Paramananthan v Minister for Immigration and Multicultural Affairs

[1998] FCA 1693

Kirushanthan Paramananthan v Minister For Immigration & Multicultural Affairs
NG 533 of 1998, NG 652 of 1998
FED No. 1693/98
Migration
(1998) 94 FCR 28, (1999) 160 ALR 24

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

WILCOX, LINDGREN AND MERKEL JJ

Migration - appeals in one case by refugee-claimant, in other by Minister - application for judicial review of decisions of Refugee Review Tribunal failed in one case and succeeded in the other - substantially identical passage in Tribunal's Reasons for Decision in both cases - arrest, detention and interrogation of young Tamil males from areas in Sri Lanka controlled by Liberation Tigers of Tamil Eelam - subsequent torture in detention - Tribunal's approach of distinguishing between detention of such persons and what happened to them in detention - former, although discriminatory, held not "persecution" because motivated by need to combat terrorism - latter held not shown to be motivated by Convention ground - error of law arising from approach taken - failure to address question whether "real chance" of persecution - failure to address claims made in recent report supplied by refugee-claimants' solicitor to Tribunal.

Migration Act 1958 ss 430, 476 (1) (a), (e)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, considered

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, considered

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, considered

(See also this decision at first instance reported as Paramanathan (sic) [1998] 94 FCR 1)

NG 533 of 1998

SYDNEY, 13 November 1998 (hearing), 21 December 1998 (decision)

#DATE 21:12:1998

Appearances

Counsel for the Applicant: Mr N J Williams with Ms S McNaughton

Solicitor for the Applicant: McDonnells

Counsel for the Respondent: Mr R Tracey QC with Mr D Godwin

Solicitor for the Respondent: Australian Government Solicitor

NG 652 of 1998

SYDNEY, 12 November 1998 (hearing), 21 December 1998 (decision)

Appearances

Counsel for the Applicant: Mr R Tracey QC with Mr D Godwin

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the Respondent: Mr M W Gerkens of M W Gerkens & Associates

NG 533 of 1998

THE COURT ORDERS THAT:

1. The appeal be allowed.

   2. The orders made on 15 May 1998 in proceeding NG 533 of 1998 be set aside and in lieu thereof it be ordered that the decision of the Refugee Review Tribunal dated 7 January 1998 be set aside and the matter be remitted to that Tribunal, differently constituted, for consideration and determination in accordance with law, and that the respondent pay the costs of the appellant as applicant in that proceeding.

   3. The respondent pay the appellant's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

NG 652 of 1998

THE COURT ORDERS THAT:

1. The appeal be dismissed.

   2. The appellant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WILCOX J

In his reasons for judgment, Merkel J sets out the pertinent facts of these two cases and explains how they come before the Court. I need not repeat that material. Also, I am in general agreement with what his Honour says about the merits of the appeals. However, in view of the conflict between the positions taken at first instance by Davies J and Burchett J, it is appropriate I state in my own words my reasons for concluding that both these matters should be remitted to the Refugee Review Tribunal for further consideration and redetermination.

In each of the subject cases, the Tribunal - which was constituted by the same person in each case - accepted that the relevant applicant feared persecution, for reasons of race or imputed political opinion, if he was returned to Sri Lanka. This acceptance satisfied the subjective element in the definition of "refugee" in the Convention relating to the Status of Refugees, as amended by the 1967 Protocol. Counsel for the Minister for Immigration and Multicultural Affairs do not suggest otherwise.

The contentious point in each case is whether the Tribunal relevantly erred in determining the fear of the applicant was not "well founded"; that is, the objective element was not satisfied.

It seems to me, in each case, the Tribunal did err in that determination, and in two major respects:

(i) in failing to make - or, at least, state - factual findings in respect of all the issues on which its decision turned; and

(ii) in treating "indiscriminate cruelty" to a predominantly Tamil pool of prisoners as necessarily falling outside the concept of persecution for reasons of race, membership of a particular social group or political opinion.

I will deal separately with these points.

FINDINGS

Section 430 of the Migration Act 1958 imposes on the Refugee Review Tribunal an obligation to state its reasons for decision:

"430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based.

2. The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made.

3. Where the Tribunal has prepared the written statement, the Tribunal must:

(a) return to the Secretary any document that the Secretary has provided in relation to the review; and

(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based."

I accept the submission of counsel for the Minister that this section does not impose on the Tribunal an obligation to make findings about every factual matter mentioned in an applicant's claim. Paragraph (c) of subs (1) refers to "findings on any material questions of fact". Findings need be stated only in relation to questions that are material to the ultimate decision. I also accept that such findings as the Tribunal does make should not to be construed in an over-critical way, "with an eye keenly attuned to the perception of error": see Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, adopted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. On the other hand it is important that a reader be able to discern what conclusions the Tribunal reached about the issues relevant to the ultimate decision. One of the purposes of s430 is to ensure that unsuccessful applicants for a protection visa are told why their application has failed; if the reason, or one of the reasons, was that the Tribunal rejected a significant factual claim, the Tribunal must say so and indicate the factual material on which the adverse finding was based.

I do not think the Tribunal met this requirement in either of the subject cases. In order to justify that conclusion, it is necessary to refer to the Tribunal's reasons for decision. I will commence with the decision relating to Mr Paramananthan, which was given earlier (7 January 1998) than the decision in Mr Sivarasa's case (16 February 1998).

Mr Paramananthan made claims about mistreatment, at the hands of the Indian Peace Keeping Force and the Liberation Tigers of Tamil ("LTTE"), in the period before he fled the Jaffna peninsula in about April 1997. The Tribunal seems to have accepted the truthfulness of these claims, but to have regarded them as immaterial to the question whether the applicant faced a real chance of persecution if returned to Sri Lanka; presumably this was because he could reside in Colombo. I do not think the Tribunal is to be criticised for taking that approach.

