Premalal v Minister for Immigration

No judgment structure available for this case.

Re: RIENZIE PATRICK PREMALAL KEKULUTOTUWAGE DON
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G 582 of 1992
FED No. 122
Number of pages - 67
Administrative Law - Judicial Review - Immigration
(1993) 41 FCR 117
(1993) 31 ALD 339 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Administrative Law - Judicial Review - natural justice - legitimate expectations - whether irrelevant matters taken into account when relevant facts lead to unjustified conclusions -unreasonableness within Wednesbury principles - consideration of international treaties on human rights - decision correct but for wrong reasons

Immigration - determination of refugee status - decision that no well founded fear of persecution - ample objective grounds for such fear - effect on decision of credibility of applicant

Administrative Decisions (Judicial Review) Act ss 5(1)(a) and (e), 5(2)(a), (b) and (g), 6(2)(g)

International Covenant on Civil and Political Rights Articles 1, 6(1), 7, 9, 10, 19, 25, 26

Chow Hung Ching v. The King (1948) 77 CLR 449

Parramatta City Council v. Purcell (1973) 128 CLR 305

Salemi v. McKellar (No. 2) (1977) 137 CLR 396

Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487

Kioa v. Minister for Immigration, Local Government and Ethnic Affairs (1985) 159 CLR 550

Minister for Aboriginal Affairs v. Peko Wallsend Limited (1986) 162 CLR 24

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

Attorney General (NSW) v. Quin (1990) 170 CLR 1

Mabo v. The State of Queensland (1992) 175 CLR 1

Brunetto v. Collector of Customs (1984) 4 FCR 92

Prasad v. Minister for Immigration, Local Government and Ethnic Affairs (1985) 6 FCR 155

Gunaleela and Ors v. Minister for Immigration, Local Government and Ethnic Affairs and Ors (1987) 14 FCR 591

Gogod v. Lawton (1982) 42 ALR 117

Luu v. Renevier (1989) 91 ALR 39

Capital Television Pty Ltd v. Commonwealth (No. 2) (1992) 108 ALR 577

Nationwide News Pty Ltd v. Wills (1992) 108 ALR 681

Dietrich v. The Queen (1992) 109 ALR 385

Nashua Australia Pty Limited v. Channon (1981) 58 FLR 325

Akpan v. Minister for Immigration, Local Government and Ethnic Affairs (1982) 58 FLR 47

Ruangrong v. Minister for Immigration, Local Government and Ethnic Affairs (1988) 14 ALD 773

Minister of State for Immigration, Local Government and Ethnic Affairs v. Pashmforoosh and Anor (1989) 18 ALD 77

Detsongjarus v. Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 139

Independent FM Radio Pty Limited v. Australian Broadcasting Tribunal (1989) 3 BR 458

Associated Provincial Picture Houses Limited v. Wednesbury Corporation (1948) 1 KB 223

Council of Civil Service v. Minister for the Civil Service (1984) 3 All ER 935

Minister for Foreign Affairs v. Magno Full Court of the Federal Court unreported 26 November 1992

Soo v. Tuchin Beaumont J. unreported 30 April 1986

Woudneh v. Minister for Immigration, Local Government and Ethnic Affairs Gray J. unreported 16 September 1988

Dibo v. Minister for Community Services and Health Einfeld J. unreported 18 March 1992

M. Allars: Introduction to Australian Administrative Law

Dworkin: Taking Rights Seriously 1986 (ch 4) Galligan: Discretionary Powers 1986

Guy S Goodwin-Grill: The Refugee and International Law, Clarendon Press, Oxford 1983

Joel and Lester: Beyond Wednesbury: Substantive Principles of Administrative Law (1987) Public Law 368

Lord Scarman: The Development of Administrative Law: Obstacles and Opportunities (1990) Public Law 490

Centre for the Independence of Judges and Lawyers of the International Commission of Jurists (Reed Brody): Attacks on Justice - Harassment and Persecution of Judges and Lawyers, June 1990 to May 1991

HEARING

SYDNEY, 16 September 1992

#DATE 10:3:1993

Counsel and solicitor : Ms H G Murrel instructed
for the applicant Ms Lisa Hunt (Legal Aid)

Counsel and solicitor : Mr P Roberts instructed by
for the respondent Australian Government

Solicitor

ORDER

The Court orders:

1. Application dismissed.

2. Each party to pay his own costs.

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

JUDGE1

EINFELD J. This is an application for judicial review of a decision of the respondent on 13 August 1992, made by a departmental officer Mr M Paterson as the respondent Minister's delegate, to refuse the applicant's application for refugee status and deport him from Australia. There was an earlier decision handed down by an officer of the department named Baker as delegate on 1 October 1991 which is relevant to but is not the subject of this application.

The applicant, who is known as Rienzie or Patrick Premalal, is a 30 year old man of Sri Lankan nationality, citizenship and habitual residence. He appears to be a man of high academic standing, having obtained among other things a Bachelor of Science degree in public administration (honours level) from a Sri Lankan university. He also passed his licentiate examinations at a Sri Lankan institute of chartered accounting. From 1981 to 1991 the applicant held various positions as lecturer at several tertiary institutions within Sri Lanka. He has also written several books on accountancy and on other subjects, published in Sri Lanka. From 1978 to 1991 the applicant was active in Sri Lankan politics and has on several occasions been outspoken against the government.
On 22 July 1991 the applicant arrived in Sydney from Jakarta, Indonesia on a visitor's visa. He was accompanied by a business associate, Mr Perera. Both Mr Perera and the applicant were interviewed by a migration inspector on arrival. There is no evidence as to what happened to Mr Perera but the applicant told the inspector that he and Mr Perera were in Australia on behalf of a Japanese business man, Mr Oiae. He said that he was a management executive who was hired by Mr Oiae to purchase a large hotel in Australia and that Mr Oiae would be joining them in several days time. He also stated that a company called Transact would provide accommodation for him. However, the applicant only had $420 cash on him.
Apparently the immigration officer did not entirely believe the applicant's story and proceeded to obtain certain information about him. The applicant's visa obtained in Jakarta was checked and found to be a tourist visa which prohibited employment or any engagement in business. Transact was also contacted. It stated that it never had an intention to provide accommodation for the applicant. However, the applicant had made enquiries from Indonesia about Australian property and the company had faxed certain information to him. It had also provided an invitation to the applicant (although without sponsorship) to come to Australia. It was also found that the applicant had an open ticket to Noumea and Japan without having a visa for those destinations.
The applicant's luggage was found to contain certificates, references and contacts in Australia, and blank letterheads from various companies. Also found was a letter to Mr Senaka Weeraratna who worked for a firm of solicitors and barristers named Wilder Moses Bengasino of 233 Cardigan Street, Carlton, Victoria. The letter stated that the applicant would like to follow an MBA program at an Australian university.
Another document which seems to have weighed heavily on the immigration officer's mind was a letter written by the applicant to his wife. In a report of 25 July 1991, the immigration officer extracted three sentences from a translation of this letter (sic):

If I go to Australia first, I can spend a month or two there and try and get a permanent visa and then leave for Japan and do a job there, then get back to Australia and sponsor you all.

For you and daughter, if you are looking at staying permanently Australia is more suitable. Either on your shelf in your room or my room a pink file with Australian law papers are held.

These three statements clearly indicated to the immigration officer that the applicant had "different ideas" upon arriving in Australia. I take this to be a finding that the applicant did not intend to transact business in Australia but intended to apply for permanent residency. It appears that this letter and other statements seen as inconsistent by the immigration officer caused him to assess the applicant as other than bona fide and to refuse him entry to Australia.
The applicant was then detained under section 89 of the Migration Act and placed in the Villawood detention centre. Whilst in the detention centre, the applicant, then apparently without legal assistance or advice, applied for refugee status on 16 August 1991. The application form stated in summary that:

. the applicant belonged to a Sri Lankan opposition party, the Sri Lanka Majana Party (SLMP), from 1984 onwards . he received his membership card for the SLMP in 1987 . he actively supported the SLMP by, amongst other things, publishing pro-party handbills, giving financial support, and being part of a members' action committee . the party's platform was democratic and its main objective was to finish the Sinhalese/Tamil war.

The applicant also stated that the party in government, the United National Party (UNP), had since 1977 had a fascist political policy and was non-democratic. He said that government forces and Sinhalese guerillas (known as JVP) had murdered more than 100 members of the SLMP, including the national leader of the SLMP, Mr Kumaratunge, who was murdered in 1988. The Government had refused a parliamentary debate on extra-judicial killings, disappearances and detentions without trial.
The applicant said that he himself was a "well known" supporter of opposition parties from 1980-1. From 1980-4 he had actively supported the Sri Lankan Freedom Party (SLFP); from 1984-9 he had actively supported the SLMP; and from 1989-91 he actively supported the Opposition Front which consisted of a coalition of anti-government groups. Among his political activities was the distribution during election times of a large number of leaflets in support of the SLMP which contained his name and address.
The applicant said that the JVP was banned in 1986, after which members of the JVP tried to kill UNP politicians and government supporters. In 1988 the JVP also began to kill SLFP members. In addition, the tension between the JVP and the UNP was such that the government instituted an all out campaign to kill JVP members. It appointed special "hit squads" which killed large numbers of "innocent young students, politicians, teachers, lawyers, journalists, farmers and labourers". The applicant also alleged that "nowadays UNP government tries to keep the power in Sri Lanka fearing, kidnapping and killing the opposition politicians".
The applicant alleged that there have been several consequences of his political involvement. The principal consequences are:

1. Arrest and detention

On one occasion he was detained and questioned for a period of 4-5 hours by the UNP authorities. He was interrogated about his political activities, and warned to stop speaking publicly and engage in public political activity. He was questioned about and admitted his financial support for opposition political parties. He was told that the political activities in which he was engaged would affect his future life. Offensive language was used against him and he was hit on the ear, an injury which later resulted in hearing problems. He had a strong suspicion that if people had not witnessed his arrest, he would never have been released, the implication being that he would have been killed.

