Seneviratne v Minister for Immigration and Multicultural Affairs

[1999] FCA 944

FEDERAL COURT OF AUSTRALIA

Seneviratne v Minister for Immigration & Multicultural Affairs [1999] FCA 944

MIGRATION - application for protection visa - review of decision of Refugee Review Tribunal - whether Tribunal failed to make or set out finding on applicant’s compound claim of detention, abuse and rape - whether rejection of first part of compound claim relieved Tribunal of need to make finding on second part.    

Migration Act 1958 (Cth) - ss 5(1), 36, 415(1), 430(1)(c), 475(1)(b), 476(1)(a), 476(1)(e), 476(1)(g), 476(4)(b), 486

Migration Regulations (Cth) - Sch 2, Subclass 866—Protection

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, followed
Re Richards; Cawley v Dacey (1939) 162 LT 47, cited
Abebe v The Commonwealth (1999) 162 ALR 1, cited
Teubner v Humble (1963) 108 CLR 491, cited

KANUWANA PATHIRANELAGE SANDRA GEETHANIE SENEVIRATNE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1047 of 1998

KATZ J

12 JULY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1047 of 1998

BETWEEN:	KANUWANA PATHIRANELAGE SANDRA GEETHANIE SENEVIRATNE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	KATZ J
DATE OF ORDERS:	12 JULY 1999
WHERE MADE:	SYDNEY

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1.   The application for review of the decision of the Refugee Review Tribunal given on 8 September 1998 be dismissed.

2.   The applicant pay the respondent’s costs of the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1047 of 1998

BETWEEN:	KANUWANA PATHIRANELAGE SANDRA GEETHANIE SENEVIRATNE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	KATZ J
DATE:	12 JULY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Section 486 of the Migration Act 1958 (Cth) (“the Act”) confers upon this Court jurisdiction with respect to “judicially-reviewable decisions”. Among the decisions which are reviewable by this Court in the exercise of that jurisdiction are decisions of the Refugee Review Tribunal (“the Tribunal”): see par 475(1)(b) of the Act.

2. In this proceeding, review of a decision of the Tribunal is sought.

3. The decision concerned is one which was made by the Tribunal on 8 September 1998, determining an application for review which had been made to it on 23 March 1998 by Ms Kanuwana Pathiranhelage Sandra Geethanie Seneviratne.  The Tribunal’s decision affirmed an earlier decision which had been made by a delegate of the Minister for Immigration and Multicultural Affairs (“the delegate” and “the Minister” respectively) on 17 February 1998, determining an application for a protection visa which had been made to the Minister by Ms Seneviratne on 11 July 1997.  The delegate’s decision on that application had been to refuse to grant it.

4. Protection visas are dealt with in s 36 of the Act, which provides as follows:

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

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

   (The Refugees Convention referred to in subs 36(2) of the Act is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, while the Refugees Protocol referred to is the Protocol relating to the Status of Refugees done at New York on 31 January 1967: see the relevant definitions in subs 5(1) of the Act. Subsequently in these reasons for judgment, I will refer to the Refugees Convention as amended by the Refugees Protocol simply as “the Convention”.)

5. As well as the criterion for a protection visa appearing in subs 36(2) of the Act, additional criteria for a protection visa also appear in Sch 2 to the Migration Regulations (Cth) (“the Regulations”), in a Part of the Schedule headed “Subclass 866--Protection”. However, for present purposes, the only relevant criterion is that set out in subs 36(2) of the Act. That criterion (just like those in Sch 2 to the Regulations) applies to decision-making by the Tribunal, just as much as it does to decision-making by the Minister: see subs 415(1) of the Act.

6. A necessary condition for Australia’s having protection obligations under the Convention to a non-citizen in Australia is that that non-citizen be a “refugee” within the meaning of Art 1A(2) thereof.  That provision defines a “refugee” to include a person who, owing to a 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 that person’s nationality and is unable or, owing to such fear, is unwilling to avail him/herself of the protection of that country.

