VELLUPILLAI Arulampalam Thambythurai v Minister for Immigration and Multicultural Affairs

[1997] FCA 998

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - review of decision of Refugee Review Tribunal - whether Tribunal failed to act according to “substantial justice” - whether failure to do so is a ground of review under s 476(1)(a) of the Migration Act 1958

ADMINISTRATIVE LAW - whether evidence to justify the decision - whether erroneous finding of fact was critical to the decision

Migration Act1958 (Cth) ss 420(2)(b), 476(1)(a),(f), and (g), 476(4)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331
Chan Yee Kimv Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 144 ALR 567
Mok Gek Bouy v The Minister for Immigration, Local Government and Ethnic Affairs (1993) 47 FCR 1
A v Veterans Review Board (1995) 59 FCR 195
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228
Bouton v Labiche& Ors (1994) 33 NSWLR 225
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 discussed
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980-1981) 147 CLR 297 applied
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 discussed
Pearlman v Harrow School Governors [1979] 1 QB 56
Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374
Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1987) 13 FCR
Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 followed

VELLUPILLAI ARULAMPALAM THAMBYTHURAI & Anor v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & Anor
VG 662 of 1996

FINKELSTEIN J
MELBOURNE

16 SEPTEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY  VG662 of 1996

GENERAL DIVISION

BETWEEN:  VELLUPILLAI ARULAMPALAM
  THAMBYTHURAI and
  INDRANI THAMBYTHURAI
  Applicants

AND:  MINISTER FOR IMMIGRATION AND
  MULTICULTURAL AFFAIRS and J VRACHNAS
  Respondents

JUDGE:  FINKELSTEIN J
DATE OF ORDER:            16 SEPTEMBER 1997
WHERE MADE:                 MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The first applicant pay the respondents’ costs of and incidental to this application including any reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY  VG662 of 1996

GENERAL DIVISION

BETWEEN:             VELLUPILLAI ARULAMPALAM
  THAMBYTHURAI and
  INDRANI THAMBYTHURAI
  Applicants

AND:  MINISTER FOR IMMIGRATION AND
  MULTICULTURAL AFFAIRS and J VRACHNAS.
  Respondents

JUDGE:  FINKELSTEIN J
DATE:  16 SEPTEMBER 1997
PLACE:  MELBOURNE

REASONS FOR JUDGMENT

HIS HONOUR:  For many years there has been civil war in Sri Lanka.  The forces opposed to the elected government are led by an organisation known as the Liberation Tigers of Tamil Eelam (LTTE).  LTTE members are Tamil people who comprise a distinct ethnic group in Sri Lanka.  LTTE is most active in its resistance to government forces in the northern and in the eastern parts of Sri Lanka where it seeks to establish an autonomous Tamil State.  But it engages in guerilla warfare in other parts of the country as well, including the capital Colombo.

The applicant, Vellupillai Arulampalam Thambythurai, is a Tamil and a national of Sri Lanka.  He was born on 17 October 1928 and for many years lived in Jaffna.  The applicant left Jaffna in 1949 and moved to Colombo.  There he was employed as a public servant, his last position being with the Immigration and Emigration Department.  He was forced into early retirement in 1986.

On 11 September 1995 the applicant applied to the Minister for Immigration and Multicultural Affairs (the Minister) for the grant of a tourist visa.  The purpose was for the applicant to be in Australia on 16 December 1995 to attend the christening of his grandson and to spend Christmas with his grandson, his daughter and his son-in-law all of whom live in Australia.  When the application was made the applicant’s wife Indrani Thambythurai was in Australia for the birth of her grandchild.  In support of his application for a tourist visa the applicant provided information to the Minister which included details of his business activities in Sri Lanka.  He described his business activities as including “foreign investment and business consultancy for foreign visitors, joint venture projects and financing of projects”.  He provided supporting documentation relating to these activities.  A tourist visa was granted and the applicant came to Australia on 10 October 1995. 

On about 18 October 1995 the applicant applied to the Minister for the grant of a protection visa: see ss 36 and 65 of the Migration Act1958 (Cth) (“the Act”). A criterion for the grant of a protection visa is that the applicant is a non-citizen to whom Australia has protection obligations under the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees: see s 36(2) and the definition of Refugees Convention and Refugees Protocol in s 5 of the Act. By the Convention as amended by the Protocol, Australia has protection obligations to an applicant if the applicant:

“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, he is unable or, owing to such fear, is unwilling to return to it.”

