Pancharatnam v Minister for Immigration, Local Government & Ethnic Affairs
[1991] FCA 525
•29 AUGUST 1991
Re: CHANDRAMORGAN PANCHARATNAM
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G373 of 1990
FED No. 525
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)
CATCHWORDS
Administrative Law - Administrative decisions review legislation - Administrative Decisions (Judicial Review) Act 1977 (Cth) - Grounds for review of decision - Improper exercise of power - Unreasonableness - Inferred from absence from reasons for decision of a basis for a finding stated in those reasons.
Migration Act 1958
Australian Broadcasting Tribunal v. Bond (1990) 64 ALJR 462
Broussard v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180
Kioa v. West (1958) 159 CLR 550
HEARING
MELBOURNE
#DATE 29:8:1991
Counsel for the Applicant: Mr O.P. Holdenson
instructed by Erskine H. Rodan
Counsel for the Respondent: Mr R.R.S. Tracey
instructed by Australian Government Solicitor
ORDER
1. The decision of the respondent's delegate made 15 May 1989 that the applicant has not the status of refugee within the meaning of the Convention relating to the status of refugees that was done at Geneva on 28 July 1951 or the protocol relating to the status of refugees that was done at New York on 31 January 1967 be set aside.
2. The decision of the respondent's delegate made 27 November 1990 that the applicant has not the status of refugee within the meaning of the Convention relating to the status of refugees that was done at Geneva on 28 June 1951 or the protocol relating to the status of refugees that was done at New York on 31 January 1967 be set aside.
3. The applicant's application for a determination that he has the status aforesaid be considered and determined according to law by the respondent or his delegate.
4. Save as aforesaid the proceeding be dismissed.
5. There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Application for an order of review in respect of several administrative decisions under the Migration Act 1958.
The applicant is a Sri Lankan man who was born on 20 December 1954. In May 1986 he arrived in this country on a commercial aeroplane in unlawful possession of heroin and a false passport. He was arrested before he left the airport. In November 1986 he was sentenced in the County Court of Victoria to imprisonment for 8 years on a count of importing the heroin into Australia and to a concurrent term of one year's imprisonment for being in possession of the passport. A direction was given that he serve 6 years before he should become eligible for release on parole. On 30 May 1989 his application for the grant of an entry permit was refused by one of the respondent's delegates who on a reconsideration of her decision at the applicant's request maintained that refusal on 19 February 1990.
Each of those decisions of the delegate was a subject of application for an order of review. On each occasion the considerations advanced by the applicant in support of his application, which was for such an entry permit as would enable him to remain here indefinitely, could have been appropriately described as "strong compassionate or humanitarian grounds". Accordingly the delegate concerned herself, as paragraph 6A(1)(e) of the Migration Act 1958 required, with the question whether there were such grounds for the grant of such an entry permit and, if there were, whether the applicant should be granted a temporary entry permit, without which the grant of an entry permit other than a temporary entry permit was forbidden by that paragraph.
One ground of the application to this court was that a breach of the rules of natural justice occurred in connection with the making of each decision in that the content of an anonymous letter in the delegate's hands had not been disclosed to the applicant so that he could make answer to the allegations contained in the letter. The letter had been sent to "The Public Prosecutor" at an address where Victorian governmental offices were located. The letter included statements that the applicant "appears to have been sent here by Tamil terrorist groups in South India" and that he is "part of a powerful international network of drug dealers". Mr Tracey of counsel for the respondent made two answers to the ground advanced. The unsubstantiated allegations in the letter, virtually devoid of particularity, lacked the credibility which is, according to Brennan J. in Kioa v. West 1958) 159 CLR 550 at 628, one of the attributes of information in the hands of an administrative decision maker which procedural fairness requires that he disclose to the person against whose interest the information tends. Further, the substance of the allegation in the letter had been drawn to the attention of the respondent's officers by the applicant himself. In June 1986, immediately after conviction and sentence, the applicant had asserted to the respondent's officers in writing that the Sri Lankan ambassador to Australia had informed the Sri Lankan government that the applicant was "a Tamil terrorist who arrived with drugs for funds to fight against" that government. The material before the delegate showed that the applicant had also informed such an officer that an official representative of the Sri Lankan government had stated on a "Willesee program" on Australian television that the applicant had brought heroin into Australia in order to raise money for the purchase of weapons to be used by Tamils in conflict with the Sri Lankan police and army. The information was given during an interview on 13 September 1988 in the course of which the applicant gave a full account of the circumstances under which he came to bring the heroin to Australia and of his purpose in doing so. That account contradicted the allegation in the letter and, if it was in fact made, the allegation on television which the applicant had reported. There was no evidence to support a suspicion that the delegate might have given credence to the letter. In all those circumstances the ground cannot in my opinion be upheld.
