Balamurali v Minister for Immigration & Multicultural Affairs

BACKGROUND AND CLAIMS 4 The Tribunal set out the background and claims of the applicant in its decision. What follows is a brief summary of those matters. 5 The applicant claimed that in 1983 he and his family moved from Colombo to Jaffna to avoid communal violence. Between 1987 and 1989 he was a member of the student wing of the Liberation Tigers of Tamil Eelam (LTTE). 6 The applicant claimed that he was detained in August 1989 and was seriously mistreated until he was released one month later. 7 In 1990, the applicant claimed, his family returned to Colombo. In 1993 after the assassination of President Premadasa he was detained for two weeks and seriously mistreated as a result of his former association with Tamil groups. He was released after payment of a bribe. 8 In August 1994, following the election of President Kumaratunga, he visited Jaffna to attend a festival. He claims that on his return he was asked by one of the Tamil groups, the Eelam People's Democratic Party (EPDP) whether the LTTE was willing to enter into peace negotiations. He responded that the LTTE was so inclined. When the peace negotiations broke down in the following year he was accused of having lied about the intentions of the LTTE and was detained for a week and accused of having strong links to the LTTE. He was again released after payment of a bribe. 9 The applicant also claimed that he was detained after two bomb blasts in October 1995 and January 1996. On each occasion he was detained for a day during which time he was beaten and asked about his connections with the LTTE. He claimed that he remained at risk of persecution because his association with the LTTE was known to the authorities since his detention in 1989. 10 The applicant also claimed that he had worked on the development of a hydro-electric system with another person. That work had brought him to the attention of the authorities and the other person had been killed as a result of his trade union activism. The applicant also claimed that he was at risk of serious harm because he was known by the same diminutive as an LTTE activist.

THE DECISION OF THE TRIBUNAL 11 The Tribunal found that the applicant's role with the student wing of the LTTE was minor and of short duration. 12 The Tribunal accepted that the applicant was detained in 1989 but found that the detention occurred a long time ago, that the applicant was eventually released without charge, was able to return to Colombo and claimed no further difficulty until May 1993. 13 As to the applicant's claim of detention in May 1993 the Tribunal considered that the eventual release without charge indicated that the applicant did not remain under suspicion of involvement in the murder of President Premadasa. 14 The Tribunal rejected the applicant's claim to have been a conduit in the peace process with the LTTE finding that the profile of the applicant's background and the circumstances of his alleged involvement made it implausible that he played any such role. The Tribunal also observed that the applicant did not attempt to leave Sri Lanka until mid 1996 although he held a valid passport in 1993. 15 The Tribunal then turned to the claims of detention in October 1995 and January 1996 and stated: "The applicant's claims that he was again detained in October 1995 and January 1996 were not advanced in his initial application nor in a later detailed statement. It is not conceivable that he would omit such important claims if they were true; they are significant and recent events underscoring his alleged fear of persecution. The Tribunal notes that the level of interest the applicant alleges was shown in him by the authorities is at odds with his lack of any recent association with the LTTE; his lengthy period of residence and work in Colombo; and the status of his family in Colombo." [underlining added] 16 Next, the Tribunal considered that it was inconceivable that the authorities would have permitted the applicant to leave Sri Lanka if they had had any interest in him. 17 The Tribunal next rejected, for reasons stated, the claim by the applicant that he had a fear of persecution arising from his involvement in the development of the hydro-electric system, and from sharing the same diminutive as an activist with the LTTE. 18 The Tribunal then dealt with several other matters which are not relevant to the present proceeding.

