Abdul Raheem v Minister for Immigration & Multicultural Affairs

grounds of review 11 The first three of the four grounds of review put forward by the applicant rely on the same criticism of the Tribunal's decision. In summary, this criticism is that the Tribunal rejected much of the applicant's account of his experiences without exercising its power to confirm his account by its own enquiries. The criticism was expressed as follows (omitting references to the Court book pages): "The applicant had provided the tribunal with photographs, a video, a copy each of a summons and warrant for his arrest and other related documentary materials in support of his claim that all but one of his close political associates involved with the UNP had been killed for reasons related to that political activity and that he would likewise face a similar fate were he to return to Sri Lanka. The [Tribunal] was invited to initiate its own further inquiries to satisfy itself of the veracity of these claims and the authenticity of the relevant documents, but it declined to do so, and proceeded to find that that material did not "…outweigh the many difficulties with the applicant's claims …" Such an invitation to so make further inquiries was, in the circumstances, both reasonable and sensible and capable of being accommodated within the power (under s 427 of the Act) granted to the [Tribunal] to require the Secretary to undertake such inquiries and report to it. In the circumstance that the [Tribunal] failed to make the relevant further inquiries it was not in a position to, and did not, set-out: (a) findings of fact on the issue of the status of the persons named by the applicant as his close political associates (since deceased) and the activities claimed by the applicant to render him liable to the same fate as those associates were he to return to Sri Lanka; (b) findings of fact on the authenticity of the summons and warrant for the applicant's arrest; and (c) the evidence or other material upon which such findings could have been based. In declining so to do, the RRT proceeded on a basis inconsistent with the proper application of the test of "well-founded fear" of persecution and failed to take into account relevant considerations which were central to the applicant's claims." These alleged deficiencies are said to involve reviewable error on the part of the Tribunal in that it misconceived and misapplied the scope of its duty to review the Delegate's decision thus giving rise to constructive failure to exercise its jurisdiction within s 476(1)(b) or s 476(1)(c) or error of law within s 476(1)(e). 12 The final ground of review in the further amended application is that the Tribunal incorrectly interpreted, and applied, the test of well-founded fear of persecution.

The Tribunal's duty to review 13 In Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 ("Anthonypillai"), the Full Court rejected the proposition that the Tribunal's failure to give "proper, genuine and realistic consideration" to the materials before it will necessarily give rise to a ground of review in this Court under Pt 8 of the Act. In doing so, however, the Court emphasised the importance of the obligations that ss 65 and 414 respectively impose on the Minister and the Tribunal and made the following statement (at [78]-[80]): "Nonetheless, it seems to us that there is some scope, albeit limited, for the argument that the Tribunal may, in a particular case, have failed to "review" the decision of the Minister. In other words, although we consider the use of the formula "proper, genuine and realistic consideration" to be an unsuitable method of expressing the circumstances in which that contention can be maintained, we accept that there may be some cases where it can properly be said that the Tribunal has not in truth "considered" the application for a visa at all. It is often dangerous to seek to elucidate a principle by the use of examples, particularly when they are far removed from the facts before the Court. However, were the Tribunal to misconceive the nature of its statutory obligation, as for example by mistakenly believing that it was engaged in appellate review of the Minister's decision (rather than a rehearing de novo), it would be difficult to avoid the conclusion that it had failed to "review" the decision, in accordance with the requirements of the Act. Similarly, were the Tribunal to address the wrong question, rather than the question properly before it, there would be a constructive failure to exercise jurisdiction. Again, speaking hypothetically, were the Tribunal merely to pay lip service to its task, as for example by determining an application without reading the material filed before it, it would be difficult to conclude that it had "considered" the application. These examples are admittedly extreme. However, they serve to illustrate the principle. Where an applicant for review in this Court contends that there has been a failure on the part of the Tribunal to perform its statutory duty, that submission must be shown to fall within an existing ground of review contained in s 476(1). A failure of that type may well fall within the ambit of s 476(1)(e). The first two of the examples set out above would seem to do so. The third example is more problematic, though it might be said that the obligation which s 54 of the Act imposes upon the Minister "to have regard to all of the information in the application" is relevantly a "procedure required by the Act to be observed in connection with the making of the decision" for the purpose of s 476(1)(a). It should be remembered that a constructive failure to exercise jurisdiction which does not fall within any of the grounds for review contained within s 476(1) may, nonetheless, give rise to a claim for relief in the High Court. It will not, however, form the basis for review of any decision in this Court." 14 Relying on the above analysis in Anthonypillai, the applicant alleges that the Tribunal failed in its obligation of review and submits that this failure constitutes a reviewable error within the meaning of subsections (b), (c) or (e) of s 476(1) of the Act. There is support for this approach to reviewable error in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ("Yusuf") where McHugh, Gummow and Hayne JJ said, at [75], "If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past). [citations omitted] Later in their joint judgment, McHugh, Gummow and Hayne JJ discussed the concept of jurisdictional error on which the applicant relies. Their Honours noted at [82], that: "The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it." Discussing the limitations prescribed by s 476(3) of the Act, their Honours pointed out that, unlike s 476(2), the section applies only to one of the grounds in s 476(1), namely par (d), and that there is no reason to read down the language of pars (b) or (c). Their Honours continued at [83]: In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it 'exceeds its authority or powers'. If that is so, the person who purported to make the decision 'did not have jurisdiction' to make the decision he or she made, and the decision 'was not authorised' by the Act."

