"Applicant in V471 of 2000" v Minister for Immigration & Multicultural Affairs

Background 3 The applicant is a citizen of Sri Lanka of Tamil ethnicity and Christian by religion. After arriving in Australia he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department"). That application was refused by a delegate of the Minister ("the Minister") and the refusal was affirmed on review by the Refugee Review Tribunal ("the Tribunal") on 13 March 1997. 4 The claims made by the applicant in support of his application have been summarised by the Tribunal in these terms; "His father died when he was one year old and later he commenced his education in Colombo. During the communal riots of 1983, the family house and contents were destroyed and the family moved to a refugee camp. The Applicant's mother then sent her two sons to India to pursue their education, but she passed away in early 1984 and the Applicant returned for a few days before going back to India. While he was in India, he was sympathetic to the principles of the Liberation Tigers for Tamil Eelam (LTTE) and would attend meetings held by that group and raise money for Tamil refugees by selling newspapers. In this capacity, he made friends with three men Messrs. S, N and K. He returned to Sri Lanka in 1986 and completed a tertiary education in 1991. He had difficulty obtaining work because of his race, but obtained a position commensurate with his qualifications the following year. He told the Tribunal that he had no difficulties until early 1995, when he was detained for two days in Dehiwela and only released when his uncle made arrangements with the police. In August of that year, he went to India on a business trip and renewed acquaintances with Mr S, who told the Applicant he had been released from gaol the previous month. He gave Mr S his address in Colombo. In November 1995, soon after a major terrorist [sic] in Colombo, he was again detained for two days after being stopped while travelling on a bus. His uncle again arranged his release. He stated that he was mistreated on each occasion he had been detained. In January 1996, Mr N and Mr K visited Colombo and stayed at the Applicant's house, which he shared with a Sinhalese named Mr M. As there was not enough room in the house, the Applicant found them alternative accommodation in the same street. He also helped them collect some clothes for refugees. At the end of January, the Applicant heard from Mr N that Mr K had been detained after a bomb blast. Mr N also told the Applicant that he was working for the LTTE, that he and Mr S had been obtaining information about telecommunications systems in Colombo and that the latter had, in fact, escaped from prison in India. The Applicant feared that he would be implicated with these men and told his boss what had happened. His boss arranged for them to hide at another of his offices and that night Mr N left for Jaffna and has not since been in contact with the Applicant. On 20 February 1996, police raided Mr K's house, confiscated some materials and discovered that the Applicant and Mr M had helped Mr K to rent accommodation. Mr M was then arrested but apparently released after the intervention of the Applicant's boss. The authorities searched for the Applicant and several times sought him at his aunt's place, but he remained hiding and was able to leave the country in June 1996, after his boss had used his contacts to make arrangements for the Applicant to depart without being intercepted by any government agency." 5 The applicant also relied on events which apparently had occurred after his arrival in Australia. As recounted by the Tribunal, that part of his claim was; "The Applicant submitted various materials referring to the mistreatment of Tamils in Sri Lanka. He stated that his uncle had died recently and that his brother had left Sri Lanka and his whereabouts was unknown. His only other relative, his aunt, is about to go to Canada, so that he won't have any relatives to help him if he is detained on return to Sri Lanka. He submitted a letter from his aunt and another from a friend. The former told him, among other things, that she was leaving for Canada, no longer had visits from police and had burned all of the Applicant's documents, while she believed his brother may be in France. She added that "The problems that you have done to us has changed our life totally.". The letter from his friend stated, among other things, that Mr M had moved, the Applicant's former place of employment had closed and most of the Tamils' houses were checked many times and it was not safe for people like the Applicant to be in Sri Lanka." 