Raghavan, Nadeswaran v Minister for Immigration & Ethnic Affairs

[1997] FCA 374

CATCHWORDS

MIGRATION - application for review of a decision of the Refugee Review Tribunal ("RRT") that the applicant is not a refugee - whether there is jurisdiction to review conduct of the RRT in respect of a judicially reviewable decision under the Administrative Decisions (Judicial Review) Act - jurisdiction limited to that conferred by Part 8 of the Migration Act - whether RRT failed to correctly apply the test of “well-founded fear” - whether RRT failed to consider the evidence - whether applicant’s fear of persecution was well-founded - consideration of evidence and the weight to be assigned is a matter for the RRT - decision available on the evidence

Migration Act 1958 (Cth) ss 5(1), 475, 476, 485

Migration Reform Act 1992 (Cth) s 39

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth) s 39B

Ozmanian v Minister for Immigration and Ethnic Affairs (1996) 137 ALR 103, cited

Minister for Immigration and Ethnic Affairs v Ozmanian (1996) 141 ALR 322, followed

Dai Xing Yao v Minister for Immigration and Ethnic Affairs (unreported, 18 September 1996), cited

Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693, cited

Chen v Minister for Immigration and Ethnic Affairs (unreported, 19 April 1996), cited

Parmakovski v Minister for Immigration and Ethnic Affairs (unreported, 22 April 1996), cited

Velmurugu v Minister for Immigration and Ethnic Affairs (unreported, 23 May 1996), cited

Chan v Minister for Immigration and Ethnic Affairs (1989)

169 CLR 379, cited

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

De Motte v Minister for Immigration and Ethnic Affairs (unreported, 8 May 1997), cited

NADESWARAN RAGHAVAN v

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and

MRS J A BUSS, CONSTITUTING THE REFUGEE REVIEW TRIBUNAL

No. NG 657 of 1995

Tamberlin J

Sydney

15 May 1997

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 657 of 1995

GENERAL DIVISION )

BETWEEN: NADESWARAN RAGHAVAN

Applicant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

First Respondent

MRS J A BUSS,

CONSTITUTING THE REFUGEE

REVIEW TRIBUNAL

Second Respondent

CORAM: TAMBERLIN J

PLACE: SYDNEY

DATED: 15 MAY 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

The application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 657 of 1995 GENERAL DIVISION )

BETWEEN: NADESWARAN RAGHAVAN

Applicant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

First Respondent

MRS J A BUSS,

CONSTITUTING THE REFUGEE

REVIEW TRIBUNAL

Second Respondent

CORAM: TAMBERLIN J

PLACE: SYDNEY

DATED: 15 MAY 1997

REASONS FOR JUDGMENT

TAMBERLIN J:

Introduction

This is an application for review of a decision of the Refugee Review Tribunal (the "RRT") made on 24 July 1995.

The RRT found that Mr Raghavan ("the applicant") was not a person to whom Australia has protection obligations within the meaning of the Refugees Convention and Refugees Protocol as defined by s 5(1) of the Migration Act 1958 (Cth) ("the Act").

The hearing before me took place on 25 June 1996. However, because an issue arose as to the effect of the decision of Merkel J in Ozmanian v Minister for Immigration and Ethnic Affairs (1996) 137 ALR 103 judgment was reserved pending the completion of the appellate process with respect to that decision. The decision of Merkel J was reversed by a unanimous Full Court in Minister for Immigration and Ethnic Affairs v Ozmanian (1996) 141 ALR 322. Special leave to appeal was refused by the High Court on 14 February 1997. Further written submissions in relation to the Full Court decision were received from both sides in February this year.

Background

The applicant is a Tamil citizen of Sri Lanka. He arrived in Australia with his wife, also a Sri Lankan Tamil, as a visitor in February 1990.

On 23 March 1990 the applicant claimed refugee status in Australia, this was deemed also to be an application for a Domestic Protection (Temporary) Entry Permit ("DPTEP"). On 22 October 1993 the applicant's claim for refugee status was rejected by a delegate of the Minister for Immigration and Ethnic Affairs ("the Minister"). No decision was made in relation to the claim for a grant of a DPTEP. Nevertheless, erroneous advice was sent to the applicant on 22 October 1993 which stated that decisions had been made to refuse both matters. On 5 November 1993 the applicant applied to the RRT for a review of both decisions. The applicant's wife was included in this application to review.