Mr Paramananthan's critical claims related to events that were said to have occurred when he was en route to Colombo or after he arrived there. Mr Paramananthan said he travelled to Colombo with his mother "by the back way to Vanuniya". I gather they went "the back way" because they had no LTTE pass, which was apparently necessary if one was overtly to leave an LTTE controlled area. Mr Paramananthan claimed that, at Thandikulam, he and his mother were stopped by soldiers and separated; he was taken to Veppankulam camp where he was blindfolded and gagged, then taken to another place, interrogated and tortured. After two days, Mr Paramananthan was returned to Veppankulam camp where he was again mistreated. He was eventually released when an "agent" sent from Colombo by his mother (who had been earlier released and gone on ahead) negotiated a bribe.

In relation to this incident, the Tribunal member said:

"He made no claims that his association with the LTTE caused him to come to the notice of the authorities until this year, when in April he and his mother were attempting to leave the LTTE-held Vanni and were apprehended by the security forces on the approach to Thandikulam en route to Vavuniya. He stated that he was beaten, tortured and interrogated on this occasion, taken to Veppenkulam camp and from there 'taken to another location where I was questioned and beaten up'. A report by Hope for Human Rights, Colombo The Vavuniya Situation. January 1997 (CX22849) states that 'Screening of selected youth does take place at Thandikulam Checkpoint. It is not unusual for these people to be kept in the Thandikulam camp for up to four weeks. ...there are inconsistencies in the way release procedures are being administered.' Of the Veppankulam camp, where the applicant states he was taken, the report states that 'Veppankulam Transit Camp, which had been established as a transit camp ... is now also being used as a Welfare Centre.' It explains that Welfare Centres are used to hold people who had fled from Jaffna, and to be released for travel to Colombo a Jaffna Tamil must be vouched for by a person in Colombo. In the applicant's case this appears to have been arranged by an agent and he left the camp within a month of arriving at the camp, a period not unusual under the prevailing circumstances."

The reference to "this year", in the opening sentence of the passage, was obviously intended to be a reference to 1997.

The picture that emerges from the member's citations - "screening of selected youth" at Thandikulam check point and a "transit camp" at Veppankulam welfare centre - conflicts with the impression conveyed by Mr Paramananthan's claims. The Tribunal did not attempt to resolve the conflict. The member contented herself with saying that, while she had "reservations as to whether the applicant during his various periods of detention suffered mistreatment to the extent he has alleged" (she did not say why), "in the absence of contrary evidence", she was "prepared to give him the benefit of the doubt."

The next incident claimed by Mr Paramananthan occurred in Colombo. He said he was "rounded up" (apparently from the lodge where he was staying with his mother) by the police on 23 May, questioned and mistreated. He was kept in the police station for five days and released after the agent bribed a police officer. After this incident, Mr Paramananthan went into hiding in a house owned by a Muslim woman until his first attempt to leave Sri Lanka in September 1997. He reached Singapore but was returned to Colombo. On arrival he was detained at the airport, beaten and questioned, but released after payment of another bribe. Mr Paramananthan returned to the Muslim house but, after an arms cache was found in the area, he was taken into custody by police, blindfolded, beaten and interrogated. He was held from 16 September to 20 September, before being released, following intervention by the agent. The agent obtained an airline ticket and Mr Paramananthan left Sri Lanka the following day.

The Tribunal accepted Mr Paramananthan's claims of detention in May and September and that he was mistreated. The previously mentioned reservations as to the extent of Mr Paramananthan's mistreatment apparently apply, but so does the "benefit of the doubt". That means the Tribunal purported to evaluate the claim on the basis that, during the six months immediately preceding his final departure from Sri Lanka, Mr Paramananthan was on four occasions detained, three times over a period of some days. During at least three of the detentions, he was beaten and/or tortured.

Despite this factual background, the Tribunal determined there was no real chance of persecution if Mr Paramananthan was returned to Sri Lanka. The Tribunal gave two reasons. First, "there is no suggestion that such mistreatment was directed in a discriminatory way towards any particular group such as young Tamil males". I will return to that reason. The second reason was "the recent improvement in human rights referred to in the Amnesty 1996 report on Sri Lanka cited above". This was a reference to the 1996 Amnesty International Country Report for Sri Lanka supplied to the Tribunal by Mr Paramananthan's solicitor, along with other documents including the British Refugee Council's Paper Sri Lankan Tamils, the Home Office and the Forgotten War, dated February 1997. Both these documents are in evidence.

It is difficult to see how the Tribunal drew comfort from the Amnesty document. Its flavour may be gauged from the portion of the Introduction dealing with human rights abuses by government functionaries, as distinct from LTTE.

"On 7 March 1996 Kanapathipillai Satheesh Kumar, a young Tamil man originally from Jaffna, northern Sri Lanka, who had recently returned to Sri Lanka from Saudi Arabia, 'disappeared' after he was arrested by the army from his home in Colombo. His 'disappearance' coincided with an Amnesty International visit to Sri Lanka during which the delegates expressed concern about continuous human rights violations, including torture and 'disappearances' taking place in the country. Fortunately, Satheesh Kumar was released two weeks later, on 23 March. At least 60 others arrested in a similar way since April 1995, however, remain 'disappeared' in the custody of the security forces.

The People's Alliance (PA) government has repeatedly proclaimed its commitment to human rights since it came to power in August 1994 and has introduced a number of safeguards to prevent torture and 'disappearances'. However, the Amnesty International delegation found that these grave violations of human rights are continuing. Most of them have occurred in the context of renewed fighting since April 1995 between the security forces and members of the Liberation Tigers of Tamil Eelam (LTTE), the main armed Tamil opposition group fighting for an independent state in the north and east of the country.

This document reviews the human rights situation in Sri Lanka since the PA government came to power. While noting and welcoming a marked improvement in comparison with the widespread pattern of gross and systematic violations than in previous years, Amnesty International is concerned that the government is not living up to its stated commitment to human rights. Despite lobbying by local and international human rights organizations, including the Human Rights Committee and the United Nations (UN) Working Group on Enforced or Involuntary Disappearances, the government refuses to amend provisions in several laws which fall far short of international standards and continue to facilitate torture, death in custody, 'disappearances' and extrajudicial executions.