6 Under the heading "Discussion and Findings", the Tribunal accepted that the applicant and members of his family had been victims of communal violence between Tamils and Sinhalese in 1983. After referring to "country information" which described extensive killings in inter-racial violence and massive dislocation of Tamil refugees during the 1980s, the Tribunal went on to find that; "The Applicant was sent to India in 1983, returned for a short stay after his mother's death, went back to India and then came back to Colombo in 1986, where he continued his education and then found work. He stated that he did not encounter any difficulties between 1986 and April 1995 and, while there is no reason to doubt that he was emotionally scarred by the events of 1983 and has a genuine fear that they may be repeated, the available evidence does not support a conclusion that those events increase the chances that the Applicant faces persecution if he now returns to Sri Lanka. The Tribunal notes, in forming this conclusion, that he returned in 1986 and September 1995 without being harmed as a consequence of the 1983 riots." 7 The Tribunal accepted that it was "plausible' that the applicant had been twice detained during security crackdowns but found that his claims to have been mistreated during those periods of detention had been "manufactured" by way of falsely reinforcing the applicant's claim. Accordingly, the Tribunal concluded that; "... ... the Applicant had the misfortune to be twice detained for questioning during periods of intensified security. Once satisfied that he was not involved with terrorist organisations or attacks, he was released. It is plausible that his release was assisted by his uncle paying some money. However, the Tribunal concludes that he was released unharmed because he was of no ongoing adverse interest to the authorities. This conclusion is concordant with his evidence that he had no qualms in renewing his passport in 1995 and that he went to India on business in mid 1995 and returned without fearing that he would be harassed. He stated that this was because he was involved in business. 8 After the Tribunal delivered its decision on 13 March 1997, The applicant requested that the Minister's delegate exercise her discretion under s 417 of the Migration Act 1958 (Cth) ("the Act") to let him stay in Australia on humanitarian grounds in accordance with government policy. This was denied on 20 March 1997. The applicant then made a further submission directly to the Minister that was later supported in writing by two Members of Parliament. The Minister wrote to The applicant on 13 August 1997 acknowledging receipt of his submission. On 17 April 1998, the Minister decided not to exercise his discretion under s 417. The applicant renewed his request to the Minister on 12 May 1998. On 15 December 1998 the Minister denied the renewed request. 9 On 26 June 1998, The applicant commenced proceeding M52 of 1998 against the Minister in the High Court of Australia in relation to the decision of 17 April 1998. That application was dismissed on 22 November 1999 because of the intervening decision of the Minister of 15 December 1998. On 16 December 1999, the applicant made a fresh application for relief (M128 of 1999) to the High Court. As will be apparent from the order of remitter set out at [1] above, it requires this Court to examine the original decision of the Tribunal and not the refusals to exercise the discretion conferred by s 417 of the Act.

Relevant Law 10 Section 36(2) of the Act makes it a criterion for the grant of a protection visa that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol ("the Convention"). Article 1(A)(2) of the Convention, in turn, defines a refugee as; "any 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 his nationality and Is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;" 11 Section 45 of the Act requires a non-citizen to apply for a visa of a particular class. An application for a visa is, by force of s 46, valid if, and only if, amongst other things, it has been made in the way prescribed for the making of an application for a visa of the specified class. Section 47 of the Act provides; "(1) The Minister is to consider a valid application for a visa. (2) The requirement to consider an application for a visa continues until: (a) the application is withdrawn; or (b) the Minister grants or refuses to grant the visa; or (c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration). (3) To avoid doubt, the Minister is not to consider an application that is not a valid application. (4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa." 12 A question has arisen in a number of cases in this Court whether an application for a visa, which was initially invalid because it was not made in the way prescribed by the Regulations, can be cured by the applicant's having filed supplementary material before a decision had been made in respect of his or her application; see eg. Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548; Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421 and Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435. However, it has been held by a majority of a Full Court of this Court in Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 (Spender and Gyles JJ; Marshall J dissenting) that an application which is initially invalid may be rendered valid if, after a delegate of the Minister has purported to refuse the application on the merits and before the Tribunal has determined an application for review of that refusal, the applicant has provided the additional information necessary to rectify the original defect. Yilmaz was later considered by another Full Court of this Court (Ryan, Sackville and Emmett JJ) in Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486, where this observation was made, at 502; "In both Yilmaz and Nader, the Court was concerned with a situation, either actual or hypothetical, where an applicant, who had lodged an incomplete Form 866 and who had promised additional information, subsequently forwarded a document containing that information to an office of Immigration (as defined by reg 1.03) before the decision making process had commenced. In these circumstances, the view has been taken that the two documents (the Form 866 and the document containing the promised information) can be read together. Accordingly, a valid application is taken to be lodged when the promised information is supplied." (original emphasis) 13 Under s 65(1) of the Act, if the Minister or his delegate concludes that an applicant satisfies the criteria laid out in the Act or the Regulations, then the visa must be granted. The Tribunal must review the decision of the Minister or the delegate, denying or cancelling a protection visa if a valid application is made under the Act; ss 411(1)(c) and 414(1). 14 Section 476(1) stipulates that application may be made to this Court for review of a judicially-reviewable decision of the Tribunal on the following, relevant, grounds; "(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; . . . (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision . . . ." 15 Counsel for the applicant relied on the judgment of a five-member Full Court of this Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469, in which it was held that s 430 of the Act imposed on the Tribunal a duty to make, and set out, findings on all matters of fact that are objectively material to the decision it is required to make. The failure to perform that duty was, it was said, a non-observance within the meaning of s 476(1)(a) of a procedure required by the Act to be observed in connection with the making of a decision of the Tribunal. However, since the present case was argued, the High Court has made it clear in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1, that the Tribunal is not obliged by s 430 of the Act to make and set out findings on all matters of fact that are objectively material to the decision required of it. In the joint judgment of McHugh, Gummow and Hayne JJ, it was observed, at 17 [68]; "Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word 'material' in s 430(1)(c). It was said that 'material' in the expression 'material questions of fact' must mean 'objectively material'. Even if that were right, it would by no means follow that the tribunal was bound to set out findings that it did not make. But it is not right to read 'material' as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliged the tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision." (original emphasis).

Did the Tribunal have jurisdiction to review the decision of the delegate? 16 It was contended on behalf of the applicant that there was no reviewable decision refusing the grant of a protection visa because the original application for a visa of that class, contrary to s 46(1)(b) of the Act, had not been made in the way required by s 45(1) of the Act and by Regs 2.03(1), 2.04, 2.07 and Clause 866.21. It was conceded on behalf of the respondent that the application for a protection visa had not been, at the time when it was lodged on 29 July 1996, a valid application. However, Mr Mosley of Counsel for the respondent pointed out that a detailed statement setting out the applicant's claims had been supplied under cover of a letter dated 30 August 1996 to the Department by solicitors acting for the applicant. That material was supplemented by newspaper clippings and other "country information" and the applicant had an opportunity to amplify his claims when he was interviewed by the delegate on 26 September 1996. Moreover, after that interview and before the making of the delegate's decision, the applicant submitted two pages of "additional comments" in his own handwriting and an extract from the "Sri Lanka Monitor" for June 1996. 17 In these circumstances, I consider that I am bound by the judgment of the Full Court in Yilmaz to hold that, by the time when the delegate made her decision, the original defects in the application had been cured so that the decision was RRT reviewable within the meaning of s 411(1) and s 414 of the Act. I note in passing that Marshall J, although a dissentient in Yilmaz, has subsequently regarded himself as bound to follow the majority in that case; see Thayananthan v Minister for Immigration & Multicultural Affairs [2000] FCA 1825. Yilmaz has similarly been followed at first instance by Merkel J in Najarian v Minister for Immigration & Multicultural Affairs (2000) 175 ALR 695, by Katz J in Wimalaratne v Minister for Immigration & Multicultural Affairs [2000] FCA 964, by Tamberlin J in Myint v Minister for Immigration & Multicultural Affairs [2001] FCA 122 and by Stone J in Chelliah v Minister for Immigration & Multicultural Affairs [2001] FCA 200.