7. Ms Seneviratne, who is a Sri Lankan national, claimed before the Tribunal to be a “refugee” within the meaning of Art 1A(2) of the Convention because she was outside Sri Lanka owing to a well-founded fear of being persecuted for a Convention reason and was unwilling, owing to such fear, to avail herself of the protection of that country.

8. In the statement of findings and reasons which it prepared in respect of its decision, the Tribunal summarised, under the heading “Claims and Evidence”, both the particular claims which Ms Seneviratne had made (both before it and before the delegate) and the evidentiary material in support of those claims.  Before me, Ms Seneviratne made no complaint that the Tribunal had committed reviewable error in the course of setting out that summary.  (Indeed, it appears to me that, when summarising, in written submissions which he filed in this Court on her behalf, the factual claims which Ms Seneviratne had made under the Convention, her counsel himself by and large précised the Tribunal’s summary.)  The Tribunal’s summary was as follows:

   “Ms Seneviratne is a Christian woman and a member of the group of Sri Lankans commonly referred to as Burghers….  In … [her] … application [to the Minister for a protection visa] and a written statement forwarded shortly afterwards she said that she was married to a Muslim man from Batticaloa. Her husband was in business with his brother-in-law (the husband of his sister) who was a Tamil.  They transported building materials between Batticaloa and Colombo.  In December 1996 the vehicle used in the business was searched by the police and found to contain chemicals used for manufacturing explosives.  Her husband and his brother-in-law were both arrested.  Her husband escaped from custody by paying a large sum of money to the police and then went into hiding.  His brother-in-law was never released. Her husband’s sister committed suicide because she could not bear the pain and shame of what had happened to her husband.  Following this police came to her home several times looking for her husband.  They told her that they believed her husband’s brother-in-law was in the LTTE [that is, the Liberation Tigers of Tamil Eelam].  They accused her husband of being an LTTE supporter and that [sic] of helping his brother-in-law for financial gain. The allegations against her husband were false and had been fabricated by the police because they believe he has LTTE connections.
   In May 1997 Ms Seneviratne herself was detained in a police station where she was abused and raped.  She was held for two weeks and told that she would be killed if she told anyone what had happened to her.  In her initial application she said that she sent a message to her husband through someone who had visited her at the police station and he came out of hiding and paid a bribe to the police to have her released.  In the later submission she said that she had learned that her husband had arranged her release through a person who knew the police officer in charge.  On the day of her release she received a message through a friend informing her that her husband had arranged for them both to leave the country.  On 7 July 1997 her husband told her to go to the airport the next day, which she did.  She saw her husband, but did not speak to him.  She cleared customs and was waiting for her husband in the departure lounge, but he was picked up by the police.  After she arrived in Australia she learned that he was in Army detention.  Ms Seneviratne said that she had been shunned by her family in Sri Lanka because she had married a Muslim.
   Ms Seneviratne … attended a hearing of the Tribunal on 3 September 1998. She said that neither she nor her husband had ever had any involvement in politics.  However, she said that her husband’s brother-in-law, who lived in the same house, was an LTTE supporter and contributed financially to the organisation.  She said that she had learned that he was an LTTE supporter at the time her husband was arrested.  Her evidence on this point was rather confused as she initially stated that she had received this information from her husband.  When I pointed out that this was in conflict with her earlier evidence which indicated that she had not spoken to her husband during this time, Ms Seneviratne said that she and her husband had spoken about it earlier.  When I pointed out that this was in conflict with the statement that she had only learned about her husband’s brother-in-law[’]s activities after they were arrested, she said that she had received this information through messengers.  She said that her husband and his brother-in-law had been carrying materials for the manufacture of explosives when they were arrested and claimed that they had been forced to do so by the LTTE.  She also said that she called Sri Lanka regularly and was told that her husband is still in custody.  She does not know if he has been charged with anything.”

9. Among the things which the Tribunal said in its statement of findings and reasons, under the heading “Reasons for Decision”, when dealing with the above claims and evidentiary material, was the following:

   “I did not find Ms Seneviratne to be a credible witness and I do not accept that her husband was detained by the police because he was suspected of involvement in the LTTE or because he was caught carrying materials used in the manufacture of explosives.”

