Wickramasena, U.K. v Griffin, J
[1990] FCA 152
•11 APRIL 1990
Re: UDAJE KANKANAMGE WICKRAMASENA
And: J. GRIFFIN and OTHERS
No. G833 of 1989
FED No. 152
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)
CATCHWORDS
Administrative Law - Immigration - Refusal of application for permanent resident status - Natural justice - Whether it is a breach of the obligation of natural justice to fail to disclose to an applicant a document which is relied upon by the decision maker, irrespective of its contents - Whether particular documents relied upon by the decision maker in this case raised matters upon which natural justice required the applicant to be heard - Alleged failure to take into account all relevant circumstances - Effect of reconsideration of matter in overcoming failure to consider one matter in initial decision.
Migration Act 1958 s.6A
HEARING
SYDNEY
#DATE 11:4:1990
Counsel for the Applicant: Mr G Flick
Solicitors for the Applicant: Barrie Goldsmith and Company
Counsel for the Respondents: Mr P Roberts
Solicitors for the Respondents: Australian Government
Solicitor
ORDER
1. The application be dismissed.
2. The applicant pay the costs of the respondent.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application to review two decisions made by officers of the Department of Immigration, Local Government and Ethnic Affairs. Those two officers are the first and second respondents to the application and the Minister is the third respondent.
The applicant, Udaje Kankanamge Wickramasena, is a Sri Lankan national and a member of the Sinhalese community in that country. He came to Australia in May 1984 with his wife and two children, they being then 16 and 17 years of age. Mr Wickramasena was employed by the Sri Lankan consul in Sydney as a consular officer. Because of his projected employment, he was admitted to Australia on a diplomatic passport and without the necessity of obtaining a temporary entry permit. The basis of his admission was that he was entitled to stay in Australia only during such time as he continued to be employed at the Consulate.
On 11 May 1987 Mr Wickramasena wrote to the Department of Immigration and Ethnic Affairs, seeking the grant to himself, his wife and his two children of resident status in Australia. In his letter Mr Wickramasena set out a considerable body of information, including information about the violence which had occurred in Sri Lanka in recent times. After dealing with the situation which applied in the country generally, Mr Wickramasena went on to deal with what he referred to as "a specific fear for our own individual safety". He explained that during the course of his employment at the Consulate he had encountered many Sri Lankans, both Tamils and Sinhalese, and that he had received threats from persons with whom he had dealt, members of the Tamil community. Mr Wickramasena said that there were "maybe five or six threats" during this period and he explained their genesis and the nature of the threats. Apparently, he had not then been the victim of any violence, but he said that the threats made involved the people concerned arranging for their relatives or friends "to 'get me' when I returned to Sri Lanka". He said that he took the threats very seriously and he had every reason to believe that if he did return to Sri Lanka they would be carried out.
It appears that, following the receipt of this letter, the Department of Immigration, Local Government and Ethnic Affairs sought information from the Department of Foreign Affairs and Trade regarding the position in Sri Lanka. By letter dated 22 December 1987 the Deputy Chief of Protocol in the Department of Foreign Affairs and Trade referred to the position in Sri Lanka in the following terms:
"The situation in Sri Lanka at present is not supportive of Mr Wickramasena's application for resident status. A Peace Accord between India and Sri Lanka to end the communal violence was signed on 29 July 1987. Although there has been some fighting since the Accord in the North and East of the country, the security situation has now stabilised to the point where people who fled Sri Lanka because of the violence are now voluntarily returning. Furthermore, the Indian Peace Keeping Force remains in Sri Lanka to keep the peace between the Tamil and Sinhalese communities and there appears to be progress towards a return to a more normal situation."
The writer of the letter then went on to deal with the specific concern which had been raised by Mr Wickramasena in his application:
"We do not think that solely by virtue of his having worked in the Consulate of the Democratic Socialist Republic of Sri Lanka in Sydney and being a supporter of the Sri Lankan Government, that Mr Wickramasena is likely to be singled out by Tamil groups bent on revenge once he has returned to Sri Lanka any more than other Sri Lankan Diplomatic or Consular personnel."
An assessment report was prepared by an officer of the Department of Immigration, Local Government and Ethnic Affairs, Mr R Howard. The initial report is dated 19 January 1988. This report summarises the claims made by Mr Wickramasena in support of his application. The summary accurately sets out the content of Mr Wickramasena's letter; indeed the accuracy of these claims was specifically conceded by Mr Wickramasena at an interview two days after this report was compiled.