On 24 July 1995, the RRT upheld the decision of the Minister. The RRT accepted the whole of the applicant's evidence with respect to the relevant period prior to his leaving Sri Lanka, and found that the applicant entertained a subjective fear of harm on account of his political opinion. However the RRT was not satisfied that the fear was well-founded. A principal issue in this case is therefore whether the RRT ought to have been satisfied that the applicant's fear was "well-founded."

Legislation

Part 4B of the Migration Reform Act 1992 (Cth) ("the Reform Act") became Part 8, (ss 475-486) of the Act and received Royal Assent on 7 December 1992. The commencement of Part 4B was deferred by the Migration Laws Amendment Act 1993 (Cth) to 1 September 1994. These amendments will be referred to as the "September amendments".

Section 476 of the Act, after the September amendments, deals with and limits the grounds upon which "judicially-reviewable decisions" (which include decisions of the RRT) may be reviewed by the Federal Court. The present decision is such a decision. The section provides:

"(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b)that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)that the decision was not authorised by this Act or the regulations;

(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f)that the decision was induced or affected by fraud or by actual bias;

(g)that there was no evidence or other material to justify the making of the decision.

(2) The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a)an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b)an exercise of a personal discretionary power at the direction or behest of another person; and

(c)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d)taking an irrelevant consideration into account in the exercise of a power; or

(e)failing to take a relevant consideration into account in the exercise of a power; or

(f)an exercise of a discretionary power in bad faith; or

(g)any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).

(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." (Emphasis added)

Section 485(1) relevantly provides:

"In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions ... other than the jurisdiction provided by this Part..."

Section 39 of the Reform Act as amended by the Migration Legislation Amendment Act 1994 (Cth) (No 60 of 1994) provides that:

"If

(a) an application for:

(i)a determination by the Minister that a person is a refugee within the meaning of the Principal Act as in force immediately before 1 September 1994....

...

was made before that date; and

(b)before that date, the application has not been finally determined (within the meaning of the Principal Act);

then, on and after that date, the provisions of the Principle Act (including provisions relation to review of decisions) apply as if the application was an application for a protection visa (within the meaning of the Principal Act as in force on that date)"

Dai's Case

The issue of the jurisdiction of the Federal Court to review decisions of the RRT under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), where the application is filed prior to commencement of the 1992 amendments to the judicial review provisions of the Act, has been determined by the Full Court in the case of Dai Xing Yao v Minister for Immigration and Ethnic Affairs (unreported, 18 September 1996). In that case a judge of the Court ordered that the Court determine, as a separate question, whether an application to review a RRT decision should be dealt with under Part 8 of the Act, the ADJR Act or s 39B of the Judiciary Act.

Black CJ and Sundberg J concluded in Dai's case (at p12):

"Prima facie, therefore, s 39 [of the Reform Act] is inconsistent with the application proceeding unaffected by the deemed repeal of the ADJR Act and s39B effected by s 485(1), and thus expresses a contrary intention for the purposes of s 8 of the Acts Interpretation Act. That was the conclusion to which Lehane J came in Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693."

Their Honours found that the language of s 39 manifested in unmistakable and unambiguous language an intention to rebut the presumption against retrospectivity and the presumption against the ousting of the jurisdiction of the court.

The Court unanimously concluded that the RRT's decision is reviewable only under Part 8 of the Act

The position following the September amendments to the Act is summarised in the judgment of Black CJ and Sundberg J (at 4), as follows:

"It is sufficient to note:

(a)except for the case of actual bias, a breach of the rules of natural justice is no longer a ground

(b)'unreasonableness' in the Wednesbury sense is no longer a ground

(c)the improper exercise of a power no longer covers taking an irrelevant consideration into account, failing to take a relevant consideration into account, or an exercise of discretionary power in bad faith

(d)the error of law ground is restricted to cases where the error involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts."