As was explained by McHugh J. in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 at 354:

“The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return.  Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the state either encourages or is or appears to be powerless to prevent that private persecution.”

The basis for the application was that the applicant feared returning to Sri Lanka because he would face “continued harassment and persecution simply because (he was) Tamil”.  He stated in the application that “government death squads ... take Tamils off the streets and interrogate, torture and execute them regardless of their actions or opinions” and that he feared one day his “body will wash up in a stream or be left by the roadside by the special task force”.  In a written “personal statement” submitted on 19 December 1995 in further support of his application the applicant provided details of “specific incidents in the recent past whereby (the applicant had) personally experienced possible danger to (his) life”.  These incidents were put forward to show that not only was the government indiscriminately harassing Tamils living in Colombo, whether or not they were members of or provided assistance to the LTTE, but also to show that the government was unable to protect Tamils from threats and intimidation by the LTTE and the police.  It is helpful if I set out a short summary of these incidents.

On 23 June 1995 three police officers came to the applicant’s apartment and conducted a search of it looking for evidence of contact with the LTTE.  When nothing was found the officers left.  On 12 August 1995 three young men claiming to be members of the LTTE came to the applicant’s apartment and demanded 2000 rupees to support the insurgency.  No money was paid that day but when these men returned two days later they were given 1000 rupees by the applicant.  They threatened to have the applicant killed if he did not pay them 2000 rupees per month.  On 26 August 1995 the applicant was travelling on a bus some six kilometres from Colombo.  Government soldiers stopped the bus and checked the identity cards of all the passengers.  The applicant and five other Tamils were taken from the bus to a nearby police station where the applicant was detained for about two hours.  He was released after explaining that he was travelling to meet a business associate.  On 12 September 1995 the applicant was travelling in a trishaw with a friend when it was stopped by government soldiers and police officers.  The trishaw was searched and the applicant was questioned.  Some threats were made.  He was detained for about an hour until a senior police officer allowed him to leave.  Finally on 18 August 1995 two men in civilian clothing came to the applicant’s apartment.  They identified themselves as police officers and alleged that the applicant had assisted the LTTE in various ways.  They searched the applicant’s apartment but found nothing to connect him with the LTTE.  They then demanded money and the applicant gave them 5000 rupees.  The men threatened to detain the applicant if he remained in his apartment.  After that night the applicant no longer resided in his apartment and on 9 October 1995 left Colombo to travel to Australia.

The applicant’s wife also provided the Minister with a written “personal statement”.  In that statement she described two events, one that occurred on 10 June 1995 and the other that occurred on 22 June 1995, which were said to evidence the persecution of Tamils in Sri Lanka.  On each occasion the applicant’s wife was stopped by soldiers or police officers and asked to produce her identity card and to provide an explanation for her movements.  Upon a satisfactory explanation being provided the applicant’s wife was allowed to go on her way.

It will be noted that each of the incidents in which the applicant and his wife were involved occurred in 1995.  The applicant was quite forthright in conceding that before 1995 he and his wife had lived in relative peace and comfort.  However, the position changed in April 1995 when, after a short period of truce between the government and the LTTE, the civil war was renewed with some intensity.

A delegate of the Minister considered the application for the protection visa and on 21 May 1996 decided that it should not be granted.  The applicant then applied to the Refugee Review Tribunal for a review of the delegate’s decision.  On 30 September 1996 the Tribunal affirmed the decision of the delegate and provided reasons for its decision.  For present purposes it is sufficient to summarise those reasons without setting out in detail the findings of fact made.   

The Tribunal accepted, so it seems, that the applicant genuinely held a fear that he would be mistreated if required to return to Sri Lanka.  The types of mistreatment he feared were that he might be accused by government forces of assisting the LTTE, that the LTTE might pressure him to assist its members to flee Sri Lanka or travel abroad for training, that he might be harassed by police and government officials and that these people and LTTE members might demand money of him because they perceive him to be a wealthy businessman.