Moreover, there are signs that the government may be reneging on its commitment to bring to justice the perpetrators of past human rights violations. In June 1996, two of the three commissions of inquiry into 'disappearances' and related human rights violations (those dealing with cases in areas outside the north and east) were asked to finalise their work by the end of that months despite having heard no evidence in relation to more than half the complaints put before them. Amid widespread protest, they were given a further extension till the end of September 1996.

Impunity for those responsible for human rights violations remains a serious concern. Progress in a few court cases against members of the security forces charged in connection with 'disappearances' and extrajudicial executions is slow: as are investigations into many other cases. Relatives of tens of thousands of people who were killed or 'disappeared' over the last 13 years or so are still waiting for justice to be done.

The evidence gathered during the Amnesty International visit clearly indicates that since April 1995 the security forces have arbitrarily detained thousands of Tamil people and have been responsible for torture as well as dozens of 'disappearances' and extrajudicial executions. Several of the 'disappearances' and extrajudicial executions have been attributed to armed Tamil groups opposed to the LTTE, in particular to members of the People's Liberation Organization of Tamil Eelam (PLOTE) and Tamil Eelam Liberation Organization (TELO), who seem to be allowed to operate in some areas with almost total impunity.

Some safeguards put in place by the government in mid-1995, particularly directives issued by President Chandrika Bandaranaike Kumaratunga in July to protect the welfare of detainees, are not being fully adhered to. Moreover, in Amnesty International's view, the government, by refusing to amend the Prevention of Terrorism Act (PTA) and the Emergency Regulations (ERs), which give the security forces wide powers to arrest and detain, is not tackling the underlying causes for the continuing high incidence of torture, death in custody and 'disappearances' reported in the country." (Emphasis added)

The British Council report was based on a visit to Sri Lanka in December 1996 by two senior officers. The report deals at length with the situation of Tamils, both in their traditional areas (the north and east of the island) and in Colombo. In the chapter headed "Life in the City", the report recounts estimates that, in 1995, "over 600 Tamils were being held illegally in Colombo jails or police stations, often in overcrowded and unsatisfactory conditions with no access to their relatives or legal representation". The report went on:

"It has also been estimated that more than 800 Tamils have been held for more than four years in Magazine and Kalatura prisons outside Colombo. A year later, Tamils continued to be held indefinitely in detention. According to the Tamil MP, Joseph Pararajasingham, 76 youths have been detained by police for over three months. One human rights activist told the Refugee Council that between 500 and 1,000 Tamils are detained every month."

Under the sub-heading "Continuing abuses", the report went on:

"In June 1995, the emaciated and decomposing bodies of young Tamils began surfacing in Bolgoda lake, south of Colombo. In the weeks that followed, others mysteriously surfaced in rivers and culverts around the capital. Most of the 31 bodies had been strangled or drowned. All, whether male or female, had their heads shaven. Most of them had been killed in the Special Task Force headquarters in Colombo. One student was fortunate to escape. He had been snatched by the police opposite the railway station before being detained, where his head was shaven and he was locked up, naked and blindfolded, with three other young Tamils. Fortunately, he was released. The others were all tortured.

In November 1996, the Supreme Court judge, Mr P Ramanathan, stated that, 'the court had made a number of judicial pronouncements against the use of torture and inhuman treatment by law enforcement officers, but regardless, torture in police stations continues unabated'. This was confirmed by a number of people the Refugee Council delegation met in Colombo. One high-ranking western diplomat confirmed that 'everyone' who is taken into custody gets roughed up a bit." (Emphasis added)

After dealing with what it called "a culture of impunity", in which it contrasted Sri Lankan government assurances of improvement of human rights with the lack of action against offending officers, the report concluded with these observations:

"Despite the attempts by the government to promote human rights, the culture within the Sri Lankan security forces remains suspicious of Tamils - in particular young males, although all Tamils, whether male or female, young or old, are at risk. That Tamils should come under suspicion because of the actions of the LTTE is understandable. What is concerning is the continued use of detention without trial, and in contravention of the Emergency Regulations; of torture to extract confessions, often in a language not understood or spoken by the signatory; and of extrajudicial executions which are linked to the security forces. While there has been a systematic reduction in human rights violations, particularly against the Sinhalese population, there continues to be human rights violations in Colombo, particularly against Tamils, which the government appears to be unwilling or unable to prevent. It is for this reason that Colombo should not be assumed to be safe for Sri Lankan Tamils." (Emphasis added)

The Tribunal was not, of course, bound to accept the information or opinions contained in this report. But the report was a recent, comprehensive, and carefully compiled analysis of the position of Tamils in Sri Lanka, including Colombo. It bore directly upon the matters in relation to which Mr Paramananthan expressed fears and spoke of mistreatment that included the type of mistreatment which, the Tribunal accepted, he had suffered. The matters of fact alleged in the report were clearly material. But the Tribunal member gave no inkling as to her reaction to them. Did she accept the report to be factually correct? If not, why not? If it was factually correct, how could it be an answer to Mr Paramananthan's claim of a real fear of persecution to refer to the (earlier) Amnesty comment that abuses were not so widespread as before? There may be persecution at a particular time notwithstanding there was more widespread persecution at an earlier time. Although it was for the Tribunal to decide what finding to make about the matters stated in the British Council report, it was obliged, by s430(1)(c) of the Act, to set out its findings and, by s430(1)(d), to refer to the evidence on which they were based. The Tribunal did not do this. Apart from acknowledging its receipt, the Tribunal made no reference to the report anywhere in its reasons.