2. Discrimination or denial of rights

The applicant claimed that a government job had been denied to him because of his political activities. This occurred when he applied for a job for which an approval by a member of parliament was needed. One member opposed the applicant's appointment on the basis that he was an opposition party supporter.

3. Attendance at house by security forces On 13 January 1989, what the applicant refers to as a "killing squad" came to his house and asked for him. Whilst he escaped through the back door, his wife told the armed squad that the applicant was not at home. At the time of this incident, the applicant stated, night shootings were normal. He suspected the killing squad to be a JVP group or perhaps a special squad of the UNP.

After this incident the applicant went into hiding before deciding to go to Japan on a business visa. It was there that he met Mr Oiae. Some months later, the applicant was met in Singapore by his wife who told him of the death of a friend, Mr Norman Pillaraja, who is suspected to have been kidnapped and then killed by government forces or supporters. A little time later, as his daughter was still in Sri Lanka, the applicant decided to go back and visit her. However, he lived at other accommodation to escape the death squads and/or security forces.

4. Search of house while overseas

While he was in Japan, government forces searched his house in Sri Lanka.

5. Other associations

Early in 1991 large killing campaigns were launched by the UNP. The applicant said that the "organisation of missing and kidnapped peoples, parents and children" campaigned against the killings. He was a member of that organisation which became targeted by government forces.

6. Interrogation

On 5 March 1991 he was questioned by what he believed to be a special squad wearing civilian clothes but armed. He was forced to get into a jeep and was driven for 40-45 minutes to a country house. Upon arrival he was asked about his political activities and memberships. Specifically he was asked about his political lectures in Gaul, a suburb of Colombo, especially a speech he had made at Gaul town hall in December 1990 criticising the economic and security policies of the UNP government. Members of the squad also questioned him about Mr D. Munasinghe, a friend of his who, like the applicant, was a lecturer and an opposition party member. It was suspected that Mr Munasinghe had been killed by forces of the UNP government and the applicant's questioners laughed about Mr Munasinghe in such a way as to suggest that he had been killed. The applicant said that this killing had been confirmed by a magazine called Vivinda which listed Mr Munasinghe's name as one of those killed by a government special squad. The applicant was told by his interrogators that if he did not stop his campaign against the UNP, they would "send you to the place where your friends are living". The applicant interpreted that statement as a death threat.

After this interrogation the applicant became increasingly aware of the danger and decided to leave Sri Lanka. While his intention in coming to Australia was also to do an MBA course and to learn the Japanese language, the applicant's primary reason for claiming refugee status is fear for his life. His claim is that if he is returned to Sri Lanka, he will become an object, indeed a victim, of the long campaign of terror launched by the UNP government which has been especially severe against activists who have protested against the government. He alleges that the Deputy Minister of Foreign Affairs has appointed agents to get information about anti-UNP politicians and that the Minister knows the applicant personally as one of his constituents and a prominent opposition political figure.
The applicant explains his lack of documents on arrival in Sydney as caused by his fear that such documents could be discovered when he was leaving Colombo airport. In answer generally to other questions in the refugee status forms, the applicant said that:

. he is in contact with family members at home . he has not been back to Sri Lanka since this application . he intends to remain in Australia for four years . he has never been required to undertake military service in Sri Lanka

. he has never suffered confiscation/destruction of his property . he has never suffered as the result of membership of a social group

. he has never suffered as a result of his Roman Catholic religion . he has never suffered as a result of race or ethnicity . he has never suffered torture or mental or physical mistreatment, other than the assault mentioned earlier. . he had no difficulty in obtaining a passport, did not pay any extra money to get it, and legally left Sri Lanka.

On 1 October 1991 the respondent's delegate, Mr Fred Baker, made a decision to refuse refugee status to the applicant. Although Mr Baker's decision is not subject to present review, it is necessary, in order to understand Mr Paterson's later decision, to give it some consideration. The decision was based on the following documents:

1. Application for refugee status received on 30 August 1991

2. Certified copies of a passport and visa

3. Copy of applicant's Bachelor of Science degree

4. A letter from Wilder Moses Bengasino (Solicitors and Barristers) providing immigration advice

5. The letter from the applicant that he wished to attend an MBA program

6. A reference from a Jakarta company indicating that the applicant successfully undertook a three months' management training program from April 1981

7. An invitation from Mizog Trading Company in Japan of 12 June 1991 inviting the applicant to discuss business with them

8. The translated letter from the applicant to his wife in Sri Lanka dated 4 July 1991 referred to by the immigration inspector

9. Copy of the immigration inspector's report dated 25 July 1991

10. Comments from the Australian office of the United Nations High

Commissioner for Refugees (UNHCR) on a draft departmental assessment of 23 September 1991. The draft assessment was not placed in evidence but the report of the UNHCR dated 1 October 1991 sufficiently identifies its contents.

Mr Baker purported to apply the test for refugee status laid down by the High Court in Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, i.e. whether there is a real chance that the applicant will be persecuted if he returns to his country of nationality.
Officer Baker accepted as facts:

1. that the applicant was from 1988-91 a member of various opposition parties as stated in his application for refugee status;

2. that the applicant published various handbills on their behalf and donated money to them;

3. that due to conflicts between the UNP, JVP and other groups, many innocent victims such as young politicians, lawyers, students and others have been killed.

However, he concluded that because these persons were not the "intended" targets, the applicant, not being a member of the JVP or UNP, did not face persecution in the relevant sense of the term. This apparently extraordinary conclusion contained in paragraph 7 (page 5) of the delegate's report, is set out in full:

The applicant claims that the UNP kill opposition politicians and while their special squad seeks JVP members, they wrongly kill many young politicians, university students, teachers, lawyers, journalists, farmers and labourers.

From late 1988 to early 1989 there were conflicts between Sri Lankan security forces and the JVP, as the Sri Lankan government mounted an intensive anti-JVP campaign. I also accept that a number of innocent victims resulted from this conflict. However, I find that it was members of the security forces and their families on the one hand and the JVP members on the other, who were the intended targets and not members of other opposition parties. I therefore conclude that during the anti-JVP campaign of 1988-89, the applicant has not established that he faced persecution for being a member of an opposition party in Sri Lanka.

The delegate also found that the applicant did not suffer persecution in regard to employment. The sole apparent basis for this decision was that the applicant was able to continue as a lecturer and suffered no periods of unemployment. Mr Baker did not expressly find that the applicant was denied the government job, although from the tenour of his words, it seems that he did accept the applicant's evidence on that claim. The delegate's conclusion therefore must be that even though the applicant was denied a government job because of his political affiliations, his actual employment as lecturer meant that no persecution existed or was likely.
At paragraph 9 (page 6) of Mr Baker's decision, the applicant's evidence as to the search of his house conducted on 13 January 1989 was accepted in full. However, the delegate did not accept that this incident qualified the applicant as a political refugee. It did not amount to individual persecution under the terms of the 1951 Geneva Convention relating to the status of refugees to which Australia is a signatory because the applicant had not demonstrated that his opposition to the government would have caused the government forces to have a politically motivated interest in him.
Mr Baker's findings may be summarised in this way:

1. Even though it was accepted that the applicant's house was searched while he was overseas in 1989, the delegate's view was that because the house was not searched again, and nothing illegal was found in the house, there were no and no grounds for particular interest in the applicant.

2. It was accepted that the applicant was questioned and assaulted on 5 March 1991. However, the delegate concluded that this was localised to the particular region and that it was not demonstrated that this political persecution would also occur in Colombo.

3. This conclusion apparently arose from a US State Department report in 1989 which stated that the opposition parties "function freely". What "freely" means in this context is to my mind a point of some conjecture. The conclusion from this US report was that support of opposition parties would not of itself lead to persecution. As I have not seen the report, I can make no comment on whether the conclusion was open.

4. The delegate considered that the conclusion was further strengthened by a report of the International Committee of the Red Cross that the situation in Sri Lanka continues to improve, whatever that means in the present context, and that security forces are co-operating with the Red Cross. However, the delegate quoted from the report that "some ill-treatment of detainees appears to be declining and that some soldiers guilty of indiscriminate killing have been arrested" (my underlining). Apparently it was not the view of the Red Cross that the indiscriminate killing had stopped entirely, nor that all of the murderous soldiers had been arrested. Further, the fact that the ill-treatment of detainees seemed to be declining can suggest nothing but that ill-treatment of detainees continued to take place.

5. At paragraph 14 (page 7) of the decision, delegate Baker did not accept the applicant's claim that the Sri Lankan government had refused opposition demands to debate the extra-judicial killings and detentions in parliament. The words of this finding were: "I find that this claim does not accord with the facts." It is not clear to what facts the delegate here was referring, his only explicit reference being to a Sydney Morning Herald article of 17 June 1991 stating that an inquiry had been ordered. I presume that the delegate was of the view that the ordering of this enquiry was a "fact" pointing against the applicant's assertion that the debate in parliament had not taken place. This conclusion did not have to be and should not have been made on implication. The existence of demands for, and the holding or non-holding of, a debate could easily have been definitively proved.