10. Ms Seneviratne made no complaint before me that the Tribunal had committed reviewable error in the passage which I have just quoted from its statement of findings and reasons.

11. Another thing which the Tribunal said in its statement of findings and reasons, under the heading “Reasons for Decision”, when dealing with the above claims and evidentiary material, was the following:

    “Ms Seneviratne has given conflicting evidence on the circumstances of her husband’s alleged arrest.  In her written statement she claimed that he was arrested on false charges fabricated by the police because they suspected him of involvement in the LTTE.  At the hearing she had said that her husband had been involved in transporting materials for the LTTE and that he had been arrested when these materials were found.”

12. Ms Seneviratne also made no complaint before me that the Tribunal had committed reviewable error in that passage from its statement of findings and reasons.

13. I turn now to the final paragraph of the Tribunal’s statement of findings and reasons under the heading “Reasons for Decision”.  I will set out that paragraph immediately below.  When doing so, however, I will subdivide it into two paragraphs, which I will label “A” and “B” for ease of subsequent reference.  The Tribunal said,

    “[A] I do not accept that Ms Seneviratne’s husband was suspected of involvement with the LTTE nor that he was arrested because he and his brother-in-law were caught carrying materials used in the manufacture of explosives.  I therefore do not accept that Ms Seneviratne is at risk of arrest or other serious harm as a result of her husband’s real or suspected involvement with the LTTE.

    [B] Furthermore, even if I accepted that Ms Seneviratne’s husband had been arrested because he was caught transporting materials used in the manufacture of explosives and that she herself was questioned and detained as a result, I would not consider her to be at risk of persecution for a Convention reason on her return to Sri Lanka.  According to her evidence the police detained her because they wanted information on her husband.  If her husband is, as claimed, now in custody, then there is no reason to suppose that the police would have a continuing interest in her.”

14. It was pars A and B which I have just set out which formed the only focus of Ms Seneviratne’s attack on the Tribunal’s decision with respect to her.  That attack was in two parts: first, complaint was made of something which had not been said in par A; and, secondly, complaint was made, in a conditional way to which I will later refer, of something which had been said in par B.

15. As to that which had not been said in par A, it was argued that the Tribunal had not made, or, at least, had not set out in that paragraph, a finding on Ms Seneviratne’s claim that she had been detained and raped at a police station in May 1997. If the Tribunal had not made a finding on that claim, then, it was said, its decision had involved an error of law, being either an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by it: see par 476(1)(e) of the Act. If, on the other hand, the Tribunal had made a finding on that claim, but had failed to set out that finding in par A, then it had failed to observe a procedure that was required by the Act to be observed in connection with the making of its decision: see par 476(1)(a) of the Act, read together with par 430(1)(c) thereof.

16. I have already set out above the Tribunal’s summary both of the particular claims which Ms Seneviratne had made (both before it and before the delegate) and the evidentiary material in support of those claims.  I draw attention to the fact that included in that summary was a statement of Ms Seneviratne’s relevant claim, namely, “In May 1997 Ms Seneviratne herself was detained in a police station where she was abused and raped”.

17. That claim may be described as a compound claim: it was both a claim of detention and a claim of abuse and rape while in that detention.

18. I reject the submission which was made on Ms Seneviratne’s behalf before me that the Tribunal did not, in that part of its statement of findings and reasons headed “Reasons for Decision”, set out a finding on that compound claim or even make reference to it.  The Tribunal, in my view, did set out a finding on the first part of that compound claim, namely, the claim that Ms Seneviratne had been detained in a police station in May 1997.

19. Before drawing attention to that setting out of a finding on Ms Seneviratne’s detention claim, I consider it appropriate to repeat what was said by Brennan CJ and Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Their Honours there said that two propositions were well settled: first, that a court exercising a supervisory jurisdiction should not be concerned with looseness in the language or unhappy phrasing of the reasons of an administrative decision-maker; and, secondly, that the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. Their Honours then said (footnote omitted) that those well settled propositions,

    “… recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.  In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”

20. Reading the Tribunal’s statement of findings and reasons as I am required to do by reason of Wu’s Case, I find in par B a passage which, I consider, amounts to the setting out by the Tribunal of a finding that, contrary to the first part of her compound claim, Ms Seneviratne had not been detained in a police station in May 1997.  (Although counsel for Ms Seneviratne concentrated his attack before me on the absence from par A of any finding on the compound claim, I did not understand him to submit that, if such finding did appear somewhere else under the heading “Reasons for Decision” in the Tribunal’s statement of findings and reasons, it should be ignored for present purposes, nor would I have accepted such a submission, if it had been made.)