However, as the Tribunal observed, the question it had to consider was whether the applicant had a “well founded fear of persecution” which not only required the applicant to have a subjective fear but for there to be evidence indicating there was a real ground for that fear: see Chan Yee Kimv Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 per Mason CJ, at 396 per Dawson J, at 406 per Toohey J, at 413, 415 per Gaudron J and at 429 per McHugh J and Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 144 ALR 567 at 576-577 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. That required the Tribunal, among other things, to “look at the future insofar as was reasonably foreseeable” in order to determine how well founded was the fear: Mok Gek Bouy v The Minister for Immigration, Local Government and Ethnic Affairs (1993) 47 FCR 1 at 65-67 (on appeal (1995) 55 FCR 375). The Tribunal also had to consider whether the well founded fear of persecution was for a Convention reason.

The Tribunal found that “neither the applicant nor his wife face a real chance of persecution for a Convention reason and therefore they are not persons to whom Australia has protection obligations under the Convention and Protocol...”  Accordingly, the Tribunal affirmed the decision not to grant a protection visa to the applicant.

The reasons of the Tribunal show that this determination had three bases.  First, the Tribunal did not accept that there was any objective foundation for a fear of persecution by the government.  Although this was put in various ways, three passages from the reasons of the Tribunal should be set out.

The first passage reads:

“The Tribunal notes that the Applicant retired with a pension, ... still has a national identity card which states that he is a civil servant and, after his retirement, immediately set out on a course of private enterprise, pursuant to which he has described himself as a “successful” and “wealthy” businessman.  The information he provided to the Australia Embassy in Colombo, in respect of his application for a visitor’s visa, and evidence he has submitted in support of his refugee claims, indicate that he continued to have high-level relationships with Sri Lankan officials in representing the interests of oversees companies in undertaking major, high profile projects in Sri Lanka.  His visitor visa application, signed on 11 September 1995, states he was employed at that time.  He described to the Tribunal one occasion when he wished to meet a Minister of the Government and had to go to the minister’s residence as there were too many complications with security arrangements for the meeting to take place in a hotel.  He spoke of another venture where he stood to earn a half per cent commission on a multi-million dollar project and he referred to the regular liaison with a Government Board of Investment and senior officials.  While he may not have wished to take an early retirement, the circumstances of his retirement do not support a conclusion that he was a victim of persecution on account of his race and his subsequent business history demonstrates that the Sri Lankan authorities have encouraged, rather than restricted his opportunities to pursue a livelihood, notwithstanding that he is a Tamil.”

The second passage reads:

“The Tribunal does not believe that there would be renewed suspicions that he (the applicant) was assisting Tamil terrorists in 1995.  Nor does it believe that government organisations would continue to treat with him on large international contracts if he was under any suspicion of assisting the separatist cause.  (I)f any security officials seriously believed that the applicant was involved in actively supporting an organisation that was killing their members, it is absolutely implausible that they could be brought (sic) off with a small bribe of 5000 rupees.  When this was suggested to the Applicant, he indicated that the security officials did not believe he actually assisted terrorists but only made those accusations to extort money from him.”

The third passage reads:

“(The Applicant’s) business documents, provided in support of his application for a visitor’s visa, demonstrate he continued to be involved in large-scale business activities well into 1995, some of which involved close relations with government organisations.  He has held a passport for many years and it has been renewed in Colombo, as has his spouse’s.  He has been a senior civil servant and a businessman and appears to have many political and bureaucratic contacts in Colombo.”

The second basis for the decision was that the Tribunal did not accept that the conduct of government soldiers and police in searching the applicant’s apartment and stopping him whilst he was travelling to check his identity amounted to persecution in the relevant sense.  Rather, the Tribunal described this conduct as legitimate security measures taken during a period of civil war.

Finally, the Tribunal rejected the contention that extortion, whether by the police or by the LTTE, occurred because the applicant was a member of a particular social group.  The Tribunal found that “the applicant was targeted for financial demands because he was perceived to be wealthy and not because he is a Tamil”.

The applicant now applies under s 476(1) of the Act to review the decision of the Tribunal. By his amended application for review the applicant relied on each ground of review given by
s 476(1) other than s 476(1)(f) (fraud or bias). However, during the course of the proceeding counsel for the applicant confined his submissions to only two grounds. The first was that the procedures required by the Act to be observed were not observed: s 476(1)(a). In this connection it was submitted that the procedures to be observed included the “procedures” imposed by s 420(2)(b). The second ground was that there was no evidence to justify the decision of the Tribunal: s 476(1)(g). I propose to say something about aspects of the first ground before dealing with the substance of the submissions made in support of each ground. The relationship between s 476(1) and s 420(2)(b) has now been considered in many cases. Different views have been expressed about that relationship by members of the Court. Even where there has been agreement on outcome the reasons that have been given are diverse. In these circumstances I feel some justification, but much trepidation, in expressing my own views on the matter. I do so for the reason that the ultimate resolution of this particular issue is important both for the Tribunal, because the content of its obligations must be clearly established, and for those seeking to challenge the decisions of the Tribunal, because it is unsatisfactory that the grounds of review be in doubt. It will be seen that certain of my views coincide with those of other members of the Court especially Burchett J in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621.