15 Ultimately the applicant's claim was that he had attained a certain political profile and that he had been persecuted for that reason. He claimed that his evidence showed that the likelihood of someone with this political profile being persecuted was such that he had a well-founded fear of persecution. His claim was rejected by the Tribunal because: (a) it did not accept that the applicant had the claimed political profile; (b) it did not accept that he had been persecuted in the past; and (c) it did not accept that, in the circumstances presently existing in Sri Lanka, a person with the applicant's political profile would suffer persecution or that the Sri Lankan government would be unable or unwilling to provide protection from such persecution. I will consider each of these conclusions.

The applicant's political profile 16 The applicant's claim to have a certain political profile was based on his alleged involvement with the UNP; see [2]-[4] above. As noted in [5] above, the Tribunal did not accept that the applicant's involvement in UNP security matters was as claimed. It gave reasons for reaching this conclusion, namely · the Tribunal experienced difficulty getting the applicant's account of his security role at the hearing, suggesting it was not foremost in his mind; · the tasks that the applicant stated he had performed did not indicate a significant security role in the UNP; in particular, possession of a weapon in the context of Sri Lankan politics did not indicate that he had a high profile; · according to the applicant's evidence, his support for the UNP was for short periods only; and · at the hearing, the applicant seemed to have little idea of the types of activities a person involved in security might undertake. None of this analysis indicates that the Tribunal asked itself the wrong question or took into account irrelevant material. Further, the applicant has not suggested that there was any material that the Tribunal failed to take into account.

Past persecution 17 The Tribunal divided the applicant's claim that he had been persecuted in the past into two separate time periods. In respect of the period before the 1994 election, the Tribunal accepted that the applicant had been a victim of violence as he had described. This included being hit by a bottle, being beaten and having his ear cut. The applicant does not raise any issues about this finding. 18 In respect of the period after the 1994 election, the applicant had claimed that PA supporters hunted and killed UNP leaders and supporters, including all but one of the applicant's colleagues. He claimed that he had received threats, had his house and car damaged, been stabbed in the hand and had false charges made against him. He also claimed that people had tried to kill him. In support of his claim that his colleagues had been killed, the applicant provided the Tribunal with death notices, a video of a funeral, a newspaper article relating to the killing of a "notorious underworld figure" and a summons and warrant for arrest. The Tribunal rejected these claims for the reasons noted at [6], [7] and [9] above. The applicant also claimed that, when he returned to Sri Lanka, armed people came to his house and pushed his sister. He has since received two letters from his brothers, both of which were provided to the Tribunal, in which his brothers informed him that they had been threatened and intimidated because of the applicant's involvement in the UNP. The Tribunal rejected this claim for the reasons noted at [8] above. 19 Again, there is nothing to suggest that the Tribunal asked itself the wrong question or took irrelevant considerations into account. The applicant submitted that, by failing to make further enquiries, the Tribunal failed to take into account relevant considerations. This issue is discussed in [21]-[26] below. The applicant has not alleged that the Tribunal failed to take into account any relevant material that was before the Tribunal.