In November 1988 and again in November 1990 the DORS Committee considered and recommended rejection of an application by the applicant that he be accorded the status of refugee. In May 1989 and again in November 1990 a delegate of the respondent determined, after considering the DORS Committee's first and second recommendations respectively, that the applicant had not the status of refugee, and thus precluded the grant to the applicant of an entry permit upon his satisfying the requirements of paragraph 6A(1)(c) of the Migration Act 1958. An order of review in respect of each of those two decisions was sought. On 6 September 1988 the DORS Committee secretariat directed the following enquires to the Department of Foreign Affairs and Trade:
"Is he a drug courier? If so, for what reasons was he running drugs and at whose request?
Who is Mr Sundaram? Why did he say on TV that the applicant was a drug courier? Which TV programme? When?"
Mr Sundaram was the name given by the applicant to a departmental officer as that of another participant in the television programme, not that of the Sri Lankan governmental representative said to have named the applicant during the programme as a courier for "Tamil terrorists" who sought to raise money for weapons purchases. An ambiguously expressed document induced the confusion, which had been dispelled by 29 November 1988 when the DORS Committee made its first decision on the application for refugee status. The minutes of the meeting of the Committee on that date include the following passages:
"The applicant claims that whilst he was attempting to obtain a visa in India he met up with another Tamil named Mohendran in a bar in Madras, who invited him to stay in his house and offered to arrange a visa for him. The applicant claims that he did not know at this stage that Mohendran was involved in drug running and he seemed at the time to be a trust-worthy person. He claims he later agreed to carry the drugs as he could see no other way of getting to Australia. Mohendran organised a Passport, visa and promised to pay him $5000 on delivery of the drugs in Australia. He claims that he was advised that it was not illegal to carry drugs to Australia but all the same he was worried and decided to try to dispose of his suitcase before he travelled, but in the end this was not possible. ........ ........ ........ ........ ........ ....... The applicant fears return to Sri Lanka as he claims the Sri Lankan Government is aware of his actions due to a television program, 'The Willesee show' telecast sometime in 1987, where a Sri Lankan Government spokesman, who may have been attached to the Sri Lankan Embassy in Australia was interviewed with a Tamil person regarding the drug running by Sri Lankans to Australia and other parts of the world. He claims his name and the fact that he was in Pentridge was mentioned by the Government spokesman who also said that the profits of the drug running is used to fund the Tamil's fight for a separate state in Sri Lanka.
The applicant believes he would be arrested, tortured and then killed if he returned to Sri Lanka.
........ ........ ........ ........ ........ ....... DFAT VIEW:
Mr Pancharatnam and his family have not been involved in militant or political groups. His brother, however, died after being arrested when a group of Tamil youths was rounded up. Furthermore, Mr Pancharatnam's father died and family property was destroyed during military operations on the Jaffna peninsula.
We do not consider that Mr Pancharatnam would be at risk in Sri Lanka for reasons of 'race, religion nationality, membership of a particular social group or political opinion'. It is possible, however, that he would come to the attention of the Sri Lankan authorities because of his drug trafficking, particularly if he were deported. He claims that the authorities are already aware of his activities.
Our High Commission in Colombo has previously reported that: - in the case of persons with known narcotics records, it is only to be expected that police authorities would like to be informed of the return of such a person and would take the opportunity to question them;
- however in the absence of any local charges against them, they would not be held;
- if there were a known or alleged association with Tamil militant groups, the person might be questioned longer than otherwise. However the Government has made it a practice since the Peace Accord of 29 July 1987 of not holding Tamil Sri Lankans who have no record of close involvement in acts of militancy in the country.
Mr Pancharatnam has no such record, nor does his family. We do not consider that he has established that he has a well-founded fear of being persecuted."