The Act does provide for procedures of the Tribunal: see for example ss 425, 426, 427 and 428. Section 476(1)(a) permits a review of a decision of the Tribunal if the “procedures that were required by (the) Act to be observed ... in connection with the making of a decision (by the Tribunal) were not observed.” In this context there are three issues that arise for determination in a consideration of the first ground. The first is whether s 420(2)(b), which provides that the Tribunal “must act according to substantial justice and the merits of (a) case”, imposes any obligation on the Tribunal. The second is whether the obligation (if any) imposed on the Tribunal is an obligation to observe or comply with procedures. The final issue is whether a failure to observe the procedures (if any) imposed on the Tribunal by
s 420(2)(b) is a ground of review under s 476(1)(a).

An instruction to “act according to substantial justice and the merits of (a) case” is occasionally given to administrative tribunals established by Commonwealth legislation.  The War Pensions Entitlement Appeal Tribunal and the War Pension Assessment Appeal Tribunal are early examples:  see s 45A(2) of Act No. 14 of 1929 which provides that those appeal tribunals “shall act according to substantial justice and the merits of the case”.  In R v War Pensions Entitlement Appeal Tribunal:  Ex parte Bott (1933) 50 CLR 228 at 249 Starke J said that s 45A(2) imposed “a duty” on the War Pensions Entitlement Appeal Tribunal and at 256 Evatt J (who was in dissent on other issues) said that the section constituted “an overriding statutory command” governing the conduct of proceedings before that tribunal. There is no doubt in my mind that s 420(2)(b) imposes an obligation on the Tribunal.

The nature of that obligation is a matter of some difficulty.  One possible construction of

s 420(2)(a) is that two discrete obligations are imposed on the Tribunal. The first obligation, to act according to substantial justice, might be thought to deal with procedures and include the traditional concepts of procedural fairness (audi alteram partem and nemo debet esse judex in propria causa) at least to the extent that those requirements have not been superseded by the Act: see A v Veterans Review Board (1995) 59 FCR 195 at 198-9 per Hill J and R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott supra especially at 256. This first obligation may be broader than procedural fairness: compare Bouton v Labiche& Ors (1994) 33 NSWLR 225 at 241-42 where Kirby P thought that an order obtained by fraud is an example of what is contrary to substantial justice. The second obligation, to act according to the merits of a case, might be thought to concern itself with the outcome of the case remitted to the Tribunal. Thus, a requirement that a case be determined “according to the merits” could impose a substantive obligation namely that the case be determined without error of law and without error of fact. If that is also a procedural obligation the right to review will be indistinguishable from a general right of appeal: compare Norbis v Norbis (1986) 161 CLR 513 at 519-520. The possibility that s 420(2)(b) imposes two obligations was rejected by Hill J in Eshetu v Minister for Immigration and Ethnic Affairs & Anor. 142 ALR 474 at 484-5 one reason being that it might allow a merits review. Another possible view of s 420(2)(b), and the one that I prefer, is that only one obligation is imposed which is an obligation to act in a manner Deane J in Australian Broadcasting Tribunalv Bond (1990) 170 CLR 321 at 366-367 referred to as “acting judicially”. The precise content of an obligation to act judicially is dependant upon the terms of the statute creating the tribunal. But, subject to the terms of the relevant statute, the ordinary incidents of a duty to act judicially include “the absence of the actuality or the appearance of disqualifying bias and the according of an appropriate opportunity of being heard” (Bond at 367) in conformity with the traditional rules of procedural fairness. The most important incident is the requirement to act rationally and reasonably. As Deane J explained in Bond at 367:

“[A] duty to act judicially ... excludes the right to decide arbitrarily, irrationally or unreasonably.  It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored.  It excludes the right to act on preconceived prejudice or suspicion.  Arguably, it requires a minimum degree of “proportionality” ... (T)here will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.”