The situation is similar in relation to Mr Sivarasa. After the Tribunal hearing, but before its decision, Mr Sivarasa's representative submitted a number of documents relating to the position in Sri Lanka. The Tribunal referred to only one of them in its reasons for decision. This was a Department of Foreign Affairs and Trade ("DFAT") cable dated 15 December 1995, reporting on the situation that occurred after October 1995 LTTE attacks on oil and gas storage installations in Colombo and two November 1995 suicide attacks. The cable included these excerpts:

"Of the security measures taken by the government, it is the sweep and search (or rounding up) patrols and the resulting detentions which have raised some concern among members of the Tamil community. Most Tamils and human rights observers to whom we have spoken acknowledge that the government's response to the very serious LTTE security threat is understandable. But they claim that such operations can cause hardship to innocent Tamil people. They claim that the round up operations do not discriminate sufficiently between likely suspects and obviously innocent persons and that many innocent people are taken in and detained. However, they also acknowledge that the vast majority of persons are only held for a couple of days and then only so long as it takes for identification and bona fides to be established. We have heard almost no recent allegations of ill treatment while in detention, and this is supported by anecdotal evidence. The overall assessment of local and international human rights observers is that while these operations cause inconvenience, and possibly anxiety or even a degree of humiliation, provided they are properly conducted, they do not amount to harassment.

According to police sources, and confirmed by our other contacts, the typical profile of persons who would fall under scrutiny by security forces would be young Tamils from the north or east, but particularly those from the Jaffna Peninsula or LTTE-controlled mainland areas. The main 'tool' authorities use for identification is the national identity card (NIC). When a sweep is conducted, only Tamil people will be stopped for detailed questioning. If a person has an NIC showing a birthplace and/or residence in the north or east they will be asked to explain their presence in Colombo. If they are unable or unwilling to explain their presence in Colombo, or if their explanation is considered implausible, they will be brought to a detention centre for further questioning or to allow relatives or business contacts to establish their bona fides.

In most cases (estimated 90 per cent), people are released within a couple of days. In a small number of cases, people are charged under the Prevention of Terrorism Act (PTA), brought before a magistrate and formally remanded into custody for two weeks. In these cases, the majority are released after the two weeks expire. There are a very small number of persons who are held under the PTA for a longer period. Bail is not granted under the PTA. Under directives issued by the President, police and other security services making detentions are supposed to issue receipts to the next of kin of detainees. However, this procedure does not appear to be followed in practice.

...

In conclusion, our assessment, based on our discussions, is that while Tamils may be more affected than non-Tamils by the security measures in Colombo designed to counter the LTTE security threat, this does not amount to officially-sanctioned discrimination or harassment of Tamil people as a group. Tamil people, like anyone else continue to have the protection of the law against unlawful activities by security services. The government's demonstrated willingness to prosecute members of the security services who breach the law is important here, as is the access detained persons and their families have to the government's own human rights task force (HRTE) and to the International Committee of the Red Cross (ICRC)." (Emphasis added)

The Tribunal made no reference to the Amnesty International Country Report or British Council report, both of which had been put before it by Mr Sivarasa's representative, notwithstanding they provided more recent and more comprehensive descriptions of the situation in Sri Lanka than the DFAT cable.

I need not detail the Tribunal's findings about Mr Sivarasa's claims. Using wording identical to that which she had used in Mr Paramananthan's case, the Tribunal member expressed reservations about the extent of the mistreatment he claimed to have suffered (without explaining the reason for her reservations) but gave him "the benefit of the doubt". She thought the relative shortness of Mr Sivarasa's detentions (two days in February 1995, one week in April 1995, an unspecified period in January 1997, one day in June 1997 and two days in October 1997) indicated he "was not considered a security threat and was therefore of no real interest to the authorities". But this was not the reason she rejected his claim of well-founded fear of persecution. The Tribunal member took that course because the mistreatment was "indiscriminate cruelty" and, moreover, "the evidence suggests that such abuses are no longer as widespread as before". The Tribunal member did not cite any basis for either finding. Instead, she went on:

"Therefore, although the applicant may be subjected to detentions in the foreseeable future as he has been in the past, these detentions do not give rise to a well-founded fear of being persecuted by the authorities for reasons of race, imputed political opinion or any other Convention reason should he return to Sri Lanka."

In other words, although Mr Sivarasa might be detained, beaten and tortured in the future, as in the past, the fact that these would be acts of "indiscriminate cruelty" would mean they would not amount to persecution within the meaning of the Convention. This brings me to the second point.

INDISCRIMINATE CRUELTY

Merkel J sets out the passage in the two reasons for decision in which, in identical terms, the member made the perplexing statement "there is no suggestion that such mistreatment was directed in a discriminatory way towards any particular group such as young Tamil males. Rather, it appears to have been a generalised failure to adhere to basic standards of human rights". The statement is perplexing because (as Burchett J pointed out) there was ample suggestion to that effect; this was a major thrust of both the 1996 Amnesty International Country Report and the British Council Report. It was at least implicit in the claims of each of the applicants for refugee status. Perhaps the member merely meant the mistreatment of young Tamil males was not official government policy. This is consistent with her subsequent statement that the "detentions do not give rise to a well-founded fear of being persecuted by the authorities for reasons of race, imputed political opinion or any other Convention reason should he return to Sri Lanka"; a distinction apparently being made between persecution as an act of government policy and unauthorised persecution by government functionaries (police and army). However, even if there was evidence to support the making of such a distinction - none was cited by the Tribunal - the fact that the persecution was unauthorised would not necessarily take it out of the definition of "persecution" in Article 1A(2) of the Convention. That definition refers to a "well-founded fear of being persecuted for reasons of race" etc but does not specify the identity of the persecutor. It is enough that the government of the relevant country is unable or unwilling to prevent acts of persecution. Brennan CJ expressed this notion in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 when he said at 233 the definition was "speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee's nationality" (emphasis added). In the same case at 257-258 McHugh J said:

"The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality." (Emphasis added)

The material before the Tribunal in the present cases suggested that official Sri Lankan government policy was opposed to mistreatment - by which I mean beatings and torture, as distinct from interrogation - of Tamils held in custody. But there was abundant evidence that such mistreatment occurred. Not only did the Tribunal accept the claims of both these applicants that they had suffered such mistreatment on several occasions, the "country material" suggested this was commonplace. If that was so, it must have been because such treatment of prisoners was "officially tolerated" or, at least, because the authorities were powerless to prevent it. It was insufficient for the Tribunal to brush aside the applicants' claims of mistreatment on the basis that this did not constitute persecution by the authorities.

