Applicant M185 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT Introduction 1 The appellant is a Burgher from Sri Lanka. He claimed to be entitled to a protection visa on the ground of having a well-founded fear of political persecution if he were to return to Sri Lanka. 2 A delegate of the respondent refused the appellant's claim and the Refugee Review Tribunal ('the RRT') affirmed the delegate's decision. The appellant's application to review the decision of the RRT was dismissed by the primary judge (Finkelstein J) and the appellant has now appealed to a Full Court against the order dismissing his application. 3 The appellant's ground of appeal is that the primary judge erred in law in failing to find that the RRT fell into jurisdictional error by taking into account two irrelevant considerations namely: (a) the fact that the appellant's wife did not give evidence at the RRT hearing; and (b) the rejection of the appellant's brothers' applications for asylum by differently constituted RRTs. 4 The appellant also seeks leave to rely upon an additional ground of appeal namely, that the primary judge erred in law in failing to conclude that the RRT failed to accord procedural fairness to the appellant when it discounted the evidence of the appellant's wife without warning the appellant it would do so. The RRT's decision 5 The RRT's decision was helpfully summarised in the respondent's submissions: '3.1 Before the Tribunal, the appellant claimed that, by reason of: (a) his imputed political opinion resulting from his former membership of the Janatha Vimukthi Peramuna ("JVP"); and (b) his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam ("LTTE"); he faced a real chance of persecution at the hands of the Sri Lankan authorities if he returned to Sri Lanka in the reasonably foreseeable future. 3.2 In particular, he relevantly claimed that: (a) he was a member of the JVP from 1985 for approximately 14 months; (b) his duties with the JVP mainly involved administrative work, but he also put up posters, sent letters and drove vans on behalf of the JVP; (c) on 1 August 1995, the Sri Lankan authorities detained the appellant for questioning; he was held for four days during which time he was tortured; (d) a few days after his release, the Sri Lankan authorities detained the appellant and his wife; he was detained for approximately one hour and his wife was detained for five hours; and (e) the appellant and his wife were not charged with any offence but the appellant was required to report each month to the police station. 3.3 The Tribunal did not accept that the appellant faced a real chance of persecution for any Convention reason if he were to return to Sri Lanka. Specifically, the Tribunal found that: (a) country information indicated that Burghers were unlikely to support the JVP, which was a strongly pro-Sinhalese party; (b) the appellant was unable at or prior to the Tribunal hearing to outline any compelling reason for joining the JVP or to provide any detail concerning its policies; (c) the appellant's evidence at the hearing about his period of membership of the JVP and about his work for the JVP after he ceased to be a member was inconsistent with his earlier claims; (d) it was not therefore satisfied that the appellant ever had an association with the JVP; (e) in any event, the only adverse consequence which the appellant claimed to have encountered between 1985 and 1995 was occasional questioning, which fell well short of persecution; (f) the alleged detention in 1995 occurred almost a decade after the appellant had left the JVP, at a time when it was a legal entity, and related to serious crimes that occurred over ten years previously; (g) at the hearing, the appellant did not recall, until he was prompted by the Tribunal, that, when he was allegedly detained in 1995, he had been questioned about [his] two brothers' activities and associations; (h) neither the appellant nor his wife was charged with any offence after the alleged detention in 1995; (i) it had not been claimed that the appellant's wife encountered any problems with the authorities following her release without charge; (j) even though the appellant claimed that he was placed on reporting conditions, he was able to depart Sri Lanka legally a few months after the second detention; (k) several features of the appellant's evidence were unsatisfactory: (i) firstly, his alleged treatment was at odds with country information about the status of the JVP in 1995 and the response of the authorities to former members having the kind of profile described by the appellant; (ii) secondly, his evidence was somewhat inconsistent; (iii) thirdly, it seemed "anomalous" that the authorities would wait for so many years before involving the appellant in the investigation of crimes and then, if there was continuing interest in him, not prevent his departure from Sri Lanka; (l) therefore, it was not plausible that either the appellant or his wife were detained or, in the case of the appellant, placed on reporting conditions; (m) there were no country information reports that indicated that a person with the profile claimed by the appellant faced a real chance of persecution for a Convention reason; and (n) country information also indicated that those with former or current JVP associations akin to those claimed by the appellant had nothing to fear from the Sri Lankan authorities.' 6 One further matter should be briefly mentioned. The RRT informed the appellant that it had considered all of the papers relating to his case but 'was unable to make a favourable decision on this information alone'. The appellant was then advised that the RRT had arranged for him and 'any other person included in [the appellant's] application to give oral evidence'. At the hearing before the RRT the appellant, but not his wife who was a person included in his application, gave evidence to the RRT. The primary judge's decision 7 The matters sought to be relied upon by the appellant in the present appeal were considered at [14] and [15] of his Honour's reasons: '14. The final complaint is that the tribunal took into account two irrelevant considerations, first the failure of the prosecutor's wife to attend the hearing and, second, the two failed applications for asylum by the prosecutor's brothers. For a time I was troubled by the first of these submissions. On one view, the tribunal may have discounted the wife's evidence because she was not called to verify her statement. If that is what the tribunal did, it would be unfair and therefore in error, unless the prosecutor was warned of the risk of not calling his wife. On the other hand, the tribunal does not say that this is how it approached the wife's evidence. The tribunal made a comment that the wife had not given evidence. It may be that, by this comment the tribunal meant no more than the wife may have been able to give more favourable evidence for the prosecutor's case if she had been called. As things stand I am not prepared to draw the inference that the tribunal refused to take into account the wife's evidence because of her absence. The extent to which it gave particular weight to that evidence was, of course, a matter for the tribunal. 