By this approach, the duty to “act according to substantial justice and the merits of (a) case” is a duty to adopt and apply all those procedures that are necessary to ensure, so far as may be possible, that a decision-maker is able to arrive at a decision that is both just and in accordance with the merits. In passing I note that I have not relied on the explanatory memorandum relating to the Bill that introduced s 420 and other sections into the Migration Act to construe s 420. It seems to me that an explanatory memorandum cannot be used to construe a provision which is the same as a provision in earlier Acts except to show that the meaning has changed.

Ordinarily it would be expected that if, in arriving at a decision, the Tribunal failed to observe a procedural obligation that is imposed on it by s 420(2)(b), or indeed any other section of the Act, that decision would be reviewable under s 476(1)(a). However, that result is not altogether certain. The uncertainty arises because each ground of review provided by s 476(1) is, as the opening words of the subsection declare, “(s)ubject to subsection (2)”. That subsection reads:

“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.”

The effect of the subs (2) is to limit the grounds upon which a decision of a Tribunal can be reviewed. But what is not clear is whether s 476(2) has the consequence that a failure to observe required procedures is only reviewable under s 476(1)(a) when those required procedures are not of a character similar to the rules of natural justice or the procedures that should be observed to avoid an irrational decision. In considering this it is convenient to pass over s 420(2)(b) for a moment and look at the obligation imposed on the Tribunal by s 425(1). That subsection allows an applicant to appear before the Tribunal and give evidence. It plainly imposes duties on the Tribunal of a procedural kind (see Minister for Immigration and Ethnic Affairs v Guo 142 ALR 567 at 587 per Kirby J) with corresponding rights in an applicant. Those rights would properly be characterised as part of the common law rules of natural justice if they were not found in a statute. What would happen if, in breach of s 425(1), a Tribunal refused to allow an applicant to give evidence in support of his or her application for a protection visa? Can the applicant rely on s 476(1)(a) to review an unfavourable decision of the Tribunal? If, on the ordinary meaning of s 476(2), the position is that an applicant is unable to review a decision of the Tribunal in the supposed circumstance, that result would be both absurd and unjust. It would mean that an express obligation imposed on the Tribunal in relation to the conduct of proceedings before it can be ignored without legal consequence in so far as the validity of the decision is concerned. That could hardly have been the intention of the Parliament in the case of a failure to observe s 425(1). Accordingly s 476(2) should be given a construction that will avoid this result if that is possible: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980-1981) 147 CLR 297 at 305 per Gibbs CJ and at 321-322 per Mason and Wilson JJ; Saraswati v R (1990-1991) 172 CLR 1 at 22 per McHugh J; Kingston v Keprose (1987) 11 NSWLR 404 at 422. Further, there is no reason to differentiate between the requirements imposed on the Tribunal by s 425(1) and those imposed by other procedural sections such as s 420(2)(b). In every case where there is a failure to observe a required procedure, s 476(2) will not deny an applicant the ability to rely on s 476(1)(a) to review a decision that is arrived in consequence of that failure. The appropriate field of operation for s 476(2), in my opinion, is in respect of non-statutory obligations that are imposed on the Tribunal such as by the common law.

There is another and more straight forward basis for holding that s 476(2) does not limit in any way the scope of s 476(1)(a). Procedures that must be observed because the Act so provides can not, regardless of their character, be described as rules of natural justice or procedures to avoid an irrational decision. They are no more or less than statutory obligations. They may be similar in content to common law obligations but they are of a wholly different kind. On that basis s 476(2) is not concerned with them because they fall outside the language employed.

As I have already said some aspects of the effect and relationship between s 420(2)(b) and
s 476(1)(a) have been considered on a number of occasions and different views have been expressed. Recently there is the decision of the Full Court in Eshetu, supra. In that case Davies and Burchett JJ in separate judgments held that s 420(2)(b) did impose procedural requirements on the Tribunal which, if breached, would permit a review under s 476(1)(a). The precise content of the obligation was not discussed in detail. It may be that the observations of Davies and Burchett JJ were not necessary for their decision but as Lehane J observed in Gilson v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, lehane J, 21 July 1997, unreported) at 9-10 the Full Court was intending to clarify an issue about which there was much uncertainty and, if I was of a different view, I would proceed on the majority opinion as did Lehane J: but compare Drekevutu v The Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Madgwick J, 11 August 1997, unreported).  In any event, even if I was to accept the invitation to treat the majority view as obiter and adopt the view of Whitlam J, who was in dissent, my decision on this application would not be different for reasons that will become apparent.