"DFAT" is an acronym for the Department of Foreign Affairs and Trade. A representative of each of several Commonwealth departments sits on the DORS Committee.
The delegate who decided in May 1989 that the applicant had not the status of a refugee disclosed in a statement of his reasons for that decision furnished in pursuance of s.13 of the Administrative Decisions (Judicial Review) Act 1977 that he had considered the recommendation of the DORS Committee and the advice that "if there were a known or alleged association with Tamil militant groups the person might be questioned longer than otherwise". After noting that advice the delegate's statement continues:
"However, given DILGEA's assessment that the Applicant has no political profile and the fact that he has no record of involvement in militant acts, I did not consider that, notwithstanding the hearsay evidence of the television program, the authorities would see his criminal activities as having a political motive which would lead them to persecute him."
"DILGEA" is an acronym for the respondent's department.
The delegate who in the same month decided to refuse the applicant an entry permit endorsed as "comprehensive, fair and correct" a subordinate officer's written submission and recommendation concerning the application for the permit. The latter document included the following observation upon the applicant's claimed fear of persecution by the Sri Lankan government by reason of that government's belief that he is "a Tamil terrorist using drug importation to fund the Tamil cause":
"I accept that the applicant may well have come to the notice of the Sri Lankan authorities as a result of his criminal activity and conviction in Australia. It is also possible that he will be questioned by the authorities upon his return to Sri Lanka. However, according to the advice received from the Australian High Commission in Colombo (folio 112), he is unlikely to be held in custody in the absence of any local charges.
I do not consider that this claim constitutes strong grounds for compassionate or humanitarian consideration."
There is nothing in the evidence before the court to suggest that in the reconsideration of the two decisions by the respondent's delegates any further material was to hand, relevant to the question whether on his return to Sri Lanka the applicant would suffer governmental persecution by reason of the government's perception of him as a Tamil who had knowingly helped in raising money for weapons purchases for use in Sri Lanka against persons loyal to that government.
The evidence showed that no attempt was made by any of the respondent's officers to discover whether a representative of the Sri Lankan government had on Australian television named the applicant as one who had imported drugs into this country knowing that the proceeds of the enterprise were to be used for such weapons purchases. But, as the reasoning on this question assumes that that statement had been made on television, the omission cannot found a ground of review. I was informed by Mr Tracey that the document to which reference is made as "folio 112" could not be found. It cannot be determined whether it is a document by which, as the minutes of the DORS Committee's meeting record, "Our High Commission in Colombo has previously reported". The word "previously" may be thought to suggest that that report was not made in response to an enquiry concerning this applicant. There was no evidence as to whether that report was intended by its author to comprehend the length of the questioning which might be expected in the case of a man publicly accused on Australian television by a Sri Lankan government representative of aiding Tamil terrorists to raise money for weapons purchases by drug running. The terms of the enquiry, if enquiry there was, in response to which that report, or "folio 112", was written were not disclosed by the evidence.
I have given anxious consideration to the question whether the reasoning, of any of the delegates who made each of the four decisions to which I have referred, on this topic was such as to result in the conclusion that the decision was subject to review on the ground specified in paragraph 5(2)(g), and so on the ground specified in paragraph 5(1)(e), of the Administrative Decisions (Judicial Review) Act 1977, or whether that reasoning was such as to fail to comply with those requirements of logicality which Deane J. attributed in Australian Broadcasting Tribunal v. Bond (1990) 64 ALJR 462 at 482-483 to the duty to afford natural justice to such an applicant as this. The passage from the reasons for the decision of May 1989 concerning refugee status which is quoted in paragraph 6 hereof was written in October 1990. In December 1990 another delegate furnished a statement of his reasons for his decision, made on 27 November 1990, that the applicant does not have the status of refugee. That statement included this paragraph:
"24 I took into consideration the Applicant's claim that he would face persecutory treatment if returned to Sri Lanka because
(a) his name had been mentioned in an Australian television report on drug-running by Sri Lankans, and (b) it had been suggested by a spokesman for the Sri Lankan government on the same report that the profits from the drug-running were to fund the Tamil militants movement. I referred to DFAT's advice that the Sri Lankan police authorities would take the opportunity to question a person with a known narcotics record if they were aware of the return of such a person. That person, however, would not be detained if the police did not have any local charges against him/her. DFAT further advised that Tamils who did not have records of close involvement in acts of militancy in Sri Lanka were not held by the authorities when they enter/re-enter that country. Given DFAT's advice, and DILGEA's finding that the Applicant had no political profile, no record of involvement in militant acts and no record of security force interest, I assessed that the authorities would not impute his criminal activities with a political motive. Moreover, I did not consider that the alleged mention of the Applicant in an Australian television program dealing with drug-running by Sri Lankans would place him in a position where he should face persecution if he returned to Sri Lanka. In any event, it was my understanding that the Applicant's offence in Australia did not come under the jurisdiction of Sri Lankan law."