6. Officer Baker did not accept the applicant's claim that the UNP is fascist because elections had been free since 1977 and opposition parties were not excluded from participating in elections. His conclusion was: "I therefore find that the ruling UNP party is democratic in form." To me that finding raises at least as many questions as it answers. The "forms" of democracy do not exclude the possibility of brutal authoritarian rule. It may well be that the failure to hold a parliamentary debate on a matter of major importance to the nation establishes or tends to establish that the system was fundamentally undemocratic in practice, whatever its form.

Although delegate Baker strongly rejected the UNHCR's description of the Sri Lankan parliament as non-democratic because the Sri Lankan government had killed or acquiesced in killing political opponents without parliamentary sanction, the emphasis he placed on the generally democratic nature of the UNP seems to have been heavily influenced by the UNHCR's other comments on the draft decision of 23 September 1991. Basically the views and recommendations by the UNHCR seem to have been accepted. As one example, the UNHCR report had mentioned the department's error in concluding that the JVP had been completely crushed and posed no threat. As the JVP was not mentioned in the delegate's decision, it seems that he adopted the UNHCR's advice in this respect. Another example is the adoption by the delegate, in relation to the incident on 5 March 1991, of the UNHCR's agreement with the applicant's claim of persecution in Gaul as well as its unwillingness to conclude that this would affect him in Colombo.
The UNHCR's view that the applicant is not a refugee was of course fully endorsed. The conclusion of the delegate was that although the applicant would face the same dangers and difficulties encountered by all Sri Lankans at the present time, he personally "does not have a real chance of persecution should he return to Sri Lanka. His fear of persecution is therefore not well founded."
A letter dated 1 October 1991 was sent to the applicant by the respondent's department informing him that his application had been refused and pointing out that he had 28 days to seek review of the decision. On 1 November 1991 review by the Refugee Status Review Committee (RSRC) was sought. Submissions to the following effect were taken from four bodies or individuals:

1. The office of the UNHCR recommended refusal of refugee status.

2. The community representative recommended that refugee status be granted on the basis that:

(a) Mr Premalal had been politically active and had a political profile

(b) members of the SLFP had been the target of assassinations and arrests by successive UNP governments and that the present government's policies had increased the probability of such target assassinations

(c) it was quite possible that the JVP may re-emerge as a political force further increasing the danger to Mr Premalal

(d) a current split in the UNP ranks was a further danger to Mr Premalal

3. The Attorney General's Department also approved the application, but on the very summary ground that there was no reason to doubt the veracity of the applicant's claims and his political profile made his fear of persecution well founded.

4. The Department of Immigration recommended a refusal of refugee status, largely on two grounds:

(a) that the applicant supported recognised political parties, the members of which were free to express their opinions against the ruling party without being subject to persecution

(b) that the authorities, not having come across any evidence of JVP involvement by the applicant, would have no reason to persecute him and therefore his fear of being persecuted by the ruling UNP was not well founded The previous view of the department that the JVP had been "crushed" and posed no threat was replaced by an assertion that "the JVP is no longer a formidable force in Sri Lanka". Presumably this meant that even if it did pose a threat, the threat was not realisable because of the organisation's small membership. However, the submission went further to state that even though the visit to the applicant's home in 1989 may have had the intention of preventing him from campaigning for the parties he supported, this did not substantiate a claim of persecution by the JVP.

This reason seems to be a misunderstanding of Mr Premalal's claim. He did not suggest that the intention of the JVP was to prevent him from supporting the parties which he supported but to kill him. Surprisingly, fear of death was not mentioned by the Immigration Department in its recommendation. Indeed the fact that the recommendation was handwritten with several matters crossed out and inserted suggests that it was done in some haste and with little attention to detail.

5. The Department of Foreign Affairs and Trade recommended refusal of refugee status on the basis that there was no well founded fear of persecution. This conclusion appeared to have been reached on the grounds that the applicant had "acted and spoken in a way which raises doubts about his credibility" (i.e. to the migration officer upon arrival) and that he had "lived and worked safely in Sri Lanka for many years since his political activities low-level commenced. And that he has returned to Sri Lanka to visit and that his wife even visited him overseas and returned" (sic).

On 12 December 1991 the RSRC, after considering these recommendations, recommended the granting of refugee status on the general basis that Mr Premalal's political participation and the various incidents related by him gave rise to a well founded fear of persecution.
No bodies apart from the Department of Foreign Affairs and Trade indicated any doubt about Mr Premalal's credibility in relation to his political involvement and the various incidents of political oppression and persecution in which he was involved. No bodies, except perhaps the Department of Foreign Affairs and Trade, seemed to doubt his arrest and interrogation in Sri Lanka. However, because of the very shortness of its recommendation, it is unclear what evidence the Department of Foreign Affairs and Trade accepted and what evidence it doubted in relation to the claims of political persecution.
Presumably not having been advised of the RSRC's decision of the previous day, on 13 December 1991 Ms Hunt of the Legal Aid Commission, acting for the applicant, requested documents under the Freedom of Information Act. On 31 March 1992 the Department of Immigration responded with some documents, attributing the delay in response as due to a "sharp increase in the number of freedom of information requests". On 8 May 1992, still obviously unaware that the RSRC had decided to recommend in favour of her client some six months earlier, Ms Hunt wrote to ask the RSRC to extend the closing date for lodgment of submissions. She was apparently not the only person unaware of what was going on because in her affidavit dated 8 September 1992, Ms Hunt stated that on 18 May 1992 she received a telephone call from a person who identified herself as Kerry McKinnon from the RSRC who told her that the submissions must be lodged by 8 June 1992. On 6 June 1992 Ms Hunt faxed Ms McKinnon that she would forward her submissions on 9 June 1992. On that day she transmitted a 52 page facsimile which comprised a submission of ten pages and supporting documents.
The submission basically restated information originally made available to officer Baker. The relevant contents insofar as they embellish or expand on the original application were:

1. On 31 March 1979 the applicant protested against the Vice Chancellor's rules relating to students and was suspended from his university in Sri Lanka. He was also refused a final examination admission card. It was later allowed but his results were far below expectations and his scholarship was cancelled.

2. Mr Premalal's rejection for the government job was because of information from the Vice Chancellor as to his political involvement.

3. In 1982 as part of a campaign for leaders of the SLFP, he travelled to several districts in Sri Lanka including Colombo.

4. In 1982 the leader of the SLFP was banned from politics. On the orders of the Prime Minister, 40 SLFP supporters were arrested after the UNP won the election.

5. In July 1983 the JVP was banned by the government. Many SLFP and JVP supporters were arrested and shot.

6. In 1983 the Tamil United Liberation Front, which held 17 seats, walked out of parliament protesting the lack of democracy.

7. 1988 was an election year. On 8 January 1988 the leader of the SLMP which the applicant then supported was shot by the JVP. On 2 June 1988 the applicant printed a leaflet entitled "Coalition United Socialist Alliance" which criticised the UNP for using strongarm tactics and corruption. 100,000 pamphlets were handed out bearing Mr Premalal's name. This was done despite JVP pamphlets threatening death to SLMP members. Mr Premalal also organised meetings in various districts including Colombo. During these meetings five people were killed. Mr Premalal was also an "official scrutineer" for the SLMP at the general elections.

8. More details were given of the disappearance of his friend, Mr Munasinghe who, it was observed, had made statements against the government very similar to those made by the applicant. He was killed by soldiers under the control of Mr Alakawala (a former student of his) who admitted to Mr Kadawara (another former student) that this had happened. Alakawala told Kadawara to "tell Rienzie Premalal to be careful. Tell him don't bother finding out about Munasinghe, it's useless".

9. Further reference was made to the incident on 13 January 1989 when a group of armed men believed to be JVP members attended the applicant's house in the context of another killing incident in similar circumstances. He feared that he would also be killed.

10. After that time he stayed with several friends because of his fear

for his safety. Because he was committed to his students he stayed in Gaul. He believed that although Alakawala was stationed there, he would not, as a former student, harm Mr Premalal because of the traditional respect of pupils for teachers in the Sri Lankan code of ethics. However, Mr Premalal still feared that Alakawala could at any time pass on information about him to others who might act.

11. The search of the applicant's house was probably motivated by the

fact that he was suspected of being a JVP supporter. He referred to his December 1990 lecture in front of 1,000 people criticising the UNP. His leaflet criticising the UNP was stamped with a JVP slogan without his knowledge or permission.

12. In 1990 a senior superintendent of police in the national

investigation branch moved to an address near Mr Premalal's house and often asked questions of the applicant's cleaning woman about him.

13. He paid a friend what was apparently a bribe of 5,200 rupees to

get an Indonesian visa.