The judgment in Dai accepted that Mahboob (135 ALR 693) and the other earlier first instance decisions which followed Mahboob such as Chen v Minister for Immigration and Ethnic Affairs (unreported, Tamberlin J, 19 April 1996), Parmakovski v Minister for Immigration and Ethnic Affairs (unreported, Davies J, 22 April 1996) and Velmurugu v Minister for immigration and Ethnic Affairs (unreported, Olney J, 23 May 1996) correctly applied the transitional provisions and the 1992 amendments to the Act.

As a result, the application for review of the decision of the RRT, in the present case, is only reviewable under Part 8 of the Act as set out above.

Present Application - grounds

The grounds of review as set out in the further amended application are:

"1. The conduct of the second respondent in determining that the applicant was not entitled to refugee status and the making of the decision were improper exercises of the power conferred by the enactment in pursuance of which the decision was purported to be made, because:

(a)the decision maker failed to take a relevant consideration into account in making the decision;

Particulars

The second respondent did not give proper consideration to evidence presented by the applicant concerning the activities of members of the Liberation Tigers of Tamil Eelam within the Colombo area.

(b)the exercise of the power was so unreasonable that no reasonable person could have so exercised it;

Particulars

The second respondent failed to correctly apply the test of a "well-founded fear of persecution" as stated in the High Court in Chan v Minister for Immigration.

2. The decision involved an error of law in that the respondent failed to correctly interpret the definition of a refugee contained in the Convention and Protocol Relating to the Status of Refugees, adopted into Australian law by s47(1)(d) of the Migration Act 1958 as in force at the time of the application.

Particulars

As for 1(b) above.

3. The decision involved an error of law in that the second respondent failed to consider, or to properly consider, all of the evidence presented by the applicant.

Particulars

(i)As for 1(a) above.

(ii)The second respondent could only have reached the conclusion that 'the evidence about human rights abuses and the activities of various factions in Colombo in 1989/90 does not support an inference that any risk of harm, such as to constitute persecution, to an EPRLF supporter (but not a member) was more than remote' if she had not given any real consideration to the evidence before her." (Original emphasis)

Ground 1 - Ozmanian

The Further Amended Application in this matter alleges that there was an improper exercise of power by the RRT in relation to the conduct as distinct from the decision of the RRT and that this conduct can be reviewed under the ADJR Act. The amendment was sought as a result of the decision of Merkel J at first instance in Ozmanian (137 ALR 103). However, since the hearing date of the present matter that decision has been reversed by a unanimous decision of the Full Court (141 ALR 322).

The law, as it now stands, is that s 485 of the Act excludes the jurisdiction of this Court to review decisions referred to in s 475(1) and (2) of the Act except for the jurisdiction conferred by Part 8 of the Act which narrowly delimits the available grounds for review.

Counsel for the applicant submitted, in further submissions of February 1997, that the reasoning of the Full Court in Ozmanian does not apply to the present case. The consequence of this submission is that the Court retains jurisdiction to review conduct under the ADJR Act in respect of judicially reviewable decisions and that the Court is not in substance prevented from considering the grounds excluded by s 476.

This submission is based on an assertion that the reasoning in Ozmanian only related to a decision which was not judicially reviewable because in that case the decision was made under s 417 of the Act: see S 475(2)(e).

In my view, this suggested difference does not give rise to any real distinction in principle. Section 485(1) in express and specific terms denies jurisdiction in respect of both judicially reviewable and non-judicially reviewable decisions. The critical language is to be found in the phrase "in respect of" and this applies to both classes of decision. On its correct interpretation it carries the reach of the exclusion beyond the decision to conduct leading up to decisions and precludes reliance on such conduct for the purposes of review. This was its intent and purpose. It extends to "conduct" leading to non-judicially reviewable decisions.

It is on the content and effect of this phrase that the conclusion was reached by the Full Court in Ozmanian. This Court cannot circumvent Part 8 of the Act and review the matter under the ADJR Act by having regard to conduct engaged in for the purposes of making the decision. As stated by Sackville J in Ozmanian, 141 ALR 322 at 344, with whom Jenkinson and Kiefel JJ relevantly agreed:

"Part 8 is intended to deal comprehensively with the procedures for and grounds of review of judicially-reviewable decisions. ... This elaborate set of provisions is scarcely compatible with a construction of s 485(1) that permits the court to review conduct leading to a judicially reviewable decision on grounds not provided for in Pt 8 and in accordance with procedures untrammelled by the restrictions imposed by Pt 8."