The advice of the Department of Foreign Affairs and Trade, as recorded in the minutes of both the meetings of the DORS Committee at which recommendations against the applicant's recognition as a refugee were made, was that Tamils entering Sri Lanka who do not have records of "close involvement in acts of militancy in" that country are not "held" by the governmental authorities in Sri Lanka. Since the reported statement on television was an allegation of a known (or suspected) act of militancy by the applicant committed outside Sri Lanka, the delegate might be said to find in that advice by the Department of Foreign Affairs and Trade justification for his conclusion, stated in a paragraph following the paragraph I have quoted, that the applicant had no real chance of facing persecution if he returned to Sri Lanka. But neither that advice nor anything else in the material before the delegate or in his reasoning justifies the opinion he expresses that the Sri Lankan "authorities would not impute his criminal activities with a political motive". If that opinion rests on a premise that the Sri Lankan government representative alleged to have made the televised allegation would not have reported the allegation to his home government, or on a premise that the report, if made, would be ignored or disbelieved by that government, the premise nowhere finds expression. The adoption of any such a premise is almost as surprising, to a mind uninstructed by evidence, and denied judicial knowledge, about the workings of Sri Lankan governmental agencies, as the opinion that those agencies would not seek to "hold" a Tamil who engaged in so grave an act of "militancy" as running drugs to get money for weapons to use against that government, provided he did it outside Sri Lanka.
The terms in which the delegate expressed his final conclusions suggest that the question whether Sri Lankan government authorities would impute a political motive to the applicant's handling heroin was important in the making of his decision and that the delegate had in mind the provisions of the Convention, as amended by the Protocol. Article 1A(2) provides that the term "refugee" shall apply to any person who:
"owing to 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; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it."
The delegate's final conclusions are expressed thus:
"26. After consideration of all the available information, I concluded that the Applicant did not have a real chance of facing persecutory treatment on the grounds of his Tamil ethnicity if returned to Sri Lanka. I did not consider that his offence of drug-running came within the terms of the Convention, nor did I accept that the Sri Lankan authorities would impute a political motive to this criminal act. Accordingly, I determined that the Applicant was not a refugee within the meaning of the Convention and Protocol."
That paragraph indicates that the delegate's mind may have been directed to the question whether a well-founded fear of persecution to be inflicted because the victim had committed a crime and not because the crime gave effect to a political opinion could satisfy the requirements of the Convention definition of the word "refugee". It is in my opinion at least arguable that, where a regime persecutes those who have committed outside its borders a particular kind of crime in order to advance a political cause, but not those who have committed that kind of crime outside its borders without a political motive, a well-founded fear of that persecution may be said to be "well-founded fear of being persecuted for reasons of .... political opinion", within the meaning of that phrase in Article 1A(2).
If I were mistaken in the conclusion expressed in paragraph 9 hereof that the four decisions were taken on the assumption that a representative of the Sri Lankan government had named the applicant on Australian television as a person who had imported drugs into this country knowing that the proceeds of the enterprise were to be used for Tamil weapons purchases, it would be necessary to consider whether the failure of the decision maker to warn the applicant that he did not accept that that statement had been made by such a representative, so that the applicant might have an opportunity to persuade the decision-maker that it had, constituted a breach of the rules of natural justice. Mr Tracey made a submission to which the following statement by Mason J. in Kioa v. West (1985) 159 CLR 550 at 587 gives succinct expression:
"The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward."
