman Rights and Equal Opportunity Commission on 6 May 1987. That letter, which is marked for identification RVG 1, was written on behalf of four quite different Sri Lankans of T a i l ethnic origin who had been refused temporary entry

permits at Perth Airport on 25 March 1987. They had subsequently been

refused refugee status and had made application to this Court for a

review of that and perhaps other decisions. This matter has

subsequently been litigated and resolved by a judgment of Mr. Justice

French dated 5 June 1987. I have not read his Honour's judgment because I was notified that the Minister was making an application that

I disqualify myself and it seemed inappropriate that I should therefore

become knowledgeable of the facts and legal matters which are no doubt

related in that judgment.

The letter from the Buman Rights and Equal Opportunity Commission to the

Minister was written in anticipation of an adverse decision to the

applicants by Mr. Justice French and I am informed that his Honour's

decision was in fact adverse to their applications. The letter sought in substance the extension of the special policy in force within the

Department of Immigration and Ethnic Affairs for the management of

applications for Australian residency by Sri Lankan Tamils and the extension to the particular applicants of compassionate and humanitarian considerations. As far as I am aware, the only parallel between that case and the present case is that the applicants are Sri Lankan Tamils seeking permission to reside In Australia.

- 3 -

Mr. Gyles drew attention to two paragraphs of the letter which he says

bring this case within the principles laid down by the Eigh Court In Livesey v The NSW Bar Assoclation (1983) 151 CLR 287. In that case the

Eigh Court said at page 293:

"

circumstances the parties or the public might entertain a . _ _ a judge should not slt to hear a case if in all the

reasonable apprehension that he might not bring an impartial and

unprejudiced mind to the resolution of the question involved	in
it."

Their Eonours go on to say at page 300:

m ... a fair-minded observer might entertaln a reasonable

apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a questlon of fact which

constitutes a live and significant issue In the subsequent case

or about the credit of a witness whose evidence is of

significance on such a question of fact."

tk. Gyles argues that the Minister as one of the litigants in these

proceedings might reasonably perceive that I could not bring a dispassionate and unbiased mind to the determination of the issues in

this case by reason of the following two paragraphs from the letter:

"As you are no doubt aware, the civil strife and potential for human rights abuses of Tamils in Sri Lanka has increased dramatically in the weeks since your decision was first made. This leads me to suggest that the complainants would, in all likelihood, encounter severe racial discrimination and serious interferences with their human rights, if required to return to Sri Lanka at the present time. The direct link between human

rights abuses and the return of individuals	to Sri Lanka against
their will appears to be well established.

I recognise that the presence of these four persons in Australia

places the Government in a difficult position. Nonetheless because of the desperate risks which the Department's ordinary policy considerations in such circumstances would cause to such people, I understand that the Department's Sri Lankan Case Management policy was recently reassessed at the request of the United Nations Eigh Commissioner for Refugees."

- 4 -

As I understand the evidence in the current case, the Hlnlster raises or seeks to raise no issues at all about any of these matters so far as

they are of general application. Indeed, one of the Mlnlster's

witnesses at the hearlng conceded that such matters are taken into account and were taken into account by the DORS Committee ln thls particular case. In addltlon, the applicants tendered, without objection, a considerable volume of material from Amnesty International which provided ample statistical and detailed support for the assertions in those two paragraphs. At the time of their tender, counsel for the Minister said that while he did not admitt every single statement in the material, he did not object because this material was before the WRS Committee at the time it made its determination.

The matters which are for decision in this case are qulte different to

the matter to which the letter was directed. It has often been pointed

out that the Court in exercising its jurisdlctlon under the Administrative Decisions (Judicial Review) Act 1977 does not put Itself

in the place of the declsion-maker. It is not for the Court to

determine whether the general statements made in those two paragraphs are correct, nor whether the persons concerned in that case or this are entitled to be permitted to remain in Australia on compassionate and humanitarian grounds. The Court's role is by now well known and does not need repetition here, but it certainly does not Involve a consideration of such questions. In any case, as I have sald, there does not appear to be any issue in these proceedings that Sri Lankan

Tamlls are actually and potentlally llable to discrimlnatlon and human

rights abuses in Sri Lanka. In these circumstances thls case cannot

turn on the appropriateness of remarks about the situatlon generally.

- 5 -

Counsel for the Minister drew attention to evidence given in thls case

that Sri Lankans do not generally suffer serious problems in the south

of Sri Lanka. I do not know whether that is true or not, but assuming

it to be true, there is nothing in the letter which contests it. I do

not know whether the present applicants come from the south, the north or any other part of that country, nor from where the persons who were the subject of the letter come.

The applicants, through their counsel, have indicated that they may be asking the Court to find that they are entitled to refugee status. Regardless of the present issue, I have said that I would take

considerable persuasion that even if the Court has power to make such a

ruling, it should do so in this or in any other case. Counsel could not identify a case, nor do I know of one, in which such an order has been made. My impression is that authority which is binding on me would make such an application extremely difficult, If not impossible, to accede to. In any case, It would obviously have to depend upon its own facts and these facts would necessarlly be different to those In the cases of

the persons about whom the letter was written. For myself, I do not

know what were the relevant facts concerning the persons referred to in

the letter, as the letter made no application for a reversal	of the
decision of the DORS Committee.

In my vlew, there is no substance to the applicatlon that I should disqualify myself from the further hearing of the matter. No party or fair minded observer could, in my opinion, reasonably percelve that I could not deliver decision In this matter in the usual completely

. - 6 -

dispassionate way, nor do I believe that there is available any reasonable perception of prejudgment of any issue In this case by reason of anything in the letter. It is as equally unavailable in perception as it is in fact.

The application is refused.

_ .

Counsel for the	Applicant:	Mr. M. Smith, instructed by Mr. J. Fltzgerald,
Australian Legal Aid Office

Counsel for Respondent Minister:

Mr. R. Gyles, QC with

Mr. P. Eastings, instructed by

Australian Government Solicitor.