Accordingly, the submissions based on ground 1 of the application must fail.

Ground 2 - Well founded fear

The import of this ground is that the decision involved an error of law because the RRT failed to correctly interpret the definition of "refugee" contained in the Convention and Protocol Relating to the Status of Refugees, (the "Convention and Protocol"), adopted into Australian law by s 36(2) of the Act.

The particulars furnished as to this ground are that the RRT failed to correctly apply the test of a "well-founded fear" of persecution, as stated by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

The RRT reasons for decision commence with a reference to the Convention and Protocol. They then refer to the judgment of the High Court in Chan and consider the comments made in that case by the Court as to the term "well-founded fear". It is pointed out that the High Court in Chan held that a fear of persecution is well-founded if there "is a real chance that the refugee will be persecuted if he returns to his country of nationality", and that this conveyed the notion of a substantial, as distinct from a remote chance, of persecution occurring. It is pointed out in the reasons that a real chance of persecution may exist notwithstanding that there is less than a fifty percent chance of persecution occurring.

There then follows a consideration of the terms "being persecuted" or "persecution". The reasons note that these terms are not defined by the Convention, but that the High Court refers in Chan's case to "some serious punishment or penalty or some significant detriment or disadvantage" if the applicant returns to his country. This is further elaborated by reference to the High Court's comment that the "notion of persecution involves selective harassment" whether "directed against a person as an individual" or "because he is ... a member of a group which is the subject of systematic harassment". It is pointed out, in the reasons, that the harm may be less than loss of life or liberty and may include serious violations of core or fundamental human rights, such as access to employment; access to education; freedom of speech, assembly or worship.

As a result of these statements it cannot be said that the RRT failed to address the correct interpretation of the definition of "refugee" as explained by the High Court. A detailed examination of the material referred to in the reasons does not persuade me that the above tests were incorrectly applied to the facts. This is not a case, in my view, where the RRT has simply mouthed the correct principles but in substance has failed to apply them. The examination of the evidence in the reasons of the RRT in this matter is directed to a determination of whether there was more than a remote chance of persecution as at the date of its determination.

This ground is not made out.

Ground 3 - Failure to consider the evidence.

To determine whether this ground should succeed it is necessary to examine the approach taken and the reasoning adopted by the RRT.

The RRT begins by setting out the political background, referring to the ethnic divisions within the Sri Lankan state. The Tamil population is predominant in the northern and eastern provinces, with some Muslim and Sinhalese settlers in eastern coastal districts, border towns and some of the larger urban areas. The Sinhalese population is in the majority in the south and west, but there is a large Tamil minority in the capital, Colombo, which is in the western province. The RRT refers to the sporadic outbursts of inter-racial violence which have occurred since the 1950's with the rise of post-independent Sinhalese assertiveness. Political and ethnic tensions increased over the years, leading to warfare between the terrorist and separatist group, the Liberation Tigers of Tamil Eelam ("LTTE") or "the Tigers", and the Sri Lankan Armed Forces ("SLAF"). Major fighting commenced in 1987 when the Indian Peace Keeping Force ("IPKF") arrived and sided with the SLAF against the Tigers.

The RRT considered the continuing tensions and violence, describing the fighting and involvement of the various parties and factions through to early 1990. After a short-lived peace in 1989, war recommenced in June 1990, with the Tigers regaining accendance in the north and east. Reference is also made to the major political groups and their ideologies or philosophies.

Having considered the general political background and the state of violence and tension up to March 1990, the reasons for decision then examine in considerable detail, the particular circumstances of the applicant and his wife.

The applicant's first concerns arose as a result of the anti-Tamil riots in Colombo in 1983. He and his wife were unharmed but their house had been looted and set alight. Following these riots the applicant's wife's sister migrated to Australia, she and her family are now resident here. The RRT noted that the applicant had no further cause for alarm until 1989. In 1989 his long-term friendship with a spokesman for the Eelam Peoples Revolutionary Liberation Front ("EPRLF"), a separatist organisation with a Marxist philosophy and pro-Indian leanings, drew adverse attention to him. The spokesman and their families were close friends and, up to 1987, the applicant had assisted the spokesman by raising large amounts of money for the EPRLF.