Nor, I think, was it open to the Tribunal to reject the claim of persecution on the basis that it was merely "indiscriminate cruelty". It is possible non-Tamils held in police or army detention in Sri Lanka are also beaten and tortured. I am not aware of any evidence about this; certainly, the Tribunal made no finding about it. However, even if this is so, the only reason the two applicants for protection came to be in police or army custody was because of their ethnicity and perceived political opinion. They were detained because they were Tamils and suspected of being sympathetic to LTTE. I do not suggest it is an act of persecution, within the meaning of the Convention, for the Sri Lankan police or army to select people for questioning about the LTTE on the basis of their perceived Tamil ethnicity - after all, LTTE is a Tamil nationalist organisation - and to detain them for that purpose for a reasonable time. But the fact that people have been selected for detention on the basis of their ethnicity or perceived political opinion makes it important for a government to ensure there is no abuse of the power of detention. The people who are at risk of "indiscriminate cruelty" have been selected on a basis mentioned in the Convention. McHugh J made the point in Applicant A at 258-259:

"Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race.

However, where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory. It is therefore inherently suspect and requires close scrutiny. In cases coming within the categories of race, religion and nationality, decision-makers should ordinarily have little difficulty in determining whether a sanction constitutes persecution of persons in the relevant category. Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution."

For the above reasons, it was legally incorrect for the Tribunal to reject the claims of Mr Paramananthan and Mr Sivarasa on the ground that the mistreatment they had suffered amounted to "indiscriminate cruelty" falling short of "persecution". In each case, the Tribunal should have entered upon the questions whether there was a causal connection between the cruelty the applicants had suffered and their Tamil ethnicity and/or perceived sympathy for the LTTE and, if so, whether the cruelty was something the Sri Lankan government tolerated or was unable to control. The Tribunal's failure to take this course constituted an error of law involving an incorrect application of the law to the facts as found by the Tribunal, within the meaning of s476(1)(e) of the Migration Act.

ORDERS

I am of the opinion that both matters must be remitted to the Tribunal for further consideration and redetermination. In the case of Mr Sivarasa, Burchett J has already so ordered. I agree with Merkel J that the Minister's appeal in that case should be dismissed with costs. In relation to Mr Paramananthan's appeal, again in agreement with Merkel J, I would allow the appeal, set aside the decision of Davies J and, in lieu thereof, order that the decision of the Tribunal be set aside and the application for a protection visa be further considered and redetermined by the Tribunal. The Minister should pay Mr Paramananthan's costs of the appeal and before Davies J.

LINDGREN J

I have read in draft the Reasons for Judgment of Wilcox J and of Merkel J, which make it both unnecessary for me to state any background and appropriate for me to proceed immediately to give my reasons for concurring in the orders proposed by Merkel J.

I find it sufficient to treat the relevant Convention ground as "well-founded fear of being persecuted for reasons of ... membership of a particular social group...", the particular social group being young Tamil males from LTTE-controlled areas in the north and east of Sri Lanka.

The Tribunal accepted each refugee-claimant or gave him the benefit of the doubt in relation to his claims of arrest, detention, interrogation and mistreatment while in detention.

The following crucial passage occurs in the Tribunal's Reasons in each case:

"[While/Although] mistreatment of persons in detention in Sri Lanka has been well documented by Amnesty and others, there is no suggestion that such mistreatment was directed in a discriminatory way towards any particular group such as young Tamil males. Rather, it appears to have been a generalised failure to adhere to basic standards of human rights. As such, the mistreatment which the applicant suffered during detention cannot be regarded as persecutory in the Convention sense. ... Furthermore, the Tribunal notes the recent improvement in human rights referred to in [certain published material]."

In conclusion, the detentions could not of themselves be regarded as persecutory, but rather as the legitimate enforcement of procedures designed to combat the threat of LTTE terrorism. The mistreatment during the detentions cannot be regarded as appropriately designed to achieve a legitimate end of government policy, but neither would it be persecution in the Convention sense, but rather indiscriminate cruelty. Moreover, the evidence suggests that such abuses are no longer so widespread as before. Therefore, although the applicant may be subjected to detentions in the foreseeable future as he has been in the past, these detentions do not give rise to a well-founded fear of being persecuted by the authorities for reasons of race, imputed political opinion or any other Convention reason should he return to Sri Lanka." (emphasis supplied)

Subject to one inconsequential matter mentioned below, I think that the course of the Tribunal's reasoning in this passage is clear. It depended upon a distinction between detention for questioning and pending the completion of inquiries on the one hand, and mistreatment during detention on the other. The Tribunal regarded the former, although discriminating in its effect against young Tamil males from LTTE-controlled areas, as a permissible procedure of the Sri Lankan authorities for combating LTTE terrorism and not as persecutory conduct. Accordingly, the Tribunal eliminated detention as such from further consideration. The Tribunal properly regarded mistreatment during detention as insupportable, but this left remaining the question whether that mistreatment was for a Convention reason. The "no suggestion" statement was to the effect that there was no material suggesting that young Tamil males were singled out from other detainees for mistreatment. Accordingly, so the Tribunal reasoned, the mistreatment was properly to be regarded as "indiscriminate cruelty" to all detainees, whether Sinhalese or Tamil, within the place of detention. The Tribunal noted "[m]oreover" that such abuses of human rights were not as widespread as they had previously been. In the result, if either of the present refugee-claimants were to return to Sri Lanka, while he might well be detained by the authorities by reason of his membership of the particular social group, young Tamil males from LTTE-controlled areas, this would not be "persecution"; and while he might, in detention, suffer an abuse of his human rights in the form of physical mistreatment (something not as likely to happen as it once was), this would not, so far as the material before the Tribunal revealed, be persecution for reason of his membership of that particular social group.