The assessment report deals with Mr Wickramasena's fears for his safety. Reference is made to the general violence in Sri Lanka and in this context the following statement is made in para. 8:
"It is also noted that the applicant has not provided reasons to believe that he and his family would be subject to physical danger greater than that experienced by persons in a similar situation in Sri Lanka."
Mr Howard turned, in para. 9, to the specific fear voiced by the applicant. He set out the nature of the fear and then referred to the letter of the Department of Foreign Affairs and Trade to which I have already referred, quoting the second extract from that letter set out above. Mr Howard went on:
"Therefore this claim is not considered to constitute strong compassionate or humanitarian circumstances within the meaning of s.6A(1)(e) of the Migration Act."
I interpolate at this point a comment that the course of reasoning of Mr Howard in respect of this last matter is obviously defective. Mr Wickramasena had made complaints of threats made to him during his work. There is nothing to indicate that the writer of the letter from the Department of Foreign Affairs and Trade was apprised of the fact or nature of these threats. His letter did not purport to deal with the matter of threats, but commented that he did not think there was a likelihood of revenge, "solely by virtue of his having worked in the Consulate", and "being a supporter of the Sri Lankan Government". I do not criticise the writer of this letter for not dealing with the matter of threats; this is not really a matter upon which that Department could be expected to offer any significant comment. I merely say that the Department only dealt with the fact of employment and the fact of support of the government. It certainly did not follow that the Department's letter disposed of the problem raised by Mr Wickramasena and referred to by him in connection with these threats. I think that it is a fair comment that Mr Howard's assessment did not deal with that matter.
Mr Howard recommended refusal of the application. But his assessment and recommendation were not immediately adopted. It was thought desirable to interview Mr Wickramasena and he came in for interview two days later, on 21 January 1988. A file note records the events which took place.
As I have already indicated, Mr Wickramasena was shown the summary of his claims, prepared by Mr Howard, and he agreed with that summary. According to the file note, Mr Wickramasena then went on to say that he feared to return to Sri Lanka, not just because of the general situation, but because of his prominent membership of the ruling United National Party. He gave details of his activities in that connection and then gave information about threats of violence against himself, his family, and his property during the 1983 riots. He said that these threats occurred five to six times face to face, through letters and telephone calls. Mr Wickramasena went on to deal with his work at the Sri Lankan Consulate in Sydney and he gave details of incidents. He said that on one occasion he was almost assaulted by a client because he refused to do a personal favour and he received after that about five to six telephone calls threatening harm against him and his family on return to Sri Lanka. He gave details of the allegations that were made against him. Apparently there was one occasion, during the course of a demonstration, when he was physically threatened, although not injured. The interview also covered other matters such as the work of Mrs Wickramasena as a nurse and the university studies of their two children. It ended with some discussion about Mr Wickramasena's plans to go into business in Australia.
Following this interview Mr Howard sought information from the Migration Operation Task Force about conditions in Sri Lanka. On 22 January 1988 Mr John Hourigan of that unit wrote a memo to Mr Howard in which he made a number of comments. He said that conditions in 1983 were not necessarily equivalent to those existing now. He then described conditions in 1983, as "indirect harassment not gross discrimination or substantial violation of human rights". Mr Hourigan went on to make some comments about the applicant himself. He said that his career was not adversely affected, that the conditions in Sri Lanka did not prevent him from conducting his normal functions. Mr Hourigan added that conditions in Sri Lanka had shown an improvement in recent months. He made the comment that the United National Party is the elected government of Sri Lanka and it might therefore be assumed that the government would not grossly violate the human rights of party organisers and members. Mr Hourigan concluded:
"This office considers that insufficient claims have been advanced to warrant approval of resident status on humanitarian grounds".
I have some difficulty in understanding the relevance or logic of some of Mr Hourigan's comments. He was asked about the position in 1983 and therefore it was responsive for him to say what he did about that period. However, to say that conditions in Sri Lanka had not affected Mr Wickramasena conducting his normal functions, when those were performed in Australia since 1984, seems to me to be quite illogical.