The submission conceded that Mr Premalal went to Japan "on the pretext" that he was doing business there but said that because he left the country at a time when many JVP supporters were leaving the country, this would further strengthen the government's belief that he was a JVP supporter. The submission also referred to the applicant's criticism of the UNP government's excessive expenditure on defence and lack of funding for education as well as to his public criticism of the UNP government's alleged connection with the Israeli secret service Mossad. These and other views were in many respects very similar to those of the outlawed JVP, and it was therefore likely that the government would mistake him for a JVP member. The submission pointed to an article in the Sunday Observer on 27 October 1991 that the JVP was then recruiting more members from campuses in order to reactivate its campaign of terror.
Amnesty International had estimated that 60,000 people had vanished in this conflict and around 15,000 people were detained under emergency laws. The submission said that lawyers engaged by some detainees to obtain their release had also mysteriously disappeared, presumably killed. It concluded that from 1989 onwards approximately 100,000 people had been killed by the UNP and 12,000 had been placed in concentration camps.
Annexed to the submission were a number of documents. The first was a translation of two Sri Lankan district council election pamphlets authorised by the applicant and containing his name. One of the pamphlets was from the United Socialist Front and was written by Madam Kumaratunga. This pamphlet stated amongst other things:

. Sri Lankan society is facing terrible destruction . the government has undemocratically extended its lifetime . in other words the country is anarchical . today we have a situation closer to dictatorship . the emergency and anti-terrorism laws provide more powers than the constitution

. there are unlimited arrests and people are disappearing and dying inside police jails

This pamphlet also alleged that party leader Vijara Kumaratunga was assassinated by the "fascist JVP movement", referred to the political and economic crisis in the country, and praised its own party's policies. The other pamphlet, also from the United Socialist Front, contained a campaign speech of the applicant's with several remarks critical of the UNP.

Another document was a funeral statement containing a poem dedicated to the deceased, a political figure, which stated that it was co-written by the applicant. There was an advertisement of accountancy classes containing Mr Premalal's name and a certificate identifying Mr Premalal as an election agent. Also annexed was a letter from a government teacher Mr Mahlapala Kalu Galla dated 25 October 1991 addressing the question of human rights in Sri Lanka. This letter corroborated the kidnapping and killing of SLMP supporters by police and military groups and the applicant's arrest in March 1991. It mentioned that the writer of the letter was also arrested on 14 August 1991 and claimed that the emergency laws in Sri Lanka meant that no human rights exist. It stated that there are 18,000 politicians in detention without trial and referred to Munasinghe's death in 1989.
Another annexure purported to quote a senior UNP official as admitting having worked in and organised death squads. The senior official, a retired deputy inspector of police, is said to have admitted that the UNP has murdered thousands of opponents including some human rights lawyers who had died in police custody. In response to these outspoken comments, the government had recently charged this official under a law which prohibited "causing hatred, hostility, ill-will and contempt of the government".
On or about 16 June 1992 the Department of Immigration's review section sent out a memorandum, including an opinion by the ultimate decision-maker Mr Paterson dated 16 June 1992, to all five bodies or people who had made submissions to the RSRC review, i.e. to the Attorney General's Department, to the Community Representative, to the Representative of the UNHCR, to the Director of Refugees International and Asylum section of the respondent's department, and to the Foreign Affairs and Trade Department. Comments were sought. The Paterson opinion stated that the applicant's claims were based around two unrelated incidents in 1989 and 1991, that there was no evidence of the threat of persecution as a result of these incidents, that before travelling to Australia he travelled to and from Sri Lanka on several occasions, and that he gave his original reason for travelling to Australia as study and business. A further comment was that the applicant was able to continue working in his job as a lecturer despite supposedly being in hiding for three months in early 1989.

Paterson raised the question who would pose the threat of persecution if the applicant returns to Sri Lanka in the light of the emasculation of the JVP and the fact that the applicant was investigated and cleared of any JVP links in early 1991. The conclusion was that the government is not likely to be interested in him and that they could offer him protection if there was a continuing threat from others.
The Attorney General's Department declined to comment further. The Community Representative, Ms Janet Wood, commented that the lack of relationship between the two incidents should not be a factor since any incident, particularly any which had political ramifications, could bring a violent reaction in Sri Lanka and it was clear that Mr Premalal was subjected to potential and actual violence against him. Ms Wood exasperatedly exclaimed that "it is difficult to know what sort of evidence the delegate wants". She pointed out that the applicant had been active politically in various ways in a society where such activity was dangerous. He had identified the government party and the JVP as possible agents of persecution, and the JVP was reappearing in a number of forms, some holding to the original JVP program. Ms Wood reminded the department that the role of the Sri Lankan government in relation to human rights abuses had been of great concern to the Australian government, as expressed at a recent meeting of the United Nations Commission on Human Rights in Geneva, and that there was world-wide concern about disappearances which appeared to be linked to the government. The representative also found odd the suggestion that the applicant would be protected by the government should he need it. Further, it was pointed out that the situation in Sri Lanka was not stable. This made it possible for Sri Lankans to leave and return but for those with political profiles such as the applicant, there was a real chance of violence. Ms Wood's conclusion was that the applicant had a well founded fear of persecution on political grounds.
The Department of Foreign Affairs and Trade responded in a very short handwritten note by Geoffrey Davidson that the JVP was not a sufficient threat and they did not appear to be a risk to the applicant in the relevant sense. This view presumably carried little weight because while this application was based on the applicant's fear of death, torture or persecution by the UNP government and/or the JVP, the applicant's fear of persecution was really from the UNP government as he feared being mistaken for a JVP member. The only incident he attributed to the JVP was the visit to his house by one of its suspected death squads.
On 18 June 1992, Ms Hunt also sent a facsimile to the RSRC from Amnesty International. The fax stated that "Amnesty International opposes the return of Mr Premalal to Sri Lanka as it believes that it is reasonable to expect that there is a risk that he may suffer human rights abuses on return". It also stated that "Amnesty International can confirm the disappearance of Mr D Munasinghe", and that Amnesty International continued to receive reports of threats to members of opposition parties. Ms Hunt pointed out generally that even mere suspicion of JVP membership was enough to subject the applicant to death squads and extra-judicial execution. At best Mr Premalal was quite likely to expect human rights violations upon return.
On 4 August 1992 the Department of Immigration wrote to Mr Premalal stating that it did not believe he was a refugee and giving him seven days to comment. Enclosed in the letter was a 12 page document of reasons for the department's belief and general information upon which these reasons were based, as well as a summary of the issues.
The department's reasons for the refusal may be summarised as follows:

. The applicant's past actions did not have a direct bearing on his claim for refugee status as the political parties the applicants supported were legal and the applicant was apparently able to leave and enter Sri Lanka quite easily and legally. . The applicant had presented a picture of the security situation in Sri Lanka which tended to be "one sided". The apparent reason for this view was that although it was true that the security forces had harshly crushed the JVP, this was only after the JVP had carried out an ongoing campaign of brutal murders and disruptions. . The applicant was never a senior officebearer in any of the opposition parties nor can he be described as having taken a prominent political role. Although the evidence of his pamphlet distribution in 1988 was accepted, it was found that his profile was not of sufficient importance to be of continuing concern to the UNP government.

. Although the Sri Lankan government deals severely with members of the JVP and the LPTE (a Tamil group), members of recognised opposition parties operated freely without being subject to persecution. A total of 29 parties were "legally recognised", 10 of which held seats in parliament.

. The JVP only operated to a limited extent in the south, and given the destruction of its organisational structure, the applicant would not face any direct threat from the JVP if he was to return to Sri Lanka.

. Little weight could be given to the applicant's claims that he was targeted by JVP or Sri Lankan security forces in 1989. The reason for this is that he had continued to teach at the science centre at Gaul. Further, as the JVP had been effectively crippled by early 1989, if any section of the security forces had wished to detain or kill the applicant, it would have had every opportunity to do so then. Yet the applicant did not have any further problems that year.

. The search of the applicant's house in 1989-90 was accepted. The search was concluded to be a routine search, with emphasis being placed on the fact that the applicant continued to work in 1990, presented a lecture in the Gaul town hall criticising the government but did not suffer any immediate consequences, and legally departed Sri Lanka for Japan. . As to the Gaul lecture, the conclusion was that: ...there is considerable freedom of speech and in the press in Sri Lanka. The Sri Lankan government has also shown increased responsiveness to international pressure over human rights issues. At the time of the attempt to impeach the President, there were a number of public attacks directly on the President which did not result in any killings of opposition supporters. Given that the applicant's speech was given at a public meeting and was restricted to criticising government economic and security policies, I do not consider that the applicant would have been of concern to the security authorities because of this lecture. . Because the applicant's credibility was doubted, the delegate seemed to doubt his claim of having been detained in March 1991 and found that the applicant had exaggerated his role and profile as a government critic. Again the delegate highlighted that the UNP government was democratic and found that the use of thugs against some opponents did not appear to be directly connected to the security forces.

. Even if Mr Premalal was detained in March 1991, it was found that: ...his alleged arrest was probably due to suspected JVP connections resulting from JVP slogans being stamped on his leaflets and his friendship with Mr Munasinghe who was allegedly killed by the special squad. The security forces have apparently not come across any evidence to suggest that the applicant was involved with the JVP. I consider that the applicant may have raised a local profile with the security forces in Gaul and may have been the subject of an investigation. That he was apparently released after several hours leads me to the conclusion that the applicant was of little interest to the authorities and there is no direct threat to his personal safety. . The applicant's letter to his wife did not indicate any fear of persecution. The indication in the letter was that Mr Premalal wished to enter Australia to gain citizenship, not to conduct business or study as claimed on other occasions. It was concluded that the applicant wished to enter Australia for reasons other than a well founded fear of persecution. . It was found that the applicant was employed only as a part-time lecturer after August 1989. Thus although the possibility does not seem to have ever been put to the applicant for his reply or explanation, his reason for departure may have been because he was unable to obtain full time work in the depressed private sector. . Weight was given to the fact that Mr Premalal "attempted to mislead immigration officers at Sydney airport and had blank letterheads of various companies in his possession". It was considered that this adversely reflected on his credibility and on the reliance that can be placed on his claims. . The Amnesty International report was rejected on the basis that it did not have the full amount of relevant material. . The applicant's claim of being suspected as a JVP supporter was said to be inconsistent with the fact that no action was taken against him when the security forces were eliminating or arresting JVP suspects.

