Paramasivan, Veeravagu v Minister for Immigration and Multicultural Affairs

[1998] FCA 192

FEDERAL COURT OF AUSTRALIA

Migration - application for review of a decision of the Refugee Review Tribunal that the applicant is not a refugee - whether the Tribunal erred as to the reasonableness of the applicant relocating to Colombo - whether the Tribunal failed to observe procedures it was bound by law to observe - whether the Tribunal failed to properly and adequately consider documents before it - whether an implicit statutory obligation exists upon the Tribunal requiring that all information be given genuine and realistic consideration - whether the Tribunal’s findings of fact were unreasonable in the Wednesbury sense - whether the Tribunal’s decision was based upon facts which did not exist.

Migration Act 1958

VEERAVAGU PARAMASIVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. NG 908 OF 1997

JUDGE:	BEAUMONT J.
DATE:	13 FEBRUARY 1998
PLACE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 908  of   1997

BETWEEN:	VEERAVAGU PARAMASIVAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		BEAUMONT J.
DATE OF ORDER:		13 FEBRUARY 1998
WHERE MADE:		SYDNEY

ORDERS:

1. Application dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 908 of 1997

BETWEEN:	VEERAVAGU PARAMASIVAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J.
DATE:	13 FEBRUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

Before the Court is an application for an order of review of a decision of the Refugee Review Tribunal (“the Tribunal”) that the applicant is not a refugee.  The grounds of the amended application are four in number.  They have been developed in the applicant's outline of submissions and in oral argument.  It is convenient to deal with them in turn. 

The first ground is that it is claimed that the decision involved -

“... an error in the interpretation and application of the law as to the reasonableness of the applicant relocating to Colombo in Sri Lanka.”

The particulars of this ground, as stated in the amended application, are that the Tribunal -

“... failed to properly consider whether the applicant could reasonably be expected to relocate to Colombo and in particular failed to consider the practical realities facing the applicant in supporting himself and obtaining the necessities of life in Colombo.”

On the face of it, this ground appears to be a challenge to a finding of fact, albeit a secondary fact, made by the Tribunal.  Such a challenge is not, of course, available as a matter of jurisdiction in an application for a judicial review. 

However, in the applicant's written outline of submission, it was claimed that the Tribunal -

“... effectively misunderstood the true nature of its task and therefore misinterpreted the law.”

This submission should also be rejected.  In my opinion, the Tribunal properly stated the well established legal principles in this area and purported to apply them.  (See, as to those principles in particular, Randhawa v Minister for Immigration (1994) 52 FCR 437). It would, of course, be a ground for intervention by the Court if I were satisfied that there had been a constructive failure by the Tribunal to exercise its jurisdiction, but there is no room for such a suggestion here. Not only did the Tribunal correctly state the relevant legal principles in this area, but it purported to apply them after having embarked upon a full and detailed analysis of the considerable body of material placed before it.

On behalf of the applicant this ground of appeal was sought to be developed in oral submissions by pointing to what were claimed to be faulty steps taken by the Tribunal in its process of reasoning on the facts.  Again, it is clear that such matters are not within the jurisdiction of this Court to embark upon in the exercise of its judicial power.  These are factual matters and indeed, in this particular instance, were not even findings of ultimate or secondary fact.  They were no more than references made by the Tribunal in the course of arriving at its conclusion that, in its opinion, the applicant was not a refugee.  There can be no suggestion of any constructive failure to exercise jurisdiction, or of any failure to address the correct legal question, in my view.

The second ground of the application is that the Tribunal -

“... erred in law and/or failed to observe procedures that it was bound by law to observe in connection with the making of the decision.”

It may be accepted at once that if such a claim were made out, this Court would have jurisdiction to intervene by way of judicial review.  However, in order to understand this ground it is necessary to refer to the particulars given, which were three in number. 

The first particular alleged is that the Tribunal -

“... failed to properly and adequately consider documents that it had obtained under section 425(1)(b) Migration Act being...”

Three documents are then mentioned.  The first is a report of the Danish Immigration Service, the second is a cable from the DFAT, and the third is a report of the DIRB.   It is then said in this particular that the Tribunal -

“... had therefore failed to fulfil its obligations under s 425(1)(b) of the Migration Act, failed to provide a mechanism for review that was fair and just, and failed to act in accordance with substantial justice and the merits of the case.