I do not understand the Tribunal to have said that as a result of the improvement in the situation regarding the abuse of human rights, there is no longer a well-founded fear that, if returned, each refugee-claimant would again be detained and, while detained, suffer an abuse of his human rights of the kind mentioned. The Tribunal's use of the expression "no longer so widespread as before" does not signify a finding that there was no longer a real chance of detention or mistreatment in detention.

The reasoning of the Tribunal gives rise to two issues: first, the particular issue whether the Tribunal was entitled to think that there was "no suggestion" in the material before it that the mistreatment itself was for a Convention reason; second, the general question whether the distinction drawn between detention and mistreatment during detention which underlay the Tribunal's approach led it into error. I will address these questions in turn.

There was material before the Tribunal suggesting that the refugee-claimants were physically mistreated in detention because they were young Tamil males from LTTE-controlled areas. There was material of that kind in a paper of the British Refugee Council, "Protection denied: Sri Lankan Tamils, the Home Office and the forgotten war" dated February 1997, which the refugee-claimants' solicitor had submitted to the Tribunal. As Wilcox J notes, that report was based on a visit to Sri Lanka in December 1996 by two senior officers. In the fifth chapter, "Life in the City", under the heading "5.5 The question of return", the report stated as follows:

"Despite the attempts by the government to promote human rights, the culture within the Sri Lankan security forces remains suspicious of Tamils - in particular young males, although all Tamils, whether male or female, young or old, are at risk. That Tamils should come under suspicion because of the actions of the LTTE is understandable. What is concerning is the continued use of detention without trial, and in contravention of the Emergency Regulations; of torture to extract confessions, often in a language not understood or spoken by the signatory; and of extrajudicial executions which are linked to the security forces. While there has been a systematic reduction in human rights violations, particularly against the Sinhalese population, there continues to be human rights violations in Colombo, particularly against Tamils, which the government appears to be unwilling or unable to prevent. It is for this reason that Colombo should not be assumed to be safe for Sri Lankan Tamils." (emphasis added)

There was evidence before the Tribunal which suggested two possible motivations for the torture of young Tamil males detained by the Sri Lankan security forces: revenge for attacks carried out by the LTTE (Amnesty International, Sri Lanka; Government's response to widespread "disappearances" in Jaffna, November 1997, p 7; Amnesty International, Sri Lanka; Wavering commitment to human rights, August 1996, p 15); and suspicion that detained Tamils were members of the LTTE (British Refugee Council report, p 26; Danish Immigration Service, Report on the fact-finding mission to Sri Lanka, April 1997, p 52; statement of Kirushanthan Paramananthan, 10 October 1997, p 2; Application for a Protection Visa (866) submitted by Vijayakumar Sivarasa on 21 November 1997, answers to questions 39 and 40).

The statement of the Tribunal that "there is no suggestion that such mistreatment was directed in a discriminatory way towards any particular group such as young Tamil males" could mean one of two things: first, that similar treatment is received by any persons detained by the Sri Lankan security forces; or second, that there is similar motivation for the mistreatment of Tamil detainees as for the mistreatment of other detainees.

If the first construction of the "no suggestion" passage is correct, the Tribunal has failed to answer the essential question before it, that is, whether the treatment which young Tamil male detainees in particular receive is motivated by a Convention reason. By failing to address this issue, the Tribunal has failed to make a finding on a material question of fact and so has not observed the procedure which s 430 (1) (c) of the Act required it to observe (cf s 476 (1) (a)). The failure to do so also suggests that the Tribunal incorrectly interpreted the applicable law (s 476 (1) (e)) in that the question before it was not whether other detainees suffer but why Tamil detainees do.

If the second construction of the "no suggestion" passage is correct, the Tribunal has based its decision on a fact that did not exist, namely, that there was "no suggestion" that the treatment suffered by Tamil detainees was motivated by a Convention reason. The evidence referred to above does indeed suggest that those in the security forces who torture persons such as the refugee-claimants do so for reason of one or more of race, membership of a particular social group or imputed political opinion. While it is a matter for the Tribunal to accept or reject that evidence, in this case either it failed to do either, or, if it did reject that evidence, it failed to state its reasons for doing so: see s 430 (1) (b), (c) and (d) of the Act.

In my view, for the above reason both matters should be remitted to the Tribunal.

I turn now to the second and more general issue mentioned above. I do not think that the two-stage approach taken by the Tribunal, at least in the way in which the Tribunal implemented it, was a permissible one. Let it be assumed that these refugee-claimants have a well-founded fear that they would, upon return to Sri Lanka, be detained, and, during detention, be tortured, not because their tormentors wished to persecute young Tamil males from LTTE-controlled areas, but because they derived perverse pleasure from their mistreatment of detainees (whether Sinhalese or Tamil) or because they wished to extract bribes from the friends and relatives of the detainees (whether Sinhalese or Tamil). In such a case, "the authorities" regarded as a whole, would be engaged in persecution for a Convention reason, in my opinion.

This conclusion would flow from the fact that the initial arrest and detention would be on account of membership of a particular social group and from the hypothesised fact that the mistreatment was not the isolated and unforeseeable act of an individual member of the security forces, but was sufficiently common for it to be said that there was a well-founded fear of its occurrence. In such a case, the authorities' otherwise permissible initial act of arrest and detention for questioning and pending completion of inquiries would be coloured by the well-founded fear of the mistreatment to follow. The authorities would be committing the refugee-claimants to a detention during which there was a well-founded fear they would in fact be mistreated.