. The claims of abuses, bribery, etc. in relation to the elections were accepted but the delegate found that this had no relevance to the applicant's claim for refugee status. The 1989 elections were found to be more representative of the will of the people than the 1970 or 1977 elections.

The final conclusion was that there is no real chance of persecution.
On 13 August 1992 the Department of Immigration wrote to Mr Premalal stating that the RSRC recommended against the granting of refugee status to him. This statement was incorrect and was apparently due to a misunderstanding of the decision by the officer writing the letter.

The case for review
43. The applicant's application for an order for review was based on the grounds that:

1. there was a breach of natural justice;

2. the respondent committed an error of law in that:

(i) he took irrelevant considerations into account;

(ii) he failed to take relevant considerations into account;

(iii) his exercise of power was unreasonable;

(iv) the Chan test was not properly applied.

Natural justice
44. The applicant submitted that natural justice had been breached in two ways:

1. in relation to the deliberations of the Refugee Status Review Committee (RSRC) in December 1991; and

2. in the delegate's final determination of the matter in August 1992.

The applicant argued that a legitimate expectation was created that all submissions to the RSRC would be considered and that this did not occur. This is said to be evidenced by a letter of 1 November 1991 written by Ms Hunt to the Department of Immigration, by the lengthy delay in the provision of documents under the Freedom of Information Act, by the telephone conversation with Kerry McKinnon on 18 May 1992, and by the subsequent correspondence between the department and the applicant including a request by Ms Hunt that the Amnesty International letter be circulated to all members of the RSRC. The applicant submitted that Ms Hunt was allowed to operate under the misapprehension, created by the department, that her submissions and documents would be forwarded to the RSRC and circulated to the various members. Yet that circulation could not have taken place because the decision of the RSRC had been made before the material was made available and therefore without apparent consideration of the material. The applicant submitted that this was particularly important because the applicant's submission to the RSRC and the decision of the RSRC were "plainly fundamental to the ultimate decision made by Mr Paterson, the delegate".
The respondent said that the confusion about the submission to the RSRC arose from the department's view that Ms Hunt's intention was to make submissions to the delegate rather than to the RSRC. The time frame set up supported that view of the matter. It was pointed out that Ms Hunt made her additional submissions some seven months after her initial desire to make them. The respondent submitted that there was no reason for the delegate to forward Ms Hunt's submissions to the RSRC after it had already made a favourable recommendation.
The RSRC is a body with no statutory basis and exists to assist decision-makers on refugee claims by assessing applications and making recommendations. Its deliberations are not subject to judicial review, nor is it bound to comply with rules as to procedural fairness: Gogod v. Lawton (1982) 42 ALR 117. Although the concept of legitimate expectations has been described as a "somewhat vague legal concept": Nashua Australia Pty Limited v. Channon (1981) 58 FLR 325 at 335 per Justice Lee (of the Supreme Court of New South Wales), it is undoubtedly part of the Australian concept of natural justice. At the same time a legitimate expectation attracts merely procedural not substantive protection: Attorney General (NSW) v. Quin (1990) 170 CLR 1. Hence the Court has no jurisdiction to protect an individual's legitimate expectations against lawful exercises of power.
If the suggested legitimate expectation had been met, the applicant's submissions and documents would have been remitted to the RSRC. But the RSRC's conclusions would not have been affected by the acceptance of the submissions as a favourable decision had already been made, nor would the delegate's decision have changed as he had the applicant's submissions and the RSRC's conclusions before him. In other words, even if it were to be found that the applicant's right to natural justice in this respect had been breached, it would take the applicant no further.
However, I reject the submission in any event. The first and major reason is that the doctrine of legitimate expectation has usually been tied into the concept of a right, i.e. the legitimate expectation must relate to the presence of a legally recognisable right to which the individual is entitled: Salemi v. McKellar (No. 2) (1977) 137 CLR 396 at 404; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 491. In particular, in the only case quoted for this proposition by the applicant, Kioa v. Minister for Immigration, Local Government and Ethnic Affairs (1985) 159 CLR 550 it was said at 582-3 that a legitimate expectation is only created where a "right or interest" exists. Chief Justice Mason said that this should be:

understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.

Although the right does not have to be a legal one, there must be a right, interest or privilege which will be granted or renewed or which will not be denied without an opportunity being given to the person affected to put his case.

Kioa thus does not support the applicant's view that natural justice required giving Ms Hunt a right to make submissions to the RSRC. The applicant was given full opportunity to make submissions to the respondent as the definitive decision-maker and all the material provided to the RSRC was seen and considered by the delegate. Even if, as the applicant submits, the views of the RSRC, though rejected, were important to the delegate, the delegate had a non-delegable duty to look at all the facts and not merely to accept the RSRC's views.
Similarly I reject the applicant's second submission that there was a breach of natural justice by allowing inadequate time for proper comment on the proposed decision. The applicant claimed that the seven day period given him to reply was insufficient. The applicant's submission was that it was critical that he should have been provided with the Freedom of Information Act information in time to make submissions on the decision to be made. The applicant submitted that this was even more so considering that the UNHCR's views were apparently vital to the respondent's ultimate decision.
It is obvious that the delegate did not view the credibility of the applicant favourably in the assessment of his claims. It is therefore not clear why the importance of having the information under the Freedom of Information Act was "critical". It is also difficult to understand how access to this material could have assisted the applicant on the credibility issue. Apart perhaps from the conclusion that the applicant may have been motivated to come to Australia, or at least leave Sri Lanka, because he only had part time work there - in the circumstances, a relatively minor matter - Ms Hunt and the applicant were made fully aware of the material on which the delegate relied in reaching his proposed decision. Both were in a position to make a response to the proposed decision, which they did. This contradicts the essence of denial of natural justice in its modern emanation of procedural fairness. In the circumstances I think that a seven day period to comment was reasonable.
As to the material provided by Amnesty International and the rejection of its views, the basis for the finding that Amnesty did not have all the relevant material is not clear. Certainly I have not been provided with information as to what was before Amnesty International when it made its report. It seems unlikely to have been any less than was necessary for its conclusions to have been reliably drawn. The applicant submitted that access to the "relevant material" which the delegate used to reject the Amnesty International letter was critical. This cannot be a breach of natural justice. All I need to say is that it was not an error of law to reject Amnesty's conclusions, especially as Amnesty was clearly not in a position to assess the credibility questions that loom so large in this case. It can rarely if ever be a breach of natural justice to consider a point of view and then reject it after a consideration of all the other evidence and circumstances.

Relevant and irrelevant considerations
54. The applicant's submission under this heading was extremely short and not very informative. The argument was that despite the fact that the respondent accepted the claims regarding intimidation and persecution, his conclusion that the applicant was of little interest to the authorities and there was no direct threat to his personal safety was not reasonably available and should not have been taken into account.

It is generally not correct to equate the terms relevant and irrelevant to factually correct or incorrect: Akpan v. Minister for Immigration, Local Government and Ethnic Affairs (1982) 58 FLR 47. Moreover, an error of fact and degree is not usually sufficient to obtain judicial review: Soo v. Tuchin, Beaumont J. 30 April 1986 unreported. Further, the factual correctness of an impugned decision cannot generally be challenged by the back door by invoking relevancy: Brunetto v. Collector of Customs (1984) 4 FCR 92. Nevertheless, there are circumstances where a Judge has under sections 5(1)(e) and 5(2)(a) and (b) of the Judicial Review Act the power to find that a fact found unreasonably may be struck down: Minister of State for Immigration, Local Government and Ethnic Affairs v. Pashmforoosh and Anor (1989) 18 ALD 77. Hence, what the applicant is really asserting in the submission is that the finding of fact that the respondent was of little interest was unreasonable and illogical.

Although I have some doubt about the logic and correctness of using the relevant and irrelevant considerations tests to impeach findings of fact, this approach has been approved in a number of cases. One is Independent FM Radio Pty Limited v. Australian Broadcasting Tribunal (1989) 3 BR 458 where Justice Davies said at 477 in relation to the significance of erroneous findings of fact by a decision-maker:

Nevertheless, recent federal legislation has emphasised the need for reasoned decision-making. See the Freedom of Information Act 1982 (Cth), s 13 of the ADJR Act, ss 28(1) and 43(2B) of the Administrative Appeal Tribunal Act 1975

(Cth) and s 25B of the Broadcasting Act. Thus instances may be found in the cases where decisions have been set aside because, being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or there was no evidence or other material sufficient to justify the making of the decision or the decision was so unreasonable that no reasonable person could have so exercised the power. The cases have developed, I believe, to the extent that the making or failure to make a particular finding of fact in the course of the reasoning process may be attacked on such grounds and that the taking into account of a fact found unreasonably or the failure to take into account a fact that a reasonable decision-maker must have found and taken into account provides a ground of review under ss 5(1)(e) and 5(2)(a) and (b) of the ADJR Act.

His Honour went on to discuss different ways in which this viewpoint has been expressed, including one which asserted that if assertions of important facts are disbelieved without reason, there has been a failure to take account of a relevant consideration.