In any event, Mr Howard decided to adhere to his previous position. An amended assessment report was prepared. It is dated 27 January 1988. It follows the earlier assessment report; and in particular reproduces the logical fallacy upon which I previously remarked. The assessment went to Mr J Griffin, the first respondent in the present proceeding, who endorsed upon it the note:
"I have examined the application on file and read your report.
I agree with your findings and assessment. I accept your recommendation. Application rejected."
I think that Mr Griffin's position is that he adopted completely what Mr Howard had written. Consequently he adopted any vices in the reasoning in Mr Howard's report.
However, the matter did not end there. By letter dated 4 February 1988 Mr Wickramasena was informed of the decision. On 17 February 1988 he requested reconsideration. His letter of that date substanially re-argued his case and he enclosed with the letter a considerable volume of material dealing with the then position in Sri Lanka. He also commented upon many of the matters which were set out in Mr Howard's assessment report. In particular, he criticized the passage to which I have referred in para. 8, about the likelihood of physical danger, and he reiterated at some length his point about the threats that had been made to him whilst at the Consulate.
This letter was the subject of an assessment carried out by an officer, whose name does not appear on the document, on a date which is not shown in the document; but apparently some time in April 1988. This further assessment sets out the claims made by Mr Wickramasena.
"1. P/A has individually been threatened on 5-6 occasions by Sri Lankans of Tamil origin.
2. P/A has received threats in A/A from Tamils that their relatives will 'get' him upon return.
3. P/A has 'a great and real fear for the safety of' himself and his family.
4. 'The violence and atrocities and uncivilised behaviour have not diminished'.
5. P/A would be 'a target of attack on account' ... of his 'prominent membership of the ruling United National Party'
6. Hardship for the children."
The author of the assessment report dealt with the first five claims - that is, the claims involving violence - in the following way:
"In respect of claims 1-5, the primary decision and accompanying recommendation report did address the applicant's fears for his personal safety due to direct threats he has received. It is noted that the threats referred to by the applicant have originated from people in Australia whilst, he was working at the Sri Lankan Consulate in Sydney, rather than from those resident in Sri Lanka. It is accepted that some of these people may return to Sri Lanka, however there is no evidence that the applicant would be in greater danger in Sri Lanka than in Australia arising from the threats which he has received in Australia. An official whose work necessarily involves or contributes to decisions which are unfavourable to some people can be open to certain allegations or threats. That this applicant may have been subjected to such allegations and threats is unfortunate, however he has not demonstrated strong humanitarian grounds to warrant the grant of resident status under s.6A(1)(e) of the Migration Act 1958. (By implication) It is not accepted that all officials from Sri Lanka could not return there. It is not considered that the job which the applicant held in Sri Lanka prior to his arrival (described on his application form as 'clerk Govt of Sri Lanka') would render him as a particularly high profile 'target of attack' upon his return there over four years later, especially if he were to return to a clerical position elsewhere.
Many of the claims advanced by the applicant in connection with his application do refer to experiences or fears which apply to the general population of the country concerned which is insufficient ground for the grant of resident status under s.6A(1)(e)."
This assessment was considered by the second respondent, Ms Ruth Sharkey. She wrote a memo on 18 April 1988 in which she expressed the view that Mr Wickramasena had not substantiated his claimed fears for personal safety on return to Sri Lanka. She concluded by saying that she could find no compelling reasons to vary the primary decision and that Mr Wickramasena should now make arrangements to depart.
Mr Wickramasena and his family did not depart from Australia. A request was made for information under the Freedom of Information Act 1983 and this was supplied after some delay. Thereupon, the present application was filed. It was out of time; but I extended the time for filing the application so as to allow determination of the matters sought to be raised.
The application filed on behalf of the applicant stipulates three grounds for review - denial of natural justice, failure to consider relevant considerations and unreasonableness. The third ground has not really been argued and I think that it is subsumed by the argument in respect of the second matter.
As to denial of natural justice, two propositions were put. The first, very broad, proposition which was put by counsel for the applicant was that two of the documents to which reference has been made - namely, the letter from the Deputy Chief of Protocol of the Department of Foreign Affairs and Trade of 22 December 1987 and the memorandum from Mr Hourigan of 22 January 1988 - were not made available to Mr Wickramasena prior to either of the relevant decisions being made, and that this constitutes a breach of the obligations of natural justice. It was said by counsel that the non-disclosure of any document upon which a decision is based constitutes a denial of natural justice, irrespective of its contents. Two authorities were cited in support of that proposition - namely, The Queen v. Milk Board; ex parte Tomkins (1944) VLR 187 and The Queen v. The Metropolitan Fair Rents Board (1961) VLR 89.