Future persecution 20 The applicant claimed that he had a well-founded fear of persecution if he should be returned to Sri Lanka. As noted in [10] above, it concluded that there was no more than a remote chance that the applicant would face harm of a kind which might constitute persecution on his return to Sri Lanka as a result of his political opinion and activities. The Tribunal gave reasons for reaching this conclusion, which I have summarised at [10] above. There is nothing in the Tribunal's analysis that suggests that it asked itself the wrong question, ignored relevant considerations or took into account irrelevant considerations.

Failure to make enquiries 21 The applicant submitted that, even if the Tribunal asks itself the right question, ignores irrelevant considerations and considers all the relevant material that is before it, it may nevertheless have erred. The applicant's submission was that the Tribunal is required to take into account all relevant material, including material which was not before it but which it could have obtained by making reasonable enquiries. 22 Section 427(1)(d) gives the Tribunal power to make such enquiries. That section provides: "For the purpose of the review of a decision, the Tribunal may…require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination." [emphasis added] Although the applicant's adviser had asked the Tribunal to make further enquiries pursuant to this power, it had refused to do so for the reasons set out in [9] above. 23 The respondent submitted that the Tribunal's power require investigation under s 427(1)(d) of the Act is permissive rather than obligatory. In Kulwant Singh v Minister for Immigration & Ethnic Affairs (North J, 21 November 1996, unreported), North J stated: "In my view, there is no implicit requirement in s 427(1)(d) that the Tribunal consider whether to have the Secretary arrange a medical examination. The section is permissive. It gives the Tribunal a power. The Act does not require that the power be exercised, and it follows that it does not require the Tribunal to consider whether it should be exercised. Thus, although a failure to consider whether to exercise the power may be unwise in certain circumstances, it is not a failure to observe a procedure required to be observed by the Act." Similarly, in Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209 at [12]-[14], McHugh J held that the power in s 427(1)(d) was discretionary rather than mandatory and that the Tribunal should only make enquiries if the material is readily available. The principle that a failure by the Tribunal to make enquiries does not give rise to a reviewable error is supported by the recent case of Ahmed v Minister for Immigration and Multicultural Affairs [2001] FCA 506 at [39]. In another recent case, W41/01A v Minister for Immigration & Multicultural Affairs [2001] FCA 742 at [19]-[23], R D Nicholson J left open the possibility that a duty to enquire may exist in exceptional or rare circumstances. In this case, the Tribunal had already concluded that the applicant's claims were implausible. Even if there is a duty to enquire in exceptional circumstancesthere is no evidence to suggest that this is such a case. 24 In the face of these authorities, counsel for the applicant, Mr Appudurai, was prepared to concede that the Tribunal has a discretion whether or not to exercise the power it has under s 427(1)(d). He submitted, however, that the error here lay in the fact that the Tribunal had misdirected itself in deciding whether to exercise its discretion. He argued that a tribunal properly directing itself would have taken the view that some of the material it was rejecting was relevant to the claims made by the applicant and that it should therefore be tested by further investigation. Mr Appudurai submitted that this was particularly so in this case because the transcript of the hearing before the Tribunal shows that the Tribunal was very confused about the claims put forward by the applicant. In support of this submission, Mr Appudurai referred me to a number of passages in the transcript. It is not necessary to set out the relevant parts here. Suffice it to say that in my opinion the transcript shows the usual difficulties that arise when taking evidence through an interpreter. I accept that the transcript shows that the interview with the applicant was difficult and confusing. I accept that it shows that there was some increasing irritation on the part of the Tribunal in dealing with evidence from the applicant that it regarded as fabricated and completely implausible. The transcript also shows, however, that the Tribunal was dealing with those difficulties by going over points, asking for answers to be repeated, requiring issues to be dealt with in small portions and seeking additional information. 25 In any event, I do not accept the applicant's submission. Section 427(1)(d) clearly indicates that the Tribunal may make such enquiries as it thinks necessary. The Tribunal in this case did not regard it as "necessary" to make further enquiries because it had decided with some confidence that the applicant did not have the political profile that he claimed. It therefore did not regard the fate of his alleged high profile political associates as indicative of the way in which the applicant would be treated if he were to be returned to Sri Lanka. On this basis it decided that further enquiries would not assist the applicant. 26 I therefore find that the fact that the Tribunal decided that it was not necessary to use its power under s 427(1)(d) does not give rise to any reviewable error. Accordingly, the Tribunal did not ask itself the wrong question, take irrelevant considerations into account or fail to take relevant consideration into account. This ground of review is not made out.