Did the Tribunal fail to make a finding as to a material fact? 18 On behalf of the applicant certain assertions made by him were instanced as requiring to be the subject of findings of fact by the Tribunal. This argument centred on the assertion that, in early 1996, he had unwittingly provided accommodation for an LTTE bomber and spy. If accepted, so the argument went, that assertion would provide a basis on which the Sri Lankan authorities could have imputed to the applicant the political opinions of an LTTE sympathiser. The imputation of such a political opinion would, in turn, give rise to a well-founded fear in the applicant of being persecuted if he were to return to Sri Lanka. 19 I am not persuaded that the Tribunal did neglect to make a finding as to whether the applicant had unwittingly assisted Mr K in the way that he claimed. At p 9 of the Tribunal's reasons, this passage occurs; "It is plausible that Mr K was arrested after the bomb blast in January 1996. As the Applicant stated at his departmental interview, there were masses of arrests in response to that terrorist attack. The Applicant said that on the same day he became angry when Naranjankumar told him he worked for the LTTE and had been spying and obtaining information about communications systems. Despite his fears that this would be found out, he states that she [sic; sc he] told his boss who then hid them in another company office. The Applicant states that he remained in hiding until he went to Australia, although it is clear that he had to arrange various matters in relation to his student visa application and this involved him in attending public places and having an address at which he could be contacted by the Australian Embassy and the school at which he had enrolled. He claims that three weeks after his arrest for involvement in a bomb blast, Mr K's home was raided. This seems a particularly long period for investigators to search a suspected bomber's house. The Applicant states that Mr M, his co-tenant, was questioned and then released after the intervention of the Applicant's boss. His evidence in this aspect was confusing, because he sought to tell the delegate that he was unaware of this event until after he came to Australia. Given that his boss was said to go to considerable lengths to assist the Applicant hide and then depart, it is not credible that he would not have mentioned what had happened to Mr M after his arrest and release, during the four months prior to the Applicant's departure. It was only at a later stage that the Applicant also claimed that the security forces were searching for him at his aunt's house while he was hiding in a company office and at some other locations. The late submission of this evidence, given its potential significance, indicates that it was fabricated to reinforce the Applicant's claims. The Tribunal finds that the Applicant's story is far-fetched. While he belatedly claimed that he was closely linked with the LTTE, he was a peripheral helper in 1983 - 1984, before the group was targeted by Sri Lankan and Indian authorities. At most, the Tribunal accepts that the Applicant knew Mr K and that Mr K was arrested in the wake of the January 1996 bombing. It does not accept that the Applicant faces any harm at all because of this acquaintance. The authorities had several months and ample opportunity in which to locate and question the Applicant, but did not do so. They could also have intercepted him at the airport, but failed to do so. While the Applicant was allegedly in hiding, he continued with activities related to his departure some four months later, letting much time elapse during which he could have otherwise left the country. In the meantime, he states his housemate was arrested and detained and then released because he had also assisted the Tamils find accommodation. The Tribunal does not believe that the investigators would wait three weeks to raid the suspected bomber's premises, nor does it believe that Mr M was arrested and then released. Even if he was, the fact that he was released leads to a conclusion that the Applicant does not face any more than a remote chance of persecution on account of his association with Mr K." 20 That passage was said by Counsel for the applicant to have seized on a finding "in the middle ground" that the Sri Lankan authorities had not been seeking the applicant because "they were in some way inept." Such a finding, it was submitted, left open the possibility that the authorities might later stumble on the connection between the applicant and Mr K and be led to persecute the applicant on the basis of the political opinion which they would impute to him as a result. However, if the passage just quoted is read with the generosity which authorities like Minister for Immigration and Ethnic Affairs v Wu Shian Liang (1996) 185 CLR 259 at 271-2, require to be accorded to decisions of administrative tribunals, it embodies a finding, at least by implication, that the applicant had not arranged accommodation for Mr K. More importantly, there was a positive finding that, whatever be the true state of affairs in respect of Mr K and the applicant's knowledge of his activities, the Sri Lankan authorities did not make any inculpatory connection between Mr M and the applicant and the January 1996 bombing. The inference then becomes irresistible that the Tribunal considered that there was not a real chance of such a connection being made more than twelve months later. 21 Even if, contrary to the view just expressed, the Tribunal did fail to make a finding as to whether the applicant had assisted Mr K to find accommodation, that omission is not indicative of a failure to comply with s 430(1). As explained in the extract from the joint judgment in Yusuf quoted at [15] of these reasons, the Tribunal was only obliged by that sub-section to set out the findings of fact which it actually made and which it, therefore, considered material.