Certainly here the submission seemed to be that the finding of no threat to the applicant was unreasonable or erroneous and in that sense an improper exercise of the decision-making power. It was on any view quite extraordinary for the delegate to have accepted the alleged acts of intimidation, discrimination and threats of death against Mr Premalal and then to have rejected his claim that he was in danger of persecution because he was allowed to work in the country for three months and to leave, especially as both of these occurrences were otherwise explained. However, without more, I do not believe that this is sufficient to invoke the power of judicial review on the ground of taking an irrelevant consideration into account. A process of reasoning using matters that could be a relevant basis for a conclusion can rarely be impugned on this ground because the conclusion is unjustifiable. Certainly the applicant's submission is not, as the respondent suggested, a no evidence submission. The decision-maker in fact had ample evidence to support the basic facts taken into account. The question being raised by the applicant is whether there could be a causal nexus between the facts proved and the conclusion drawn. For myself I prefer to look at this argument in the context of the applicant's later submission of an unreasonable exercise of power where I believe it properly belongs.
It is obvious that the delegate placed a great deal of weight on the democratic nature of Sri Lanka. The presence or absence of democracy is not important to this case by itself; its relevance is that in a true democratic state the applicant would be protected by rule of law. However, the applicant made no attack on the delegate's finding in this regard. He therefore presumably conceded that notwithstanding the abundant evidence undermining the country's claim to democratic standards, values and protections, he has little to fear in relation to the tolerance and acceptance of pluralism in political affairs.
The applicant sought to argue that the departmental letter of 13 August 1992 which had wrongly stated that the RSRC had recommended against the grant of refugee status, was evidence of an irrelevant consideration. The respondent quite rightly pointed out that the earlier letter of 4 August addressed to the applicant did not make the same mistake and that neither of the writers of these letters was the decision-maker. There is no evidence that the decision-maker misunderstood the recommendation. To my mind the error, while most unfortunate and no doubt distressing to the applicant, had no effect on the decision. There is no basis for believing that the decision-maker was influenced by the RSRC as a body at all, let alone by an erroneous understanding of its conclusions.
The applicant also argued that the respondent did not consider the UNHCR statement that there are certain areas in Sri Lanka such as Gaul where the applicant may be persecuted, whereas he may not be persecuted in Colombo. Neither party addressed the issue of whether if the applicant had to remain in Colombo to avoid persecution, he would fulfil the Convention criteria for refugee status. In my opinion, these omissions are not destructive of the conclusions reached even if they occurred. Despite all the turmoil and violence in the country, nothing in the evidence suggested that citizens were not legally and in practice free to live wherever they wished. The delegate did in fact take into account the UNHCR's comments. His task was to determine whether the applicant had a real chance of persecution should he return to Sri Lanka, not to turn his mind to the various areas within Sri Lanka where the applicant might and might not be able to live safely.
In connection with the view of the UNHCR that refugee status should be refused, the applicant said that it may or would have been relevant to submit all the information to the UNHCR such as the Amnesty International letter. However, this submission would not warrant the striking down of the decision as the material was in front of the delegate when he was making his decision. The assumption must be made that the UNHCR bureau knows its job. The Court has no power to review its work or to order it to do anything. The submission in fact implied that if the UNHCR had had more information, its officer concerned may have reached the opposite conclusion and that if this had occurred, the delegate may have changed his mind. This is a highly speculative approach which it would be quite improper to adopt. The attribution of weight to different pieces of evidence is a discretionary matter for the delegate who had all the information before him. There is no reason to conclude that another view would have emerged from the UNHCR or that if it had, this fact would have altered his mind. In view of the conclusions on credibility, it could hardly have done so.

Unreasonableness
62. The applicant also submitted that the delegate's decision was unreasonable in accordance with what are known as Wednesbury principles. These submissions require me to examine the Court's role in the application of the judicial function to administrative decision-making. It has become increasingly clear that administrative bodies such as the Department of Immigration are now being required to make decisions of a legislative and adjudicative kind although these decisions may not necessarily be analysed in those terms. In the face of this merger of functions, as Galligan points out in his book Discretionary Powers 1986 (Clarendon Press, Oxford) at page 231, "it is not easy to see what the role of the courts is to be in reviewing discretionary decisions". Certainly the role has in recent years not been confined to a clearly adjudicative one in the sense of limiting the Court to matters of a preliminary or threshold kind and therefore excluding an examination of the substance of decisions and the procedures used in reaching them.

This issue is at the very centre of a far reaching controversy as to the extent of the Court's powers in relation to judicial review of administrative action. It may be that the fundamental problems of the separation of powers doctrine and its clash with the doctrine of judicial review can only be solved by a fuller exposition and understanding of the rule of law and its application to the judicial function. To quote Galligan (p 233):

It is here that the courts are important. They stand outside the relationship between legislature and administration in two ways: they are not concerned directly with the formulation and implementation of social programs and objectives, nor are they accountable to the political process, either directly or through the legislature. This suggests that the legitimacy of judicial review depends not so much on accountability to the political process, but rather on advancing fundamental and enduring constitutional values. This gives some guidance for review: judicial review is most justifiable not when it is directed at substantive policy choices that occur in exercising discretion, but rather when it draws on values which form part of the constitutional framework within which discretion occurs. Far from being value-free, the justification for review lies in the assertion of certain values as sufficiently important to be constraints on the exercise of discretion. The origins of such values must be found within a general constitutional theory.

Certainly the comment of Sir Anthony Mason in Minister for Aboriginal Affairs v. Peko Wallsend Ltd (1986) 162 CLR 24 at 42, viz. that

A court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

weighs even more heavily on a judge's mind when considering an applicant's submissions as to unreasonableness. On the other hand, that statement should not lead to the other equally apparent danger of abandoning the judicial function to the often arbitrary will of administrative bodies. To do so would be to remove the intended protective bulwark for citizens and others claiming to be oppressed by a democratic state. In this context it is apposite to take into account Dworkin's distinction between policy and principle. Policy is executive decision-making based on popular mandate. Principle, with which the judicial function is directly involved, is the body of legal rules and principles having their roots in human rights and respect for individual dignity that form the moral foundation of a particular society: Dworkin, Taking Rights Seriously, 1986 (chapter 4). It is in this respect inextricably tied in with the continuity that forms the basis of the rule of law.

I discussed the principles governing the modern application of Wednesbury unreasonableness at some length in Dibo v. Minister for Community Services and Health unreported, 18 March 1992. It is fundamental to judicial integrity that judges do not review decisions simply according to personal conceptions of policy or according to their individual moral systems. Decisions must be reviewed with an integrity which comes from a strictly legal though not necessarily formalistic approach to law. Again to quote Dworkin at page 243:

Law as integrity asks Judges to assume so far as this is possible that the law is structured by a coherent set of principles about justice and fairness and procedural due process and it asks them to enforce those in the fresh cases that come before them, so that each person's situation is fair and just according to the same standards.

It is therefore appropriate, in reviewing refugee status decisions of this kind, to take into account the best available examples of objectivity in this field, namely the various international human rights principles and conventions to which Australia is a party. As far back as 1948, the High Court affirmed the principle that the judiciary should interpret legislation and policy wherever possible consistent with international conventions ratified by Australia: Chow Hung Ching v. The King (1948) 77 CLR 449 at 477. President Kirby of the New South Wales Court of Appeal said in a recent speech entitled "The Australian Use of International Human Rights Norms: from Bangalore to Balliol - a View from the Antipodes" at page 20 (Judicial Colloquium, Balliol College, Oxford University, England, 21-24 September 1992):

Deriving authority for fundamental principles (both of the common law and of international human rights norms) by reference to international treaties is now increasingly occurring in the Australian courts.

Recently the High Court has unambiguously affirmed this principle in Mabo v. The State of Queensland (1992) 175 CLR 1, Capital Television Pty Ltd v. Commonwealth (No. 2) (1992) 108 ALR 577, Nationwide News Pty Ltd v. Wills (1992) 108 ALR 681, and Dietrich v. The Queen (1992) 109 ALR 385. Justice French and I separately discussed and applied these principles, in light of authority, in Minister for Foreign Affairs v. Magno (Full Court of the Federal Court unreported 26 November 1992).

Nowhere are considerations of international instruments of human rights more important than in the area of refugees. Australia ratified the 1951 Geneva Convention (the Convention) relating to the status of refugees and its protocol on the basis of "the principle that human beings shall enjoy the fundamental rights and freedoms without discrimination" (Department of Foreign Affairs and Trade, Treaty Series no. 5 of 1954, preamble). The content of these rights, although not only or particularly applying to refugees, is comprehensively dealt with in the International Covenant on Civil and Political Rights (ICCPR) which Australia ratified by legislation in 1981 (the Human Rights Commission Act 1981).
There is no doubt that Mr Premalal's rights under the ICCPR have been extensively breached by Sri Lanka in ways accepted by the respondent's delegate. The delegate accepted, for example, breaches of:

. Article 1:

the right to "freely determine" political status . Article 6(1):

"Every human being has the inherent right to life ..... No one should be arbitrarily deprived of his life" . Article 7:

Mr Premalal was "subjected to torture or cruel, inhuman or degrading treatment or punishment"

. Article 9:

"Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law". . Article 10:

"All persons deprived of their liberty shall be treated with humanity and with respect to their inherent dignity of the human person".