21. The passage in par B to which I refer is the opening clause of the first sentence thereof, which clause reads, “Furthermore, even if I accepted that Ms Seneviratne’s husband had been arrested because he was caught transporting materials used in the manufacture of explosives and that she herself was questioned and detained as a result …” (emphasis added).  The use in that clause of the subjunctive mood makes it plain that the Tribunal did reject that Ms Seneviratne had been detained as a result of her husband’s having been arrested because he was caught transporting materials used in the manufacture of explosives.  Further, given that the Tribunal had already rejected that Mr Seneviratne’s husband had been arrested for an alternative reason, namely, because he was suspected of involvement in the LTTE (see par 9 above), the obvious inference is that the Tribunal must also have rejected that Ms Seneviratne had been detained as a result of her husband’s having been arrested for that alternative reason.  Still further, since being caught carrying materials used in the manufacture of explosives and suspected involvement in the LTTE were the only two reasons which had been put forward by Ms Seneviratne for her husband’s arrest, the Tribunal was, by rejecting that Ms Seneviratne had been detained as a result of her husband’s having been arrested for either of those two reasons, in truth rejecting Ms Seneviratne’s claim that she had been detained as a result of her husband’s arrest.  Yet still further, since her husband’s arrest was the only reason put by Ms Seneviratne for her own detention, the Tribunal was, by rejecting Ms Seneviratne’s claim that she had been detained as a result of her husband’s arrest, in truth rejecting Ms Seneviratne’s claim that she had been detained in a police station in May 1997.

22. Since I have, in the preceding paragraph, made statements about the nature of the case made by Ms Seneviratne, it may be best if, rather than simply relying on the Tribunal’s summary which I have already set out in par 8 above, I set out what she actually had to say in her application for a protection visa and in her later supporting document.  (I make no reference to what she said at the oral hearing, because what she said at that hearing did not relevantly expand her case beyond that which had been set out in her application and later supporting document.)

23. In her application for a visa, in response to a question as to why she had left Sri Lanka, she first referred to the fact that “certain suspicious items had been found [by police] in the vehicle” used by her husband and his brother-in-law in their transport business and then said,

    “For this my husband & his brother-in-law (Tamil) was arrested by the police and detained.  They were accused of supporting the LTTE.  My husband escaped from detention by paying a big sum of money to a police officer.  Then he went into hiding.  My [for ‘My’, read ‘His’: see Re Richards; Cawley v Dacey (1939) 162 LT 47 at 48 (Ch D, Crossman J)] brother-in-law went missing. After this police came to my home several times and questioned where my husband is. They also said that he is a LTTE supporter. I did not tell about his whereabouts. They threatened me all the time. In May 1997 I was arrested and detained in a police station. The police officers abused me and raped me. They said if I complained to anyone I would be killed. I send a message to my husband through a visitor to the police. Husband came out of his hiding and bribed the police and got me released.”

1. Later in her application, in response to a question as to why she thought the Sri Lankan authorities would “harm/mistreat” her if she went back to Sri Lanka, she said, “They think that my husband is a LTTE supporter.  I was mistreated due to that suspicion.”  Still later in her application, in response to a question whether she thought the Sri Lankan authorities could and would protect her if she went back to Sri Lanka, she answered, “Definitely not”, and, when asked why not, she said, “The authorities themselves mistreated me and my husband.  They still suspect that my husband is a LTTE supporter and that I am harbouring him”.  (It is not easy to know what Ms Seneviratne intended to convey by her assertion that the Sri Lankan authorities still suspected that she was “harbouring” her husband, since she was obviously not in Sri Lanka and her husband was, on her case, still, so far she knew, in Army [sic] custody in any event, he having been detained by the police at the airport on the day on which she had left Sri Lanka.)