In the mid-eighties the spokesman withdrew somewhat from Tamil politics, taking up a post with a European University. During this time he visited Sri Lanka and would stay with the applicant and his wife for a number of days. On one lengthy stay the applicant joined the spokesman in visits to university campuses and major northern and eastern provincial towns. The applicant began to be identified with the EPRLF and in particular with the spokesman.

The spokesman visited Sri Lankan in the latter half of 1989 at the invitation of the EPRLF to attend an all-party conference in Colombo. Following this visit enmity developed between the EPRLF and the Tigers. The applicant's friendship with the spokesman led to the applicant being accused by one person of assisting the EPRLF. The applicant's case, as disclosed in the reasons, is that he had a general reputation among Tiger supporters as being a close associate of the spokesman. He said that on one occasion he was followed when returning to his home and later saw a person watching that home.

Shortly after October 1989 he gave refuge to the Chairman of the North-eastern Provincial Council who was an EPRLF member and a close friend. The Chairman had fled from increasing attacks by the Tigers. The applicant was aware of increasing numbers of Tiger members in Colombo seeking members of anti-Tiger organisation who had sought refuge there. The applicant had reported to the police threats he had received. They told him he could attempt to take the matter further, but they implied that due to political sensitivities they may be unable to assist him. At this stage the applicant decided to leave the country.

The reasons record that the applicant stated that he had suffered no harm in spite of his fears prior to leaving Sri Lanka. Whilst in Sri Lanka, he had received a number of threatening phone calls. Two uninvited guests appeared at his brother's wedding and once he was followed home. His parents and siblings, still in Colombo, have not suffered because of their association with the EPRLF. The applicant, now in Australia, continues to remain in contact with the spokesman.

Since his arrival in Australia the applicant has had trouble mixing with ex-patriot Sri Lankans and has suffered from nightmares. He tendered a copy of a doctor's referral to a clinic in 1984. The doctor's letter indicated that he felt the incidents experienced by the applicant left permanent scars and fear in his mind and that he suffered from emotional trauma from which he would not recover in the near future.

The applicant tendered a letter from his solicitor of 29 May 1995 in which he stated that he had heard that the Tigers have a database with details of overseas Tamils, including their occupations and addresses. Some names on the list are marked for attention if they should return. He does not know whether his name is so marked, but he believes he is known to be hostile to the Tigers because he has not been approached by members of the Tigers who were collecting funds from Tamil families in Sydney.

The reasons record that his wife said that she had not realised what was happening at home nor the extent of her husband's involvement with the EPRLF. When she realised the difficulties they were getting into it was too late. She said that no organisation could assess better than an ordinary man what actions the Tigers might take in the future. She also stated that often the wives and families of suspected collaborators suffered more than the suspects.

The RRT then considered the fighting between the Tigers and the EPRLF in Colombo in 1989-1990. The reasons note that virtually all sources record human rights violations by the EPRLF and Tigers against civilians in the north-east rather than in Colombo or elsewhere. In Colombia extreme violence, including extra judicial killing occurred but was associated with the terrorist Sinhalese group, the Janatha Vimuthki Peramuna ("the JVP"), and the government's official and unofficial brutal response to the JVP. There was no claimed or apparent link between the applicant's case and the JVP other than that it was active at the same time he was threatened by the Tigers. The JVP, unlike the EPRLF, was opposed to the involvement of India in Sri Lankan affairs.

In specifically addressing the applicants case that the RRT first considered past persecution. It observed persecution must occur for a Convention reason and that in some circumstances where harm and deprivation is suffered by civilians, for example in a civil war, there may not be sufficient hardship to amount to persecution. Reference is made to a publication and a decision of the Federal Court.

The RRT accepted the whole of the applicant's evidence relevant to the period prior to his leaving Sri Lanka. This point is relied on by the applicant in the present appeal. The reason the applicant's evidence was accepted was that it was consistent with the publicly known position as regards politics at the time, the course of the war and the activities of the spokesman.

However, the RRT concluded that, although the applicant's fear was genuinely held as a subjective matter, it was not well-founded. The RRT gave two reasons for this conclusion. First, the applicant said that he had not actually been harmed following telephone threats. Second, evidence about human rights' abuses and the activities of various factions in Colombo in that period did not support the inference that the risk of harm was more than remote.