The applicant has identified what was said to be two errors in the reasons of the Tribunal.   Each was said to be an error that made out the two grounds now relied upon.  The first error was a misstatement of fact, it is not clear whether it was intended to be a finding, namely that the applicant had described to the Tribunal an occasion where he met with a Minister of the government at the Minister’s place of residence.  The context in which this statement was made appears in the first extract from the reasons of the Tribunal earlier quoted.  It is clear that the Tribunal was in error when it made this statement.  So much was conceded by counsel for the respondents.  In fact the evidence given to the Tribunal was that the applicant, while attempting to further his business activities, met with a member of the Opposition at that person’s residence and not with a Minister.

The second alleged error was the characterisation of the applicant as a successful businessman involved in large scale business transactions who treated with the government on large international contracts.  The main portions of the reasons of the Tribunal where this characterisation is apparent are in the second and third extracts quoted from the reasons.  Although I have described this alleged error as one involving a “characterisation” of the applicant in fact, properly understood, the complaint is that there were no facts, or no primary facts, from which the inference or conclusion could be drawn that the applicant had the attributes described by the Tribunal.

Ordinarily neither a finding of fact nor an inference drawn from facts is reviewable under
s 476.  What is reviewable is a decision of the Tribunal: see s 475(1)(b).  However, because that decision may depend upon a finding of fact or upon an inference drawn from facts, if the finding of fact or the drawing of the inference from primary facts involves an error of law the decision is reviewable: see s 476(1)(g).  In this connection a finding of fact, or the drawing of an inference, for which there is no evidence is an error of law (Sinclairv Marlborough Mining Warden (1975) 132 CLR 473 at 481, 483) although simply making a wrong finding of fact is not (Waterford v The Commonwealth (1987) 163 CLR 54 at 77). Proceeding under a mistaken view of the state of the evidence is also an error of law similar to that involved in a finding based on “no evidence”: Secretary of State for EmploymentvAssociated Society of LocomotiveEngineers [1972] 2 QB 445 at 493.

Generally speaking, to set aside an administrative decision it is not sufficient merely to show that an error of law occurred in the finding of a fact or in the drawing of an inference leading to the making of a decision.   The position under the common law was briefly summarized in Pearlman v Harrow School Governors [1979] 1 QB 56 at 70, where Lord Denning said:

“The way to get things right is to hold thus:  no court or tribunal has any jurisdiction to make an error of law on which the case depends.  If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it.” (emphasis supplied)

Lord Denning’s view that a successful challenge to an administrative decision or to a decision of an inferior court will only be possible when the error is on a point “on which the case depends” is consistent with principle and with authority.  Cases in Australia including Director General of the Attorney-General’s Department v District Court of New South Wales (1993) 32 NSWLR 409, G.J. Coles & Co. v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 and Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 have held that errors of law on matters collateral or peripheral to the actual decision in question will not be sufficient to quash the decision on judicial review. What must be established according to these cases is an error which is either material to or significant for the making of the decision.

In relation to the first ground of review (s 476(1)(a)), it seems to me that the position that prevails under the common law also applies when review is sought for a failure to comply with the procedures required by s 420(2)(b), at least when the complaint is one of “no evidence”. It is difficult to see how a decision can be described as substantially unjust or otherwise than in accordance with the merits of a case if, in the process of arriving at it, the decision-maker makes an erroneous assumption about a peripheral fact or improperly draws an inconsequential inference. Section 420(2)(b) does not in terms require perfect justice and it would be wrong to construe s 420(2)(b) as imposing such an obligation. It is not necessary to decide whether the same analysis would apply to a different kind of error such as a failure to observe fair procedures.

I turn next to consider s 476(1)(f).  Here it is clear that unless the erroneous assumption of fact or the erroneous inference was either the predominant reason for the decision or was a fact or inference in a series of facts or inferences that constituted the basis of the decision the ground will not be made out: see Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374, Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1987) 13 FCR 511 at 519-522 and Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 220-221. The language of the ground namely “that there is no evidence ... to justify the making of the decision” mandates this conclusion. In any event s476(1)(g) is qualified by s 476(4) which provides:

“The ground specified in paragraph (1)(g) is not 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.”