2. Turning now to Ms Seneviratne’s later written document in support of her application, in it, she said,

   “In December 1996 his [that is, her husband’s] vehicle, was carrying building material was stopped and checked by the police at a check point on their [that is, her husband’s and his brother-in-law’s] way to Colombo.  Chemicals used for manufacturing explosives were found in the vehicle and my husband and his brother-in-law were arrested by the police.
   They were brought to Boreal police and was detained there for one month.  In the beginning of January my husband’s friends influenced the police and arranged to pay a large bribe as a result of which he was released. Immediately after he was released he disappeared.  He was frightened that they might come back to get him.  He was accused of supporting the LTTE.
   After my husband disappeared, in February the police came in search of him again.  I was questioned and harassed.  Several times the police visited my home and wanted to know about my husband’s whereabouts.  I did not tell them.
   In May 1997 I was arrested by the police.  I was told that they had information that my husband’s brother-in-law was a LTTE supporter and my husband helped him for financial gain.  I denied all those allegations and I was severely harassed.  I was raped by two police officers on the first night at the police station.  During day time I was humiliated and abused.  I suffered mentally and physically as a result of the most degrading treatment I received at the hand of the police officers.
   I was detained for two weeks and was released.  I later learned it was my husband who arranged for my release through another person who knew the police officer in charge.”

3. I consider that the material which I have set out in the preceding three paragraphs justifies the views which I expressed in par 21 above that Ms Seneviratne’s case had been that the reason for her husband’s arrest had been either his having been caught carrying materials used in the manufacture of explosives or his having been suspected of involvement in the LTTE and that her case had also been that the reason for her arrest had been his arrest.  I add that I reject the submission, set out in the written submission made on behalf of Ms Seneviratne and repeated orally, “that the Applicant claimed that her detention was related to links both to her husband and to her [sic] brother-in-law” (underlining in original).  I do not read in that way the material which I have set out in the preceding three paragraphs and, perhaps more to the point, it was certainly open to the Tribunal not to read it in that way.  I note in particular in that connection Ms Seneviratne’s claim in her application for a protection visa that she had been “mistreated due to” a suspicion on the part of the Sri Lankan authorities that, “… my husband is a LTTE supporter” (my emphasis).

4. Given that the Tribunal, without legal error, rejected the first part of Ms Seneviratne’s compound claim of detention and of abuse and rape while in that detention, there was, in my view, no need in the circumstances for the Tribunal to make a finding on the second part of that compound claim, namely, of abuse and rape while in that detention.  Rejection of the first part of that compound claim necessarily involved rejection of the second part.

5. In the course of his submissions before me, counsel for the Minister, as well as urging on me the conclusion which I have expressed in the preceding paragraph, also took me to par 85 of the joint reasons for judgment of Gleeson CJ and McHugh J in Abebe v The Commonwealth (1999) 162 ALR 1 at 26. Their Honours were there dealing with a female refugee claimant who had made a compound claim of detention and of rape while in detention. They said,

   “Once the tribunal was unable to find that she had been arrested as claimed, her further claims of detention and rape became logically irrelevant.  The tribunal … was not then required to act on her allegations of detention and rape, allegations which were dependent on her claim of being arrested and taken into custody for reasons of political opinion.  The tribunal was not bound therefore to make any express finding as to whether she had been raped.”

   (As counsel obviously considered it useful to take me to the passage just quoted, he might also have taken me to par 298 of the reasons for judgment of Callinan J (at 77), in the course of which his Honour said, “If there had been no detention, then abuse during it could not have occurred….”)