In my opinion, these particulars cannot amount to a ground for judicial review. 

It is true that the documents mentioned were available to the Tribunal.  In the course of its reasons the Tribunal said that it -

“... took into account all the written materials provided by the applicant, being the material upon the file of the Department, the Tribunal's file and the evidence put at the hearing by the applicant.”

As has been seen, the contention now made on behalf of the applicant is that the Tribunal failed to "properly and adequately consider" the three documents mentioned.  Again, I cannot see this as a basis for this Court to enter upon the matter, as a matter of jurisdiction.  What weight, as a matter of fact, should be attributed to the information in any of the documents before it was necessarily a matter for the Tribunal to judge.  As factual matters, they are simply not within this Court's jurisdiction.

In the applicant's written outline of submissions in support of this ground, the argument was developed in the form of a submission that there was an implicit statutory obligation upon the Tribunal that all the information before it "should be given genuine and realistic consideration".  It may be accepted, as has already been noted, that a constructive failure to exercise jurisdiction, or a failure to address the correct legal question, could warrant the grant of judicial review.  When it is said, or at least suggested, that the Tribunal had failed to give "genuine and realistic consideration" to all or some of the information before it, it may be that the contention amounts to a claim of a constructive failure to exercise jurisdiction, or a failure to address the correct legal question.  It will then be a question of fact, upon a consideration of the circumstances of a particular case, whether there has been any such failure.  But I do not see any basis for such a suggestion here. 

If, on the other hand, a contention that there has been a failure to give "genuine and realistic consideration" does not mean this, it is necessary, I think, to identify with some care the exact nature of the submission.  I would, of course, accept that the Tribunal must be "genuine" in its dealing with any matter.  Sham conduct or conduct that is dishonest on the part of a decision-maker would always warrant the grant of judicial review.  So far as the present case is concerned, any such suggestion is quite without merit or substance.

So far as the giving of "realistic" consideration to information is concerned, there is, in my opinion, a danger that the use of those words could be confused with a submission that the Court should intervene because the Tribunal has failed to give due weight to a particular consideration. That of course is not a ground for judicial review. It is settled law that there is no basis for judicial review if the error is of a factual kind, even if the conclusion is arrived at by the employment of faulty or illogical reasoning. This is not to say that a citizen making such a claim is entirely without remedy in other quarters. There may well be a case for further executive consideration of the matter, or for the intervention of the Ombudsman. But so far as the distinct question of judicial intervention under Chapter Three of the Constitution is concerned, there is no jurisdiction to intervene in factual matters, even if it be thought that the conclusion lacked logic or was not "realistic".

This ground was also sought to be further developed in oral argument on behalf of the applicant.  Again, in my view, it amounted to an attempt to agitate, not merely the findings of ultimate fact, but at the most, steps taken by the Tribunal in the process of its reasoning.  There can be no jurisdiction for this Court to enter into such matters.

The second particular is that the Tribunal -

“... failed to consider information submitted to it and which form[ed] part of the Tribunal file, as follows...”

There are then specified 10 documents, mainly in the form of newspaper articles describing the situation in Sri Lanka.  In my opinion, this particular is without substance.  I have already noted that the Tribunal stated in its reasons that it had considered all the material. 

The third particular of this ground is that the Tribunal -

“... misconstrued or misinterpreted evidence given by the applicant, and then drew adverse conclusions on credibility from such misinterpretations as follows...”

And there are then set out three further particulars of this claim.  The first sub-particular identified evidence given by the applicant as to the circumstances in which the applicant came to report to the police in Colombo in the course of his visit there on a particular occasion.  Again, this is an example of an attempt to challenge a factual conclusion which is no more than a step taken in the Tribunal's reasoning process. 

The second sub-particular of this part of the second ground of the application seeks, in my view, to re-agitate findings made by the Tribunal in connection with an incident in which moneys were paid to the police either by the applicant or on his behalf in order to secure his release.  Again, for the reasons given previously, this is not a basis for a claim for a judicial review.