This only reinforces the conclusion that the erroneous assumption must be of a critical fact or, at the least, of a fact which together with other facts in a chain of reasoning is central to the making of the decision: see Curragh at 220-221.

I now return to the two errors that have been identified by the applicant.  The first is the admitted error that the applicant went to the residence of the Minister for a business purpose when in fact the applicant had gone to the residence of a member of the Opposition for that purpose.  This error is not in any sense material to the decision of the Tribunal.  By this I mean that the assertion that the applicant visited a Minister is not one of the facts upon which the Tribunal based its decision.  On one view it might be a link in the chain of reasoning that led to the decision but it is not a link where there are no other links that could be substituted for it to complete the chain.  The Tribunal used the example of the applicant meeting a Minister as one instance of the applicant’s dealings with government on commercial matters.  But it was just one instance.  There were a number of other instances where the applicant dealt with government people on commercial matters.  Indeed, there was no dispute about the fact that he had done so.  The Tribunal relied upon the applicant’s dealings with government to support its conclusion that there was no objective foundation for the view that the applicant would be persecuted by the government if he returned to Sri Lanka.  There was ample evidence before the Tribunal that could have led it to the same conclusion if the example of the applicant’s meeting with a Minister is disregarded.  It is impossible to conclude, in my opinion, that the error about contact with a Minister played any significant part in the Tribunal’s reasoning.

There is a different answer to the second alleged error, namely the characterisation of the applicant as a successful businessman involved in large scale business transactions in Sri Lanka.  The answer here is that no error of law is disclosed.  The reason is that on the evidence before the Tribunal it was open for it to characterise the applicant in this way.  Most of the evidence on this issue is evidence provided by the applicant either in support of his application for a protection visa or in support of his earlier application for a tourist visa.  The applicant informed the Minister that he was a director of China Henan International Lanka (Private) Limited which he described to the Tribunal as “a government Chinese company - big company, sir, where they do infrastructure development projects funded by World Bank and the ADB.”  He went on to say that this company had “pre qualified for a big electric - electricity project and highways” to be constructed in Sri Lanka.  Documents before the Tribunal disclosed that China Henan International had been negotiating to undertake a development project for the National Water Supply and Drainage Board, a government instrumentality.  There was evidence that during 1995 the applicant, on behalf of certain clients, was involved in discussions about a substantial “sugar project” with a Malaysian company Vikram Holdings Sdn Bhd.  In the same year he was also involved, again on behalf of clients, in discussions with Lanka Infrastructures Limited about financing several projects.  The projects included a US$10 million venture involving the construction of a yacht harbour and hotel accommodation, the establishment of a livestock farm at a cost of US$10 million and the construction of a large irrigation and hydro-electric power station worth some US$450 million.  The applicant was also the authorised representative of a Taiwanese company, Tsung Yih Construction Work Co. Limited, in relation to a tender for a housing project with the government.  Whilst not an equity participant in these ventures, the applicant was to be paid a fee for his services.  As he said, “if I get even half per cent commission, is big money”.  When asked whether he was still active in business shortly before he left Sri Lanka in 1995 the applicant said “Yes, sir. I was doing all right.”  I am of the view that this evidence provided a rational basis for the description by the Tribunal of the applicant as “a successful businessman who treated with the government on large international contracts” and that it was open for the Tribunal to conclude that he was involved “in large-scale business activities some of which ... involved close relations with government organisations.”

The result is that neither ground of review has been made out and the application must be dismissed.

Finally, I should point out that the applicant’s wife had applied for a visa as “a member of the family unit” of the applicant.  A spouse of the head of a family unit is, under the Migration Regulations, a member of the same family unit as the head of the family.  As a member of the same family unit the applicant’s wife was entitled to have her application follow the fate of her husband’s application.  Although she was named as an applicant in this proceeding the application for review has proceeded on the basis that the applicant’s wife is not a party to it but, for all practical purposes, will be bound by the result.

I certify that this and the preceding
(fifteen) 15 pages are a true copy
of the Reasons for Judgment herein
of the Honourable Justice FINKELSTEIN

Associate:  
Date:   16September 1997

Counsel for the Applicant:     TV Hurley

Solicitor for the Applicant:     Barlow and Company

Counsel for the Respondent:  RRS Tracey QC

Solicitor for the Respondent:  Australian Government Solicitor,

Date of Hearing:  23-24 July 1997

Date of Judgment:                 16 September 1997