In the present cases, the refugee-claimants were arrested and detained by the authorities because of their membership of the particular social group, young Tamil males from LTTE-controlled areas. This reason makes suspect the nature and incidents of the detention for questioning and pending completion of inquiries, and makes it incumbent on the authorities to ensure that the detention, on its face non-persecutory, is not made something else by reason of the sufficiently common unauthorised acts of individual members of the security forces. The following passage from the judgment of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258-259, is pertinent:

"Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race.

However, where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory. It is therefore inherently suspect and requires close scrutiny. In cases coming within the categories of race, religion and nationality, decision-makers should ordinarily have little difficulty in determining whether a sanction constitutes persecution of persons in the relevant category. Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution." (references omitted)

The Tribunal was bound to scrutinise the nature of the treatment in detention to which the authorities committed the refugee-claimants, and might again commit them if they were to return to Sri Lanka. It did not do so. This obligation of the Tribunal is not shown to have been discharged by its statements that according to the Amnesty International Country Report: Sri Lanka, 1996, there had been "recent improvement in human rights" and that abuses of human rights in detention "are no longer so widespread as before".

The Tribunal's bifurcation of the experiences of the present refugee-claimants into "detention" and "treatment in detention" led the Tribunal into committing an error of law, being either an incorrect interpretation of the Convention definition of "refugee" or an incorrect application of that definition to the facts as found by it (cf s 476 (1) (e) of the Act). Further, the Tribunal failed to set out its findings on material questions of fact, namely, the questions whether each applicant had a well-founded fear of being detained by the Sri Lankan authorities by reason of his being a young Tamil male from an LTTE-controlled area and, if so, of suffering mistreatment while in detention (cf s 430 (1) (c) of the Act).

For these further reasons, each matter should be remitted to the Tribunal.

MERKEL J

INTRODUCTION

The Court heard two appeals on consecutive days in the above matters. The appeals concern whether two young Tamil male citizens of Sri Lanka, who came from the Jaffna peninsula in northern Sri Lanka, ("the applicants") had a well founded fear of being persecuted for reasons of race (Tamil ethnicity), political opinion (imputed support for or association with the Tamil separatist movement and, in particular, the Liberation Tigers of Tamil Eelan ("the LTTE")) or as members of a particular social group (young displaced Tamil males who had previously resided in the Jaffna peninsula).

Shortly after arrival in Australia each of the applicants lodged an application for a protection visa on the ground that he was a refugee. Each application was refused by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister"). Applications for review of the delegates' decisions refusing the protection visas were heard and determined on different occasions before the same member of the Refugee Review Tribunal ("the RRT") upon substantially similar material. The RRT affirmed the decisions of the delegates refusing each applicant's application for a protection visa, giving a substantially similar decision in each matter.

Applications by the applicants for review of the RRT's decisions under Part 8 of the Migration Act 1958 (Cth) ("the Act") were heard by different judges of the Court.

In the matter the subject of the first appeal, being the application by Vijayakumar Sivarasa ("Sivarasa") for a protection visa, Burchett J set aside the decision of the RRT and remitted the matter to the RRT, differently constituted, for determination according to law. The Minister appealed against the decision to a Full Court.

In the matter the subject of the second appeal, the application by Kirushanthan Paramananthan ("Paramananthan") for a protection visa, Davies J dismissed the application. Paramananthan appealed against the decision to a Full Court.

Although each appeal was heard separately, the main issues were essentially the same, relating to challenges to almost identical passages in the reasons for decision of the RRT in each case and were argued on the basis that the decisions of the respective primary judges were inconsistent and were not capable of being reconciled. Senior counsel for the Minister contended that the decision of Davies J was the correct approach to the issues raised by each appeal, whilst counsel for Sivarasa and Paramananthan contended that the correct approach was that taken by Burchett J.

In each matter the RRT accepted that the applicant for the protection visa, after fleeing Jaffna, had subsequently come to the attention of government authorities because he was a young Tamil man from Jaffna. The "attention" to which the RRT referred was random arrest and detention, during which each applicant was subjected to severe mistreatment including beatings and extortion, and only released after substantial bribes had been paid.

In Sivarasa's case the RRT accepted that, towards the end of 1994, after Sivarasa had fled from the conflict in the north he was arrested and detained in Colombo in June 1995, in February and April 1996 and in January, June and October 1997. The RRT also accepted that on each of the occasions, apart from October 1997, Sivarasa had been severely mistreated by army and police personnel. The "mistreatment" included being chained and beaten and threats made to his life. He had also been forced, on numerous occasions, to pay bribes to obtain his release. The final occasion on which Sivarasa was arrested and detained was in October 1997, shortly before his departure from Sri Lanka. The RRT did not accept the full account of Sivarasa in relation to his detention on that occasion, however, it did accept that following a bomb explosion in the commercial district in Colombo on 14 October, Sivarasa was rounded up and held in detention for two days. Although the RRT did not accept that Sivarasa had been "severely tortured" on that occasion, it appeared to accept that after that arrest and detention Sivarasa informed his aunt, who was visiting Colombo at the time, that he was facing hardship and harassment and was unable to stay in Sri Lanka.

The context in which Sivarasa's arrests and detentions occurred was summarised by Burchett J:

"...what the evidence showed, without contradiction, was that the arrests and detentions were aimed at suppressing the rebellion of a group who were exclusively Tamil, the Liberation Tigers of Tamil Eelam, so that Tamils were targeted. While the LTTE might terrorize others, the applicant's complaint was that he was arrested and detained because he was a Tamil, and tortured in relation to allegations of his involvement in the Tamil political organization, the LTTE."

The RRT identified the respondent's claim for refugee status as follows:

"The applicant claimed that as a young Tamil from Jaffna he will be subjected to further arrest, detention and torture if he were to return to Colombo."