Attention is then directed to present and future persecution. This was seen to call for a consideration of the present status of ethnic and political conflicts in Sri Lanka. The RRT briefly examined the history of the fighting in Sri Lanka from 1990 onwards. It then considered potential persecution in those areas of Sri Lanka where the applicant might be able to live, whether he would be at risk in those areas and whether the State could protect him in those areas.

The RRT considered the position both generally and in particular in relation to the Jaffna Peninsula, the Eastern Province and Colombo. References are made in the course of this consideration to numerous information sources including newspapers, Department of Foreign Affairs and Trade publications, Asia Watch, United States Department of State Country Reports on Human Rights Practices, and other commentaries and studies of the Sri Lankan political and social situation.

The RRT concluded that, given the current situation in the Jaffna peninsula and the Eastern province, it would be unreasonable to require the applicant to reside in either of those areas. In relation to Colombo the conclusion was drawn that there continues to be a real chance that a young male Tamil will be stopped or detained for questioning by the security forces. This was considered to be a legitimate security precaution in times of civil war. Risk of unauthorised detention, mistreatment or even torture was considered to be slight given that the security forces now appeared to be more willing to abide by proper arrest and reporting procedures. For a person such as the applicant the conclusion reached was that since he comes from Colombo and has family and business connections there, additional risks were extremely remote.

It is noted that the applicant did not claim that security forces were of concern to him other than in the context of being routinely questioned.

The detailed submissions made on behalf of the applicant largely involved a re-canvassing of numerous documents and their content as to the political, social and religious forces prevailing in Sri Lanka. However, the consideration of these materials and the weight which ought to be assigned to them was a matter for the RRT and not for this Court. Accordingly, the challenge although asserted as a matter of legal error really raises a question of fact, degree and inference in circumstances where it has not been demonstrated that the conclusion reached or the reasoning applied was such as to amount to an error of law.

The conclusion reached by the decision-maker was that on all the evidence the applicant had a subjective fear of harm on account of his imputed political opinion but that the fear was not well-founded. In relation to the medical evidence tendered the decision-maker considered that it was directed to the subjective perception of the applicant but that it did not bear on the objective foundation for the fear. The reasons conclude that the risk of persecution at the time the applicant left his country was remote.

I am not persuaded that there has been any failure to properly consider the evidence presented by the applicant. The RRT reasons in this case impress me as thorough, balanced and well focused on the relevant principles. The conclusion reached was available on the evidence. I do not accept the contention that the RRT did not give "proper" consideration to evidence presented by the applicants and the activities of members of the Tigers in the Colombo area, or that the conclusion is so contrary to the evidence as to demonstrate that no real consideration was given by the decision-maker to the evidence of the specific circumstances of the applicant. In reaching this conclusion I am of course conscious of what recently fell from the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR at 259 at 271 ff.

In my opinion there is no substance in this ground.

Section 420

In his written submissions on Ozmanian, Counsel for the applicant referred to s 420(1) of the Act which requires the RRT to pursue the objective of providing a mechanism of review that is fair and just. The applicant contends that he has not been given substantial justice as required by s 420(2) of the Act.

Although differing views have been taken by members of this Court, it is my view that the provisions of s 420 do provide for "procedures", within the meaning of s 476(1)(a): see further De Motte v Minister for Immigration and Ethnic Affairs (unreported, Tamberlin J, 8 May 1997). In the present case I am of the opinion that there is nothing in the material or submissions made for the applicant to indicate that the decision of the Tribunal is not fair or just or that the Tribunal has not acted according to substantial justice and the merits of the present case.

Accordingly, for the above reasons I dismiss this application with costs.

I certify that this and

the preceding twenty-two (22)

pages are a true copy of the

Reasons for Judgment herein of

his Honour Justice Tamberlin.

Associate:

Date: 15 May 1997

Counsel for Applicant: Mr C R de Robillard

Solicitors for Applicant: Messrs Parish Patience

Counsel for Respondent: Mr R Beech-Jones

Solicitor for Respondent: Australian Government Solicitor

Date of Hearing: 25 June 1996

Date of Receipt of Final Submissions: 13 February 1997

Date Judgment Delivered: 15 May 1997