Did the Tribunal err in law in assessing whether the applicant had a well-founded fear of persecution for a Convention reason? 22 It was acknowledged in the joint judgment in Yusuf at [69] that a court is entitled to infer that any matter not mentioned by the Tribunal in its statement of reasons pursuant to s 430 was not considered by it to be relevant. Their Honours went on to say, at p 18; "This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error [Craig v South Australia (1995) 184 CLR 163 at 179]. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration [Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24]." 23 I do not consider that the Tribunal's failure expressly to mention the applicant's claim that he had found accommodation for Mr K indicates that it asked itself a wrong question or failed to take into account a relevant consideration. The ultimate question for the Tribunal to resolve was whether the applicant had a well-founded fear of persecution by the Sri Lankan authorities for the reason of his imputed political opinion as an LTTE sympathiser. The passages which I have already quoted from its decision make clear that the Tribunal perceived that the applicant's case as to the political opinion alleged to have been imputed to him was founded primarily on his association in early 1996 with Mr K, a suspected LTTE bomber. It also considered, but rejected, as a foundation for a well-founded fear of persecution, the fact, which it appeared to accept, at least for the purpose of assessing the claim, that the applicant had been detained by the authorities for two days early in 1995 and again in November of that year. 24 When the matter is analysed in this way, it cannot be concluded, I consider, that the Tribunal asked itself a wrong question or failed to take into account a relevant consideration. 25 Mr Hurley of Counsel for the applicant also contended that the Tribunal had failed, in assessing whether the applicant faced a real chance of persecution in the event of his return to Sri Lanka, to consider the cumulative effect of those of the applicant's claims which it accepted. However, the Tribunal reviewed all of the matters relied on by the applicant as preceding the events of January 1996 before it came to this conclusion; "In summary, the Tribunal does not accept that the Applicant is wanted by the authorities in relation to the LTTE or its activities and finds that his evidence in that aspect of his claims has been largely contrived or embellished. His fears in that regard are groundless because there is not a real chance they will be realised, even when considered along with other factors." (emphasis added) 26 Insofar as the applicant's claims could be understood as seeking to establish a fear of persecution founded on some reason other than imputed political opinion, the Tribunal considered and rejected the accumulation of those claims as is made clear by the penultimate paragraph of its reasons; "In light of the totality of the information before it, the Tribunal concludes that there is not a real chance in the foreseeable future that the Applicant faces persecution on account of his real or imputed political opinions or for reason of being Tamil, either for those reasons alone or in combination. While the government is not in a position to guarantee the safety of all innocent civilians and there is evidence of ongoing terrorist attacks directed at high profile public figures and public institutions and consequent roundups of Tamils, the Applicant's chances of persecution are no more than remote. The Tribunal concludes that he does not face a real chance of detention and serious mistreatment either at the airport on arrival or at a later time in Colombo." (emphasis added) 27 Finally, the Tribunal expressly referred to the "cumulative claims of the applicant" when it said, in the concluding paragraph of its reasons; "Having regard to the cumulative claims of the Applicant, the Tribunal determines that he does not face a real chance of persecution for a Convention reason and therefore is not a person to whom Australia has protection obligations under the Convention and Protocol and are not entitled to a protection visa." (emphasis added) 28 I consider that both the structure of the Tribunal's decision and the words in which it has been expressed indicate that it did not ask itself a wrong question. Nor, given the findings of fact which it made in discharge of the function exclusively entrusted to it, can it be said to have taken into account some irrelevant consideration or to have failed to take into account some relevant consideration in the sense used in the extract from Yusuf quoted at [22] above.

Conclusion 29 It will be apparent from the foregoing reasons that none of the applicant's attacks on the decision of the Tribunal which have been particularised as set out at [2] above, has succeeded. It is therefore unnecessary for me to consider whether the applicant's delay in instituting the proceedings in the High Court should disqualify him from relief to which he is otherwise entitled. In the result, the application for prerogative relief or an injunction against the Minister, insofar as it is based on any of the grounds remitted to this Court, must be refused. The applicant should pay the respondent's costs of the proceedings in this Court. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate: Dated: 19 October 2001 Counsel for the Applicant: Mr T Hurley

Solicitor for the Applicant: Ravi James & Associates

Solicitor for the Respondent: Australian Government Solicitor