Misinterpretation and misapplication of the 'well-founded fear of persecution' test 27 The applicant submitted that the Tribunal, by applying a low threshold for discrediting the applicant's account, misinterpreted the phrase 'well-founded fear'. In this regard, the applicant's solicitor referred to the cases of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559and Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The applicant's submissions refer to the following passage at the end of the transcript of the Tribunal hearing as indicative of the Tribunal's approach: "MS HOLMES [Tribunal]: End of 1995, 1996, who cares. I mean it is very much the same thing, 15 or 16 months. That is a long time for people not to have done anything. I also think the character of what you did - I mean you have described it as security. I mean you might have run around with a gun but you didn't ever use it. And what you did was… THE INTERPRETER: I didn't have to - I didn't use it…use it but I…" The respondent submitted that the above passage, when read in context, shows that the Tribunal was commenting on the delay that had occurred between the 1994 election and the time at which action was taken against the applicant. I agree with this submission. It seems to me that the Tribunal is saying that the difference between 15 and 16 months is immaterial in the context of a comment on the lapse of time between the election and the response of the applicant's political opponents. 28 The applicant's submission in this regard is an invitation to review the Tribunal's finding as to the applicant's credibility on its merits. The Tribunal's finding that the applicant was not a credible witness was one open to it and not a misinterpretation of the phrase "well-founded fear". 29 It was submitted by the applicant that the Tribunal ought to have asked itself 'what if I am wrong' in relation its findings of fact about what had occurred in the past before proceeding to find that the applicant did not have a well-founded fear of persecution in the future. The respondent submitted that the findings of the Tribunal did not exhibit any doubt and thus the Tribunal did not need to consider the possibility that its findings were wrong. 30 In asking itself whether the applicant has a well-founded fear of persecution in the future, the Tribunal need only consider the possibility that it is wrong in respect of its findings as to what occurred in the past if it has a real doubt that those findings are correct; Minister for Immigration and Ethnic Affairs v Guo (supra) at 576. In relation to the applicant's role in the UNP, the Tribunal stated "I have concluded that the applicant undertook practical support tasks…for the party in the context of election campaigns but am not satisfied that he had any significant role beyond this". In relation to the Tribunal's finding that the applicant had not been persecuted after the 1994 election, it stated in respect of each claim either · that it was not satisfied that the claim was true, · that it did not believe the claim, · that it did not accept that the claim was true, or · that it 'doubted' that a claim was true but was of the view that, even if it was true, it was not due to the applicant's political involvement. It seems to me that these expressions indicate that the Tribunal had a high degree of confidence in its findings. Accordingly, it was not required to consider the possibility that its findings in relation to past events might be wrong when considering whether or not the applicant had a well-founded fear of persecution in the future. 31 The Tribunal's primary finding was that it did not believe that the applicant's political opponents would take any significant action against him at all given that six years had passed since the applicant had had some low profile involvement in politics. It stated, however, that the applicant had experienced some harm, including threats, stone throwing and being beaten up and that this did not amount to persecution. The applicant submitted that, in making this finding, the Tribunal misinterpreted the meaning of the word 'persecution' by failing to recognise that '[p]ersecution' is not limited to acts of harm resulting in loss of life or liberty, other forms of harm short of interference with life or liberty may constitute persecution". The applicant relied on Chan v Minister for Immigration and Ethnic Affairs (supra) at 429-430 per McHugh J and Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 at 354 in support of this submission. However, nowhere in its reasons does the Tribunal state that conduct could only amount to persecution if it resulted in loss of life or liberty. Whether established claims are sufficiently serious as to amount to persecution is a question of fact and degree to be addressed by the Tribunal and not by the Court; Arumugam v Minister for Immigration & Multicultural Affairs [1999] FCA 251 at [37] (on appeal, [1999] FCA 1285). The Tribunal's conclusion that the type of harm experienced by the applicant does not amount to persecution is one that was open to it. 32 For the above reasons, the application must be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Solicitor for the Respondent: Blake Dawson Waldron