6. I told counsel during argument that I did not understand why I was being taken to the passage which I have quoted above and I continue to have the same difficulty.  His doing so reminds me of what Windeyer J had to say about somewhat similar conduct by counsel in a motor vehicle negligence case, Teubner v Humble (1963) 108 CLR 491 at 503-04:

   “I should add that we were referred by counsel to a number of decisions in other cases of road accidents.  But decisions on the facts of one case do not really aid the determination of another case.  Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law.  Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application that a pedestrian is always entitled, or that a motorist is always obliged, to act in some particular way.  That would lead to the substitution of a number of rigid and particular criteria for the essentially flexible and general concept of negligence.  Perhaps the tendency to this has come about because so many common law actions are now tried by judges instead of by juries.  Judges give reasons for their decisions and their reasons get into law reports; and lawyers, accustomed to arguing from precedents, are inclined, as this case shows, to quote the reasons that one judge has given for his finding of fact in one case to other judges in other cases.  Lord Somervell and Lord Denning each referred to the unfortunate consequences of this in Qualcast (Wolverhampton) Ltd. v. Haynes [1959] A.C. 743, at pp. 757-759. And I would respectfully echo what their Lordships said, especially the passage quoted from the judgment of du Parcq L.J in Easson v. London & North Eastern Railway Co. [1944] 1 K.B. 421 that, ‘There is a danger, particularly in these days when few cases are tried by juries, of exalting to the status of propositions of law what really are particular applications to special facts of propositions of ordinary good sense’ [1944] 1 K.B., at p. 426. For these reasons I refrain from discussing in detail the cases that were cited by Dr. Bray.”

7. To my mind, the same process deprecated by Windeyer J in that case was being engaged in by counsel for the Minister in this. I do not understand what Gleeson CJ and McHugh J said in Abebe (and what Callinan J said likewise) to be anything more than the particular application to special facts of a proposition of ordinary good sense, whereas counsel was seeking, it seems to me, to exalt it to the status of a proposition of law.  I reach the conclusion which I have expressed in par 28 above, not because authority demands it, but because reason does so.

8. Having rejected Ms Seneviratne’s complaint of something which had not been said in par A of the Tribunal’s statement of findings and reasons (which paragraph I have set out in par 13 of these reasons), I turn now to her complaint of something which had been said in par B (which paragraph I have also set out in par 13 of these reasons).

9. The subject of the complaint was the Tribunal’s assertion in par B, “According to her evidence the police detained her because they wanted information on her husband”. According to the written submissions made on her behalf (which submission was repeated orally),

   “[I]t was not her evidence that the police detained her to obtain information concerning her husband….  Thus, if this be the only basis on which the RRT decision can be supported, then it is submitted that the requirements [sic] of s.476(1)(g), as expanded [sic] by s.476(4)(b), are made out….” (second emphasis added)

10. I mentioned in par 14 above that Ms Seneviratne’s complaint about par B was made in a conditional way. As I understood the argument, it was that, on the assumption that I accepted the complaint which she was making that the Tribunal had erred in not making or, alternatively, setting out a finding on her claim that she had been detained and raped at a police station in May 1997, I could not conclude that such error was immaterial because the Tribunal had, in par B, in any event given an acceptable alternative justification for its conclusion that Ms Seneviratne was not a refugee. I could not do so, so the argument went, because par B did not contain an acceptable alternative justification for the Tribunal’s conclusion that Ms Seneviratne was a refugee. Paragraph B suffered from its own reviewable error, namely, that the Tribunal had found that Ms Seneviratne’s evidence had been that the police had detained her because they wanted information on her husband when: first, there was no evidence that that had been her evidence; and, secondly, that had not been her evidence: see par 476(1)(g) of the Act, read together with par 476(4)(b) thereof.

11. It is sufficient for me to say, by way of disposing of Ms Seneviratne’s second complaint, that, since the condition upon which it was being put forward was not in the result satisfied, it is unnecessary for me, in the circumstances,  to deal with it.  At the same time, however, I will add two things: first, I find it difficult to see how the “no evidence” ground of judicial review can apply to an alleged misconstruction by a fact finder of a particular item of evidence; and, secondly, in my view, Ms Seneviratne’s evidence was open to the construction that she had asserted that police had detained her in order to obtain information about her husband.

12. In the result, Ms Seneviratne’s application is dismissed with costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Dated:             12 July 1999

Counsel for the Applicant:	Mr R Beech-Jones
Solicitor for the Applicant:	Nan Solicitors
Counsel for the Respondent:	Mr G T Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 June 1999
Date of Judgment:	12 July 1999