15. I make the same observations about the two brothers' failed applications for asylum. That fact was referred to in the tribunal's reasons. It is apparent that the tribunal had available to it the reasons for decision in those cases. The tribunal did not say what inference, if any, it drew from the fact that the applications had been unsuccessful, and it would be wrong of me to guess what use the tribunal made of it. In any event, I am by no means satisfied that it was wrong for the tribunal to have regard to the reasons for the decisions in those other cases although, without further argument. I would not be prepared to hold the tribunal could make any use of the opinions expressed by other tribunals on matters relating to the brothers' credit.' Reasoning (a) Irrelevant considerations 8 As was explained by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ('Yusuf') at 347-348, the considerations that are, or are not, relevant to the RRT's task of making its findings in a matter before it are to be identified primarily, perhaps even entirely, by reference to the Migration Act 1958 (Cth) ('the Act'), rather than the particular facts of the case that the RRT is called on to consider. Their Honours stated at 348-349 ([73]-[74]): 'It is, of course, essential to begin by considering the statutory scheme as a whole. … On analysis, however, the asserted duty [of the RRT] to make findings may be simply another way of expressing the well-known duty to take account of all relevant considerations. The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider. In that regard it is important to recall, as Brennan J said in Attorney-General (NSW) v Quin: "The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison: 'It is, emphatically, the province and duty of the judicial department to say what the law is.' The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.' (emphasis added, footnotes omitted) 9 More recently, in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 it was argued that questioning of one of the appellants about the Catholic religion and the use of his answers constituted taking into account extraneous material or material required not to be taken into account. On this point, Allsop J (with whom Moore and Tamberlin JJ agreed) stated at 285 [123]: 'I disagree. It was an enquiry that was open to the tribunal. There is nothing in the Migration Act or the general law to make such an enquiry necessarily irrelevant as a matter of law in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24.' (emphasis added) 10 The reasons and findings of the RRT in a particular matter may reveal an error of law on its part. However, as the passages cited above make clear, reviewable error on the part of an RRT in respect of failing to take into account relevant considerations, or taking into account irrelevant considerations, is an error that arises as a matter of law, rather than an error that is centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts. 11 In the present case, the RRT was required to consider whether the acts of past persecution complained of by the appellant have occurred. The Act does not limit the matters to which the RRT might have regard in determining that question. Facts that may be material to credibility, the likelihood of the appellant's version of the events, and any corroboration of that version, are all matters to which the RRT might have regard. The weight to be given to the matters the RRT regards as material to its enquiry is a matter that is entirely for it to determine. 12 The two considerations complained of by the appellant appeared in the reasons of the RRT under the heading, 'Discussion of Evidence and Findings'. After observing that DFAT material suggested that Burghers to whom DFAT spoke, were 'amused by the suggestion' that persons of such origin would assist the JVP, the RRT stated: 'The applicant was unable at the hearing and previously to outline any compelling reason for joining the JVP, or to provide any detail concerning its policies. He has at all times claimed an association with the JVP without any reference to its structure or to the steps required of recruits (see Rohan Gunaratna, op. cit.). At the hearing he gave evidence that it's at odds with his earlier claim concerning the period of his membership and with his previous claim that some time after he left the JVP he was required to drive vans for the organization on a few occasions. In assessing all the evidence the Tribunal is not satisfied that the applicant ever had an association with the JVP. In any event, it is apparent that the only adverse consequence encountered by the applicant at the hands of the authorities between 1985 and 1995 was occasional questioning. Such a consequence falls well short of persecution. In relation to the applicant's claim that he and his wife were detained in 1995 the tribunal makes the following observations. The applicant was allegedly detained, almost a decade after he said that he left the JVP, at a time when it was a legal entity, for questioning about serious crimes that occurred in 1984 or thereabouts. He did not recall at the hearing, until prompted by the Tribunal, that he was also questioned about [his] two brothers' activities and associations. Those brothers' applications for asylum have been rejected by decisions of the Tribunal, differently constituted (see decisions V95/03650 and V96/04650). The applicant's wife, about whom somewhat inconsistent evidence has been given concerning the consequences of her alleged detention, did not give evidence at the hearing. Her alleged questioning by the authorities was in relation to the applicant's alleged former association with the JVP. Neither the applicant nor his wife were charged with any offence. It has not been claimed that his wife encountered any problems with the authorities following her release without charge. Even though the applicant claims he was placed on reporting conditions he was able to leave Sri Lanka legally a few months after his second period of detention. The Tribunal finds several features of the applicant's evidence to be unsatisfactory. His alleged treatment is at odds with country information cited below concerning the status of the JVP at the time and the response of the authorities to former members having the kind of profile outlined by the applicant. His evidence is somewhat inconsistent. As well, it seems anomalous that the authorities would wait for so many years before involving the applicant at all in the investigation of crimes and then not prevent his departure from Sri Lanka if there was a continuing interest in him. In considering all the circumstances, the Tribunal does not find it plausible that either the applicant or his wife were detained or, in his case, placed on reporting conditions as he has claimed.' (emphasis added) 13 In context, it is clear that the references to the appellant's wife failing to give evidence and to the appellant's brothers' asylum cases are references to two incidental matters of fact. When those matters are considered in context, it cannot be said that either matter is necessarily irrelevant as a matter of law. Rather, both of the matters were capable, as a matter of law, of being considered by the RRT. If it transpired that the RRT's consideration of those matters revealed an error of law, Wednesbury unreasonableness or a denial of procedural fairness on its part then there may be reviewable error. But no such contention has been advanced in the present case. It follows that the ground relied upon by the appellant must therefore fail.