I do not think that either case is authority for such a broad proposition. It is notable that, in each of those cases, the court was concerned with a formal proceeding being conducted by the respondent. The principle which was applied was that, in formal proceedings, it is a denial of natural justice for the relevant body to act upon material put before it which is not disclosed to the other parties. I do not think that this rule applies to a decision such as that made in the present case - namely, the determination of the proper manner of exercising a statutory discretion. It is significant that, in Kioa v. West (1958) 159 CLR 550, the High Court took some trouble to analyze the submission which went to the delegate, and which was the basis of his decision, in order to determine whether there was particular material in the document which attracted the obligation of natural justice. If it had been sufficient that there was a document not seen by Mr and Mrs Kioa, it would have been unnecessary for the Court to undertake that task. I think that the application of the principle depends upon the content of what is being put before the decision maker. For example, in Kioa v. West, at p 587, Mason J. said this:
"But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter."
See also Brennan J at p 629.
The second proposition put by counsel for the applicant was a narrower one - namely, that the two documents to which reference has already been made raised matters adverse to the applicant which had not been disclosed to him and that consequently he had no opportunity to deal with them.
I do not think that this submission is made out. I have already set out the nature of the two documents. I do not think that they contain any material of a factual nature about which there could have been any question of a reply being desirable.
The letter from the Department of Foreign Affairs was a comment upon the general position in Sri Lanka, a matter which had already been the subject of submissions by Mr Wickramasena. There was then also a comment about the likelihood of him being affected by having worked for the Consulate and being a supporter of the government. Once again, these were matters which had been dealt with in far more detail by Mr Wickramasena himself.
The memo from Mr Hourigan dealt with the position back in 1983, a position which, as he pointed out, was scarcely relevant in 1988. The memo then made some comments, for what they were worth. They were not matters of fact calling for a reply.
It was submitted by counsel for the respondent that the obligation to give natural justice only applies to matters personal to an applicant, reference being made to the passage from the judgment of Mason J., which I have already quoted. I do not need to consider what might be the limits of the phrase "personal to the applicant" in this particular context. It is simply incorrect to suggest that there were matters of fact raised by either of these documents which had not been addressed by the applicant already.
The second ground relied upon by the applicant is failure to take into account relevant considerations. This ground focuses upon the non sequitur in para. 8 of Mr Howard's assessment, the submission being put that this assessment failed to address the matters put by Mr Wickramasena about threats made to him whilst he was employed in the Consulate.
If the matter stopped there I would uphold the present challenge on the ground of failure to take into account relevant considerations. I think that it is clear that the initial decision did not address the problem of the threats that were made to Mr Wickramasena during the course of his employment at the Consulate. However, the matter did not stop there. There was a reconsideration. The letter seeking reconsideration dealt in considerable detail with the threats and, as appears in the section of the subsequent assessment which I have set out, these threats were a major matter of consideration at the time of the reassessment.
No doubt Mr Wickramasena would quarrel with the reasoning in the reassessment. He might think that the significance of the threats has not been sufficiently understood. He obviously disagrees with the final decision that has been reached. My own views on that matter are not material. I have to ask myself whether it can be said that the relevant matters have been addressed by the decision maker, using that term in the sense of fully and fairly addressed in order to obtain the appropriate decision; cf. Independent TV Radio Pty Limited v. Australian Broadcasting Tribunal (Davies J., 21 April 1989, not reported).
When I consider the assessment which took place and the further consideration of that assessment undertaken by Ms Sharkey, I am unable to conclude that the matters about which Mr Wickramasena was concerned, and which had been inadequately addressed in the first decision, were not fully considered in the course of making the second decision. As I say, my opinion as to the appropriate decision to be made upon those matters is not material. I am only concerned whether there was a failure to take into account a relevant consideration. I think that the answer is that, in the end, there was no such failure.
There would be no point in setting aside the first decision, which has been superseded by the second decision. The application for review should be dismissed. The applicant must pay the costs of the respondents.
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