. Article 19:

in that Mr Premalal's freedom of expression has been interfered with

. Article 25:

(b) in that Sri Lankan elections are not entirely free as they should be, i.e. "genuine periodic elections ..... shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing free expression of the will of the electors"

(c) in that Mr Premalal has not had access on general terms of equality to public service, in this respect to employment in the public service

. Article 26:

prohibiting discrimination in relation to political or other opinions

Other breaches of the ICCPR by Sri Lanka have also been evidenced.
The term "refugee" is defined in the Convention and the Protocol as a 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 as a result of such events, is unable, or, owing to such fear, is unwilling to return to it.

This definition has been accepted into the municipal law of numerous countries. For example, Germany, the United States, Canada and Switzerland have all adopted this definition into their laws: Guy S Goodwin-Grill, The Refugee and International Law, Clarendon Press, Oxford 1983 at pages 16-17. Although in Australia there is no express enactment of the definition of refugee, and the Convention and Protocol is not part of Australian municipal law: Gunaleela and Ors v. Minister for Immigration, Local Government and Ethnic Affairs and Ors (1987) 14 FCR 591 at 596, it is clear that the Convention definition has been used by successive Australian Governments for many years. The definition appears on the application form for refugee status. Furthermore, since at least 1977 there has been a declared policy to use the definition as well as to extend it to "people in refugee-type situations who do not fall strictly within the UNHCR mandate or within Convention definitions": Ministerial Statement of Refugee Policy and Mechanisms, Parliamentary Debates, House of Representatives (Hansard), 24 May 1977. The definition is undoubtedly something which must be considered by the delegate. Indeed so much is accepted by the respondent.
It is against the background of these considerations that the issue must be considered whether, in light of international law recognised, acknowledged and accepted by Australia, the present decision was unreasonable. This submission by the applicant draws on powers under sections 5(2)(g) and 6(2)(g) of the ADJR Act. As was said in Associated Provincial Picture Houses Limited v. Wednesbury Corporation (1948) 1 KB 223 by Lord Greene M.R. at 230:

It is true to say that if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the Court can interfere. That, I think, is quite right: but to prove a case of that kind would require something overwhelming ...

Unreasonableness may be established even though no irrelevant matters have been taken into account and natural justice has been granted, and even if no other errors of law appear on the record: Parramatta City Council v. Purcell (1973) 128 CLR 305. The test of unreasonableness has been variously put and it is not necessary to redescribe it here: see Dibo at pages 47ff. Suffice to say that the principle of unreasonableness may encompass the concepts of proportionality, consistency and legal certainty. Furthermore, and importantly in this context, reasonableness encompasses a recognition of fundamental human rights and unreasonableness may occur if they are breached or denied: see generally Joel and Lester, "Beyond Wednesbury: Substantive Principles of Administrative Law" (1987) Public Law 368; M. Allars, Introduction to Australian Administrative Law 1990 at paragraphs 5.5.2 to 5.5.57.
Although, as pointed out in Dibo, many cases shy away from unreasonableness as almost an impossible test to prove, what was said in Council of Civil Service v. Minister for the Civil Service (1984) 3 All ER 935 at 951 should always be recalled:

It applies to a decision that is so outrageous in its defiance of logic or of expected moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

Especially in this context, an unreasonable decision may therefore be seen as something quite irrational or unprincipled. If a decision may be so categorised, it is the judicial duty to strike it down. As Lord Scarman has said:

Unreasonableness is too often treated as a rare bird which is not to be allowed any very extensive flight.

See The Development of Administrative Law: Obstacles and Opportunities (1990) Public Law 490 at 492. There is also little doubt that unreasonableness may be used as a ground for attacking conclusions based on false views: Detsongjarus v. Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 139 at 140.

The concept of unreasonableness in relation to immigration cases has been discussed at length in numerous cases. Thus for example in Luu v. Renevier (1989) 91 ALR 39 at 47-50 it was held that in circumstances where every consideration points in the direction of a person being permitted to remain in Australia, it is unreasonable to uphold a deportation order based on a finding of a risk of recidivism which was hypothetical and minimal at best. Similarly in Woudneh v. Minister for Immigration, Local Government and Ethnic Affairs (Gray J, unreported 16 September 1988), in the presence of a finding that an applicant would probably be precluded from practising his religion in Ethiopia, it was held that a conclusion that the applicant had an unwarranted fear of religious persecution was plainly erroneous, and was therefore one which no reasonable person could have reached.
Moreover, the width of the concept of unreasonableness allows it to strike down decisions which have given inadequate weight to relevant considerations. As Chief Justice Mason said in Minister for Aboriginal Affairs v. Peko Wallsend Limited (1986) 162 CLR 24 at 41-2:

A court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor is of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations but that the decision is manifestly "unreasonable".

Furthermore, the failure to make enquiries where there are certain facts which are readily available to the delegate, for example to clarify doubts in the delegate's mind, may also be manifestly unreasonable: Prasad v. Minister for Immigration, Local Government and Ethnic Affairs (1985) 6 FCR 155. And the context in which a discretion is exercised may require the facts upon which a decision is based to be established to quite a significant degree: Ruangrong v. Minister for Immigration, Local Government and Ethnic Affairs (1988) 14 ALD 773.
In the context of refugees where the ultimate right to human life may be at risk, these considerations take on a pre-eminence of their own. Indeed the Handbook on Procedures and Criteria for Determining Refugee Status, published by the office of the United Nations High Commissioner for Refugees and used by Australian departmental committees, states at page 45 (paragraph 190):

It should be recalled that an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own.

The principles for establishing the facts are laid out at paragraph 196 of the Handbook where it is said:

It is a general legal principle that the burden of proof lies on the person submitting the claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements would be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof and principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.

It is further stated that:

If the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

Furthermore the Handbook points out that because of past experiences and fear of authorities, a person may not speak freely and give a full and accurate account of the case to the migration authorities. In this respect, paragraph 199 states:

Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner's responsibility to evaluate such statements in the light of all the circumstances of the case.

Paragraph 202 contains this strong warning:

Since the examiner's conclusion on the facts of the case and his personal impression of the applicant could lead to a decision which affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgment should not, of course, be influenced by the personal consideration that the applicant may be an "undeserving case".

Although it was not in evidence or even mentioned by the parties in this case, the UNHCR Handbook was referred to with approval by all members of the High Court in Chan. As it is strongly favourable to the applicant's case here, no injustice can be done to him by considering it as undoubted background to the UNHCR's own decision to recommend refusal of refugee status in this case. I do not rely upon it myself except as one influential approach that should be considered. Its contents were no doubt known to the decision-maker although, as he did not mention it, he could only have taken it into account, if at all, in a type of atmospheric or subconscious way.
The issue here is whether or not upon all the considerations the decision was unreasonable. The applicant pointed out that the delegate accepted that he was involved with legal opposition parties - apparently all the various parties which the applicant listed in his application for refugee status - that he had authorised pamphlets for the 1988 district council elections, and that he had been an opposition party worker in the 1989 Presidential election. He accepted the existence of the Sri Lankan government's unrestricted campaign to crush the JVP, part of which involved arrest and incarceration without trial, murder, brutality and extensive breaches of human rights. Indeed the delegate even found that the government's actions were justified. The search of the applicant's house was also accepted, as was the applicant's evidence about his anti-government speech in the Gaul town hall. With some reservations, the incidents of interrogation, arrest and brutality in March 1991 were also accepted or not rejected. The delegate seems to have accepted that Mr Munasinghe was a friend of the applicant's who had been in political parties similar to those of the applicant, and that the disappearance of Mr Munasinghe had a bearing on the applicant's own safety.
Despite all this and the other evidence earlier detailed, the delegate rejected the applicant's claim for refugee status. In his criticism of the grounds for the rejection, the applicant described the delegate's finding that he was not a senior officebearer in any party and did not take a prominent political role, as unreasonable, irrelevant and illogical in the light of the persecution accepted. Indeed, the delegate is said to have given inexplicably little weight to the applicant's claim of persecution, and to reject his targeting by the JVP, because of facts such as that the applicant had remained at work at the Science Centre in Gaul. The applicant argued that in view of his reasonable and adequate explanation of why he remained at work, and in the absence of any evidence that this explanation was either wrong or misleading, it was not reasonably open to the delegate to reject the refugee claim simply on the basis of his opinion of the lack of credibility of the explanation.
The applicant submitted that the delegate did not adequately take into account the volatile situation in Sri Lanka where numerous people, indeed most of the population, were threatened at some time or other. In a country under emergency law with roaming death squads and an appalling human rights record according to major international organisations, it is not reasonable that citizens who fear persecution (which may even be the majority of the population) should give up their jobs to prove that they fear persecution. This submission is clearly correct. As in other countries with a volatile and dangerous political situation, people who justifiably fear persecution or death may for various reasons still keep working at their jobs. Indeed in the former USSR and Nazi Germany, many of those who were persecuted by authorities for their political views or their religious or ethnic affiliations kept working at their occupations until they were either sacked, imprisoned, transported, exiled or killed.
The applicant pointed to other examples of manifest unreasonableness. For example, the delegate considered that the legal departure of the applicant from Sri Lanka meant that the authorities had no interest in him. This was despite the applicant's evidence, which the delegate accepted, that the authorities had enough interest to interrogate him and threaten him with death on some occasions.
Sri Lanka is in this respect unusual in the sense that it calls itself a democracy and thus is at least in form obligated to act as one. Although it has apparently been allowing many people to leave the country legally, Sri Lanka has, on the evidence accepted by the delegate - and no evidence has been presented to the contrary - been conducting an illegal campaign of terror, intimidation and violation of human rights against its citizens for some years. The evidence, accepted by the delegate, included that Sri Lanka has even imprisoned and murdered lawyers who fight for human rights.
In a paper on Sri Lanka titled Attacks on Justice - Harassment and Persecution of Judges and Lawyers, June 1990 to May 1991 published by the Centre for the Independence of Judges and Lawyers of the International Commission of Jurists, Reed Brody referred to "the dangers faced by lawyers who take human rights cases in their individual capacity" in Sri Lanka. He noted that "Judges are also subject to influence and pressure, sometimes involving threats. In the past three years 16 human rights lawyers have been killed, while 36 human rights lawyers have fled the country after receiving death threats." The paper implicitly, and in some parts explicitly, suggested that the Sri Lankan government was responsible for these deaths.
The evidence also suggested that Sri Lanka is such in a state of political turmoil and upheaval that arrests and incarceration, even for known political offenders, are matters of chance. It appears that the prisons are full and death squads are rampant. In such a climate it is not unlikely or unusual that a person who is marked for death may be allowed to leave the country even though the authorities intended to get to him some time later after he returns, or even overseas. The persecution feared does not necessarily have to be immediate but may be at some time in the future provided that the grounds are sufficient. Justice Dawson said in Chan at 567:

It is also clear enough that a fear can be well founded without any certainty, or even probability, that it will be realised.