But if an assertion of historical fact is to be rejected by a decision maker in circumstances where the existence of the fact asserted is of importance in the decision of the case and a failure to accept the evidentiary material furnished by him who asserts the fact to establish the existence of the fact is not reasonably to be expected, an obligation may in my opinion fall on the decision maker to give him who asserts the fact an opportunity to furnish further evidentiary material. (Cf. Broussard v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180 at 189-190.) In this case the delegate had the opinion of the Department of Foreign Affairs and Trade that "Tamils who do not have records of close involvement in acts of militancy in the country are not held by the authorities when they enter Sri Lanka" on which to rest a conclusion that those authorities, even if they believed that the applicant had had a close involvement in the militant act of running drugs for money to buy weapons for Tamils, would not hold him when he entered Sri Lanka because his involvement had not been in that country. But for the conclusion, to which he came, that those authorities would not "impute a political motive to this criminal act" the delegate could reasonably have had as a basis only the belief that nobody whose word those authorities trusted would have told them, by the time the applicant entered Sri Lanka, that it had been a politically motivated act. In order reasonably to hold such a belief the delegate must have either lacked persuasion that the statement alleged to have been made on television had been made, or lacked persuasion that the person who made the statement believed it to be true, or lacked persuasion that the person who made the statement, believing it to be true, had repeated, or would before the applicant entered Sri Lanka repeat, the statement to the authorities in Sri Lanka whose representative in Australia he was. There is nothing to suggest that the delegate's mind was in either of the latter two states. If he lacked persuasion that the statement had been made, he was in my opinion under an obligation, deriving from the duty to accord the applicant procedural fairness, either to find out whether it had been made or to give the applicant a further opportunity to persuade him that it had. The earlier assertion by the applicant that the statement had been made was not one that the applicant could reasonably anticipate that the delegate might fail to accept unless the delegate had by his own enquiry ascertained that it had not been made. The importance of the fact asserted in the decision of the application should be inferred from the fact that the delegate's explicit finding that the Sri Lankan authorities would not impute a political motive to the applicant's "criminal act" is placed by him in the statement of his final conclusions as justifying his determination that the applicant was not a refugee.
I return to a consideration of the reasonableness of the conclusion that the Sri Lankan authorities would not impute a political motive to the applicant's importation of heroin into Australia, on the assumption that the televised statement had been made. It would not be reasonable of the decision maker to conclude that a Sri Lankan governmental representative would make such a public statement without a belief in its truth, unless the decision maker had some information to justify the conclusion. The absence of any reference either to the conclusion or to any such information justifies, in my opinion, a finding that either the conclusion was not reached by the decision maker or the information was not in the decision maker's possession. If the decision maker did not come to that conclusion, it would not be reasonable of him to think that the governmental representative would not communicate his belief about the applicant to his home government, or to think that the home government would not accept what their representative had told them, unless the decision maker had some information to justify his thinking either of those things. No suggestion appears that any of the decision makers did have any such information. I find that the statement, in paragraphs 24 and 26 of the statement of reasons for the decision made on 27 November 1990 that the applicant had not the status of refugee, that the Sri Lankan authorities would not impute a political motive to the applicant's importation of heroin into this country was one that no person in the position of the decision maker, as that position appears from the evidence before me, could reasonably have made. Since the decision itself is one in the making of which the decision maker attributed importance to the statement, I conclude that the exercise of power constituted by that decision was of the description contained in paragraph 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977.
It might be objected that it can hardly matter whether the delegate thought that the Sri Lankan authorities would regard the importation of the heroin as having been politically motivated, because he had, and he accepted, the expert opinion of the Department of Foreign Affairs and Trade that "Tamils who do not have records of close involvement in acts of militancy in the country are not held by the authorities when they enter Sri Lanka". The applicant's close involvement in an act of militancy, if that is what his importation of heroin was, did not occur in Sri Lanka. Whether or not the Sri Lankan authorities under whose eyes he passes into that country think he did have that close involvement, he will not be "held", if the opinion expressed by the Department of Foreign Affairs and Trade be correct. But if refugee status is to be denied by reasoning to the validity of which acceptance of that opinion is essential, it is in my opinion of great importance that that be made quite clear, so that the Australian community may know now - and recall later, if the prophetic opinion is falsified upon the applicant's entry to Sri Lanka - where responsibility lies for that denial. There should be no blurring of that responsibility by reference to the quite distinct opinion expressed by the decision maker that the Sri Lankan authorities would not impute a political motive to the applicant's importation of the heroin.