In Paramananthan's case the RRT accepted a similar story of random arrest, detention and severe "mistreatment" after Paramananthan and his family had fled the Jaffna peninsula in 1996. When travelling with his mother on a back road to Colombo, in an endeavour to leave the country, Paramananthan was detained in two transit camps where he was questioned, stripped of his clothes, beaten and tortured until his mother was able to obtain his release upon the payment of money. In Colombo in May 1997, Paramananthan was taken into police custody where he was again severely beaten, making it impossible for him to walk for some time; again he was released after payment of money. Although Paramananthan managed to leave Sri Lanka on 13 September 1997, due to inadequate travel documents, he was returned to Colombo airport on the following day where he was detained by the police for three to four hours and again beaten until he lost consciousness. He was released again after payment of money. A short time later, on 16 September 1997, when Paramananthan was residing in a house where a large cache of LTTE arms had been seized, he and other Tamils were arrested. He was again blindfolded, questioned and beaten. His release was arranged only after payment of money. Paramananthan then left Sri Lanka for Australia via Singapore.

The arrests and detentions experienced by Paramananthan occurred in much the same context as those experienced by Sivarasa. As was said by Davies J in Paramananthan's case:

"In a country such as Sri Lanka, where atrocities and breaches of human rights have occurred with great frequency over many years...the basic objective of the Government is not to persecute persons of the Tamil race but to defend the country against the Tamil Separatists..."

In each case the central issues for determination by the RRT were whether at the time of its decision in the matter it was satisfied that the arrests, detentions and "mistreatment" which the RRT had found had occurred amounted to persecution "for reasons of race,...membership of a particular social group or political opinion" within the meaning of Art 1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("the Convention") and, if so, whether the applicants had a well-founded fear of the recurrence of those, or similar, events if returned to Sri Lanka.

The Convention defines a refugee as 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."

The class of visa to which Sivarasa and Paramananthan claimed to be entitled is that provided for by s 36 of the Migration Act 1958 (Cth) ("the Act"). Section 36 is in the following terms:

"36. (1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

Australia has protection obligations to a person who satisfies the definition of a refugee under the Convention. Section 31 of the Act authorises the making of regulations which prescribe criteria for a visa or visas of a specified class, including protection visas. Section 65 provides for the Minister to grant or refuse to grant a visa if "satisfied" that the criteria for the visa have been satisfied.

Clause 866.221 of Schedule 2 of the Migration Regulations ("cl 866.221") provides that a criteria to be satisfied by the applicant for a protection visa is that at the time of the decision on his or her application:

"The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention."

Under s 415(3) of the Act, the decision of the RRT varying a decision of the Minister (or the delegate of the Minister) is treated as a decision of the Minister.

The subjective nature of the criterion in cl 866.22l, being one of "satisfaction", is of significance when the decision made is the subject of judicial review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272-277. However, in the present appeals the issues raised by the applicants, if established, fall within the area of reviewable error discussed in Wu Shan Liang.

The Minister's submission pinpoints the danger of merely stating the law, albeit accurately, in general terms without regard being had to the varying circumstances in which particular aspects of the law might have to be applied in the case before the RRT. The present case is a good example. It does not follow from a recognition that a "real chance" of persecution can be far less than 50% as a matter of law, that there is an understanding of the process to be followed in determining whether there is a "real chance" of persecution. The correct process as outlined in Wu Shan Liang and Guo requires an assessment of the likelihood of future events based, inter alia, upon the weight given to findings the RRT makes concerning past events. The RRT's decision might be explicable on the basis that the findings as to the past and the future are to be made by reference to some standard of satisfaction or proof, such as a balance of probabilities that enabled the RRT to disregard the material that pointed against its conclusions without rejecting that material or determining that little or no weight was to be given to it. Such an approach would clearly constitute error of law on the part of the RRT.

Further, for the reasons already explained, some of the difficulties in the present appeals have arisen from the failure of the RRT to comply with s 430 in respect of its reasons for decision and "findings" in relation to indiscriminate conduct and the material on which those "findings" were made: see s 430(c) and (d). That failure gives rise to review under s 476(1)(a): see Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414-415, Hughes v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Lee J, 17 September 1998) at 8-9 and Mashallah Kermanioun v Comcare (Federal Court of Australia, Finn J, 20 November 1998) at 2-3.

CONCLUSION

For the above reasons, although slightly different to those expressed by Burchett J, I am satisfied that his Honour arrived at the correct conclusion in Savarasa's case. Accordingly, the appeal against his Honour's decision is to be dismissed with costs. For the same reasons, I am of the view that the appeal by Paramananthan against the decision of Davies J is to be allowed and that the matter be remitted to the RRT, differently constituted, to be determined in accordance with law.

Some doubt, was raised by the decision in Kathiresan v The Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Gray J, 4 March 1998) at 13-14 and 19, as to whether the Court has jurisdiction under s 481(1)(b) of the Act to make an order referring the matter to which the decision relates to the tribunal which made the decision rather than to the individual who made the decision. In particular, Gray J considered that the only "person" to whom the Court could refer the matter was

"the person who constituted the Tribunal which made the decision concerned."

In Minh Quang Nguyen v The Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Merkel J, 16 October 1998) at 12-15 I explained why it was my view that, when the context, scope and purpose of s 481(1) of the Act is considered, it is apparent that the "person" to whom the matter may be remitted is a reference to the Immigration Review Tribunal, the RRT or any other person who has made a decision under the Act or regulations relating to visas. In my view, the order made by Burchett J and the one which I propose be made in respect to the appeal by Davies J remitting the matters to the RRT, differently constituted, is an order authorised by s 481(1) of the Act and is appropriate in cases such as the present. Accordingly, for the above reasons in my view the orders that are appropriate are:

1. In Sivarasa's case - the appeal be dismissed with costs;

   2. In Paramananthan's case - the appeal be allowed, the order of Davies J made 15 May 1998 be set aside and in lieu thereof it be ordered that the decision of the RRT be set aside and the matter be remitted to the RRT, differently constituted, for determination accordingly to law. The Minister is to pay Paramananthan's costs of the application before Davies J and of the appeal.