Again I agree with the applicant's approach to this aspect of the decision-making. Although the opportunity for legal exit from the country may be a consideration relevant to refugee status, it would be manifestly unreasonable to base a conclusion of an unfounded fear of political persecution simply on a mere speculation or suspicion that the authorities had no interest in a person because they allowed him to leave. If guessing is permitted, it is no less open to find that the authorities may have been glad to be rid of the applicant or of having to make the decision to kill him. Or his departure may have resulted from negligence or inadvertence.
All of this means that a strong case could be made for the unreasonableness of the decision if the applicant is to be believed. Contrary to his conclusions, I think that the delegate's findings of fact would undoubtedly have provided an almost overwhelming basis for accepting a well founded fear of persecution. Indeed, the facts found or accepted by the delegate are not reasonably susceptible of dismissal, and would not justify a rejection, of refugee status for the reasons he has given. I accept the applicant's submissions that his being allowed to continue working in Gaul, to leave and return to the country, and to his release after interrogation and abuse do not, in the light of all the evidence, do not gainsay a well founded fear of persecution on political grounds. The delegate found that the applicant was mistreated for his political beliefs and activities, probably beyond the levels suffered by most Sri Lankans. Some of this may well recur, and worse may occur, if he returns and again agitates against the existing order. It seems likely that few Sri Lankans can expect to be able to avail themselves of the protection of the Sri Lankan government in these difficult days.
However, the delegate clearly gave overwhelming weight to the applicant's lack of credibility, based on his letter to his wife, on his possessions at the time of his arrival here, and on his interview with officers at the airport. The applicant said that the letter is ambiguous. Although it did refer to the applicant's wishes to study and possibly gain citizenship in Australia, as well as to conduct one or more businesses here, the applicant said that none of these grounds is either inconsistent with another or with the claim for refugee status. Similarly the existence of blank letterheads in the applicant's possession may in themselves have been for the purposes of legitimate business transactions. The applicant's argument amounted to a proposition that a person who is a refugee is not by that factor denied the right to think about whether he wishes to study or conduct business in the country to which he is fleeing. In the abstract, as the UNHCR Handbook powerfully counsels, that approach must be true. The question is whether that rationalisation is appropriate in this case.
The delegate found that the applicant attempted to mislead immigration officers at Sydney Airport. I think that the evidence of intention to mislead is scant. There was no evidence that the blank letterheads were for purposes of fraud. Nor was it suggested that the applicant had illicit commerce in view and was other than financially and commercially reputable. In any event, the applicant's submission was that even if his credibility in relation to his discussions with immigration officers at the airport is doubted, this fact alone, or even this fact coupled with other doubts on his credibility, are not sufficient to justify denial of refugee status. A denial of refugee status on the basis of one instance of untruthfulness by the applicant would, on this argument, be unreasonable, irrational and inhumane. Like the UNHCR Handbook, generally speaking I again agree.
In my opinion the applicant's letter to his wife and his possessions and discussions with officials at the airport fall well short of an intention to mislead the department either about his immediate intentions or about the facts surrounding his potential safety in Sri Lanka if he is forced to return. Both may very well be correct on the facts and evidence available.
The general credibility of the applicant as an individual is only peripherally relevant. The question for my determination is whether a finding that the applicant did not leave and is not unwilling to return to his own country by reason of a genuine and well founded fear of persecution is, on the evidence, so irrational that it could not have been made by a reasonable person. That issue comes down to one simple question, viz. whether a person who was fleeing his own country and claiming refuge in Australia from the type of danger asserted by this applicant would be giving anyone, his own wife perhaps especially, the alternative much less compelling explanation that he was here because he wanted to study or become a business entrepreneur or operative, and to apply for permanent residency on such grounds. What is crucial is whether this claim of refugee status, otherwise so strongly pointed to by the proved or accepted facts, is effectively destroyed by the completely different claim made in the first instance and by the absence of even an oblique reference to the subject in the available spontaneous evidence.
It seems to me appropriate in this respect to take into account the UNHCR Handbook's timely and proper warning that a refugee's reactions upon arrival in the country of asylum may be so affected by fear, embarrassment and other factors as to dictate another claim being made first and the facts pointing to refugee status being secreted. But nothing the applicant put to the delegate, and nothing put before me, explains or answers this conundrum. At best study and business reasons would ordinarily obtain a limited staying time here; they may not include permission for the person's family and may have other limitations. Refugee status will usually mean permanent residence and comparatively easy permission to bring the family. It is anomalous in the extreme that the revelations at the airport, including the objective factors such as the applicant's possessions, would have supported the former but not even give a hint of the latter. The applicant had been in Indonesia before coming to Australia. He could not have feared the Sri Lankan authorities there in gathering material to give credence to his refugee status, and did not claim to do so. This is what presumably troubled the delegate. It has certainly caused me a major dilemma.
In Chan a Chinese national had escaped from China and claimed a fear of persecution on the basis of an apparent, though perhaps misconceived, perception that local authorities had of his family as being anti-government. The delegate rejected his claim for refugee status on the basis that he "may have been discriminated against to a limited degree due to the apparent perception the local authorities had of his family" but considered that "this did not amount to persecution within the terms of the Convention". The High Court rejected this contention. Chief Justice Mason held at 564:

...viewed in this light the decision of the delegate was so unreasonable that no reasonable person could have reached it. It seems that the delegate and, for that matter, the DORS committee, misconceived the concept of persecution under the convention. So much is evidenced in the confession that Mr Chan may have been discriminated against to a limited degree due to the apparent perception the local authorities had of his family and the assertion that this did not amount to persecution within the terms of the Convention. Just why discrimination of this kind did not amount to persecution was not explained by the delegate. Discrimination which involves interrogation, detention or exile to a place remote from one's place of residence under penalty of imprisonment for escape or for return to one's place of residence, amounts prima facie to persecution unless the actions were so explained that they bear another character.

His Honour went on:

It stands to reason that the (Chinese) authorities would be inclined to regard with suspicion and distrust a member of an anti-revolutionary family who was associated with a faction opposed to the government, even if his political opinions were not clearly defined or so clearly defined as to throw up an identifiable conflict with the political philosophy of the government.

Nothing in this case matches or calls for that process of reasoning. In the ultimate, this decision was based on factual and discretionary not legal grounds. The dreadful and tragic situation in Sri Lanka and the experiences of the applicant there led the delegate to the conclusions that the applicant would not be in danger if he returned, that there were therefore no grounds for genuine fear, and that his alleged fear was therefore not well founded. In my opinion these conclusions would have been unreasonable within Wednesbury principles were it not for the applicant's conduct and activity at the airport, the wife's letter and the other identified matters which led to the delegate's findings on credibility. I have little doubt that the reasons used by the delegate to explain his finding that the facts did not establish a real chance of persecution are so unjustified by the evidence as to have otherwise made the decision to refuse refugee status unreasonable. But despite the convoluted way in which the decision was expressed, the true conclusion from the evidence was that although there are objective grounds for fear, the applicant's claim to having left Sri Lanka and to being unwilling to return because of a real fear of persecution for his political beliefs, however well founded this fear would otherwise have been, was not to be believed.

In my opinion this conclusion was supported by evidence. It was arguable and was not extreme or bizarre. In the circumstances and on the available evidence, the decision to refuse refugee status was therefore not unprincipled or irrational, and was not tainted by relevant illegality. I cannot imagine that risk of persecution is truly the basis for the applicant having left his own country and being unwilling to return. If it were, it would have been the first, perhaps the only, certainly one thing said when or very soon after its well educated and politically experienced proponent set foot in this peaceful, stable, free country after a sojourn in another safe country to gather his thoughts and attain some capacity for calm rational contemplation. In the circumstances, the decision made by the respondent was probably the decision I would have made in the same position.
The application will be dismissed. In the circumstances, each party should pay his own costs.

Citations

Rienzie Patrick Premalal Kekulutotuwage Don v. Minister for Immigration, Local Government & Ethnic Affairs [1993] FCA 122 ((1993) 41 FCR 117; (1993) 31 ALD 339)

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[1993] FCA 122

10 MARCH 1993