Finally, on this branch of the argument, the applicant seeks to challenge conclusions of fact arrived at by the Tribunal in connection with the circumstances surrounding the making by the applicant of his travel arrangements on the occasion on which he travelled from Colombo to Australia.  Indeed, in this branch of the argument the applicant describes these conclusions as "conclusions of fact".  It must follow that there is no jurisdiction in this regard.

In the course of the applicant’s oral argument in support of this ground, it was suggested that the findings of fact made were "unreasonable in the “Wednesbury” sense specifically".  The same submission was put on behalf of the applicant in his written outline of submission.  Even if I were to assume in the applicant's favour that there is jurisdiction in this Court now to intervene on “Wednesbury” grounds, there is no merit or substance in such a claim in the present circumstances.

There was, as has been mentioned already, a considerable body of material before the Tribunal.  It is clear beyond question that the Tribunal's decision was open to it on the information available.  There can be no warrant in any suggestion that the Tribunal's decision was “perverse” in the “Wednesbury” sense. 

The third ground of the application is that the Tribunal -

“... erred in the interpretation and application of the law, or alternatively failed to follow procedures which were required by the Act to be observed in that it failed to comply with section 430 of the Act.”

Again, it may be accepted that, if failures of this kind had been demonstrated, the Court would have jurisdiction to intervene.  There are three particulars given of this ground and they need to be considered separately.  The first is that the Tribunal -

“... failed to give an evaluation of conflicting evidence regarding the human rights situations for Tamils in Colombo.”

In my opinion, this is no more than a claim that the Tribunal, in substance, failed to give proper weight to some of the evidence before it.  This is clearly a factual matter, in respect of which the Court has no jurisdiction to intervene. 

The second particular of this ground is that the Tribunal -

“... failed to refer to the evidence or other material on which it relied in stating that, ‘Notwithstanding the existence of widespread corruption in Sri Lanka it is improbable that the authorities would permit the applicant to leave Sri Lanka if they had any interest in him’.”

This is clearly part of the Tribunal's process of reasoning but again it is, equally clearly, a matter of fact and of the weight of evidence.  There is simply no legal ground for this Court to intervene on this account.  Insofar as it is suggested that the Tribunal failed to give proper reasons for its decision, the submission must be rejected.  As I have indicated, the Tribunal’s reasons for its decision were full and they dealt in detail with the relevant material before it.  The next particular of this ground is that the Tribunal -

“... failed to refer to the evidence or other material on which it relied, and failed to refer to or evaluate the applicant's evidence in reaching a finding that, ‘... a check of [the applicant's] employment history [by the police in Colombo] would only confirm his anti LTTE stance’”.

In my opinion, this particular is, in substance, of the same character as the previous particular.  I would reject it for the same reasons. 

The fourth ground of the amended application is that there was -

“... no evidence or other material to justify the making of the decision.”

Again, if this claim could be sustained in the present circumstances there would be jurisdiction to intervene.  However, in my view, the particulars given do not justify any such conclusion. 

The first particular is that the Tribunal -

“... based its decision on conclusions of fact that the applicant failed to attempt to fulfil registration requirements in Colombo, and was eventually picked up by the police, and those facts did not exist.”

Even assuming that it could be said that the Tribunal's decision was "based on" these findings of fact, it has not been positively proved that the facts, as found by the Tribunal, did not exist as is required by s 476(4)(b) (see Szelagowicz v Stocker (1994) 35 ALD 16 (at 22)). However, as I have mentioned in another context, the matter now relied upon on behalf of the applicant is no more than one of many steps in the process of reasoning. It cannot, in my view, be said that the Tribunal’s decision was "based on" such matters.

The further particulars of this ground sought to pick up the previous claims made on behalf of the applicant, already mentioned, with respect to dealings with the landlord and with respect to his travel arrangements.  Again, these claims are questions of fact and, indeed, no more than steps in the process of the Tribunal’s reasoning in respect of which this Court has no jurisdiction to intervene. 

For those reasons, therefore, the application will be dismissed.

ORDERS
Application dismissed with costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:             13 February 1998

Solicitor for the Applicant:	McDonells
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 February 1998
Date of Judgment:	13 February 1998