The statement of the delegate's reasons for his decision of 15 May 1989 to deny the applicant refugee status reveals essentially the same reasoning as that of the delegate who made the decision of 27 November 1990 which I have found to bring the decision within paragraph 5(2)(g). Both decisions will be set aside on that ground. The same reasoning does not appear to have been adopted by the delegate who on two occasions decided not to grant the applicant an entry permit.
It was a ground of each application for an order of review that the applicant was not afforded an opportunity, to which in natural justice it was submitted that he was entitled, to place before the decision maker in each case certain assertions of fact which he had in fact communicated to one of the respondent's officers at an interview on 24 September 1987. The tape recorder which was switched on in the room where the interview took place failed to record the conversation. That was not discovered until after the officer, Mr Webster, had left the place where the interview was conducted. The applicant was not notified of the loss of the information he had given Mr Webster until after the impugned decisions had been made. It was submitted that procedural fairness required that the applicant should have been told what had happened, so that he could repeat what he had told Mr Webster to one of the respondent's officers. One response by Mr Tracey to the submission was that at subsequent interviews the applicant was exhorted, as is common at such interviews, to state every circumstance he considered relevant to his application. That is hardly a sufficient answer. A man in the applicant's position who is so exhorted may well refrain from stating circumstances which he believes, on reasonable grounds, to have been previously recorded for the purpose of placing it before the decision maker. Mr Tracey's other response was to show that the substance of what the applicant alleges he told Mr Webster was brought before the decision makers by other means. I accept that submission. Most of the circumstances disclosed to Mr Webster were instances of persecutory violence by agents of the Sri Lankan government against members of the applicant's family in Sri Lanka during substantial periods when the applicant himself had been outside that country. These allegations, some of the particulars of which reached the decision maker in confusing, sometimes contradictory versions, were nevertheless all before the decision maker. It was not suggested, to the decision maker or to Mr Webster or to this court, that an inference should be drawn from the sufferings of the applicant's relatives that he would be a particular object of persecution in Sri Lanka as a member of that family. The circumstances were put forward to induce a finding that any Tamil, alternatively any Tamil in the north of Sri Lanka, was likely to be treated in the way members of the applicant's family had been treated, and a finding that the applicant's fear of extreme, unlawful violence at the hands of agents of the government in Sri Lanka was well-founded. If the published reports by Amnesty International on the state of affairs in Sri Lanka, which the applicant placed before the decision makers, did not induce those findings, it seems to me very unlikely that the applicant's allegations, if they had been presented with the accurate particularity he might have achieved upon a repetition of what he had told Mr Webster, would have induced the findings.
It was submitted that unfavourable impressions of the applicant's "credibility" were formed in the DORS Committee and by the delegates who denied the applicant recognition as a refugee, and that that was a consequence of his having been left in ignorance of the absence from the departmental file of the content of his interview with Mr Webster. But the expressed reasoning which led to refusal of an entry permit and refusal of recognition as a refugee does not at all depend on any adverse opinion of the applicant's truthfulness. It is a striking feature of the voluminous material in this case that there is no trace of a concern to ascertain whether or not the applicant's denial that he imported heroin believing that the proceeds were for weapons purchases should be accepted, or (save for the DORS Committee secretariat enquiry quoted in paragraph 5 hereof) whether or not his account of the television programme was true. Further, when the applicant was cross-examined on the hearing of this application his evidence revealed that, if he is a truthful person, he has a strong tendency, by reason either of his poor command of English or of his confusion of thought, to give an impression of untruthfulness. In all the circumstances I do not consider that I would be justified in granting an order of review on this ground.
There were other grounds of review raised, but none of them in my judgment of any substance. A deportation order was made in October 1989. An order of review in respect of the decision to make that deportation order was sought. The evidence does not persuade me that reasoning of the kind which I have held to have vitiated the decisions concerning refugee status was involved in the making of the decision to deport the applicant. It is, as I suppose, possible that the respondent might decide that the applicant should not be deported, or that he should not be deported to Sri Lanka, if on further consideration it were determined that he does have the status of refugee. I will hear counsel for the parties as to whether an order should be made to prevent deportation until the question whether he has that status has been considered and determined according to law.
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