THE ARGUMENTS AND REASONING ON THE REMITTED APPLICATION

The Factual Issue 19 Each of the arguments relied upon by the applicant depended on the proper interpretation of the Tribunal's statement that: "The applicant's claims that he was again detained in October 1995 and January 1996 were not advanced in his initial application nor in a later detailed statement." 20 Mr Hurley, who appeared as counsel for the applicant, accepted that the Tribunal was correct in concluding that the claims of detention in October 1995 and January 1996 were not advanced in the applicant's initial application. However, he contended that the Tribunal wrongly concluded that these claims of detention were not included in the later detailed statement. 21 The initial application for a protection visa was lodged on 17 September 1996. The hand written detailed statement was lodged on the 22 October 1996. 22 The statement related the relevant events in chronological order. Paragraph 19 dealt with the alleged detention in April 1995 arising from giving the EPDP a wrong assessment of the attitude of the LTTE to peace negotiations. In the following paragraph the applicant wrote "the Security force and the pro-government para-military groups act with a sense of Impunity. they harased [sic] me after each and every bomb incidents in Colombo: I shall tell in detail at the interview.[sic]" 23 On the applicant's argument the Tribunal found that there was no reference whatsoever to the claims of detention in October 1995 and January 1996. The applicant placed emphasis on the reference to the "omission" of those claims. Further, where the Tribunal said that the claims were "not advanced" the applicant suggested that the Tribunal meant that the applicant had made no reference to the claims at all. The error, it was argued, was that the statement did make the claims, but simply withheld the details of the claims until the interview. 24 The alternative view which was put by the respondent contended that the Tribunal relied on the lack of any specific reference to the nature of the harassment, namely, detention, and the time at which it occurred to say, in effect, that the claims were not made in terms, or in detail. That is to say, the Tribunal did not conclude that there had been no reference at all to the claims, but rather, the Tribunal observed that the particular elements of the alleged incidents were not stated. Thus, the Tribunal was saying that the lack of reference to the particular features of the alleged incidents in the initial application and the detailed statement made it unlikely that the incidents had occurred. 25 The applicant's argument probably requires the conclusion either that the Tribunal did not read the relevant part of par 20 of the statement, or failed to recall its contents. Neither is likely given the direct reference to the statement. It is more unlikely when one has regard to the entire contents of the statement. The statement dealt with previous incidents in detail, and where detention was involved, by specific reference to detention as the form of harassment. For instance in par 10 it was stated: "In the first week of August 1989 IPKF raided out house at Kondavil at mid-night. They arrested me and assaulted me in the prescence of my house people. They took me to a camp at Tellipallai union college. I was blind folded when I was taken in their military Truck. EPRLF Cadres were working hand in hand with IPKF in their military Activities.[sic]" [underlining added] 26 In par 17 it was stated: "On the 1st of May 1993 Mr Premadasa was assasinated in Colombo during may day Demonstrations by unknown people. Our house was raided by the Security forces. This time EPDP Cadres came with them arrested and detaimed [sic] me in unauthorised centre unknown to me. They kept me for two weeks. They tortured me and demanded to divulge the names of the LTTE Cadres known to me infiltrated Colombo [sic]. Later they told me that they would release me on payment of a ransom of RS400,000 and forced me to sign a letter of that Nature. When my father paid that amount they released me." [underlining added] 27 In par 19 it was stated: "Security forces and EPDP Cadres raided my home again on the latter past of April 1995 and detained me Extra-Judicially for one week.[sic]" [underlining added] 28 The fact that the previous incidents were described in detail by reference to specific dates and specific acts of detention makes it understandable that the generality of par 20 could have been seen by the Tribunal as, while not failing to refer to the claims at all, referring to the claims in such a generalised way as to make it unlikely that they were true. Thus it was open to the Tribunal to conclude that the applicant had not put forward the specific details of the claims of detention in October 1995 and January 1996 in the detailed statement.

The Legal Effect 29 The applicant did not pursue the grounds set out in par 2(a) and (c) of the order of the High Court remitting part of the matter to this Court. Thus, the applicant relied on the ground that the Tribunal did not have jurisdiction to make the decision (par 2(b)), and in relation to the error of law ground (par 2(d)), the applicant relied only on the first limb, namely that the decision involved an error of law being an error involving an incorrect application of the applicable law. 30 Upon examination both the jurisdictional error and the error of law were said to lie in the Tribunal wrongly concluding that the applicant had failed to make the claims concerning detention in October 1995 and January 1996 in the written statement. As the foundation for these grounds has not been made out it is not necessary to deal with the further matters argued. However, for completeness, I should briefly explain why the applicant would have failed on each of these grounds even if his primary factual contention had been accepted.

Jurisdictional Error 31 Mr Hurley contended that the erroneous finding that the applicant had failed to make the claims concerning detention in October 1995 and January 1996 in the written statement amounted to a jurisdictional error sufficient ground the relief sought. He contended that the Tribunal's conclusion resulted from the Tribunal asking itself the wrong question. 32 Mr Hurley relied upon Craig v State of South Australia (1995) 184 CLR 163 in which the High Court (Brennan, Deane, Toohey, Ghaudron and McHugh JJ) said at 179: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authorities or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 33 It is necessary to set out again what the Tribunal said on this issue, as follows: "The applicant's claims that he was again detained in October 1995 and January 1996 were not advanced in his initial application nor in a later detailed statement. It is not conceivable that he would omit such important claims if they were true; they are significant and recent events underscoring his alleged fear of persecution. The Tribunal notes that the level of interest the applicant alleges was shown in him by the authorities is at odds with his lack of any recent association with LTTE; his lengthy period of residence and work in Colombo; and the status of his family in Colombo." 34 The question which the Tribunal addressed was whether the applicant had a well founded fear of persecution. This was the correct question for the Tribunal to consider. In the course of considering that question it addressed the factual issue whether the applicant had been detained on the two occasions he claimed. In rejecting the applicant's claim that he had been so detained, in the very passage under examination, the Tribunal gave several reasons for rejecting the claims, namely, the level of interest shown in him by the authorities, his lengthy period of residence and work in Colombo, and the status of his family in Colombo. 35 The applicant's reliance on jurisdictional error arising from the Tribunal asking itself the wrong question is misconceived. To describe the Tribunal as having asked the wrong question is to extract from Craig a label which bears no relation at all to the alleged error made by the Tribunal. 36 At the very highest all that can be alleged against the Tribunal is that it made an erroneous finding of fact. 37 In Craig the High Court did include the making of an erroneous finding as a jurisdictional error. But this error only occurs if the Tribunal falls into an error of law which causes it to make an erroneous finding. In other words, a mere error in fact finding does not amount to jurisdictional error. So much emerges from the reference in Craig to the passage in Lord Reid's speech in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171 as follows: "But if it [the Tribunal] decides a question remitted to it for decision without committing any of these errors it is as much entitled to decided that question wrongly as it is to decide it rightly." 38 There has been a good deal of debate about the scope of Craig and whether it has eliminated the distinction in Australia between jurisdictional and non-jurisdictional error: see Re Keely; Ex parte Kingham and Another; Kingham and Others v Morris and Others (1995) 1 IRCR 311 and Re Australian Industrial Relations Commission; Ex parte Construction, Forestry, Mining and Energy Union (N41 of 1999); Mine Management Pty Ltd v Construction, Forestry, Mining and Energy Union and Another (N166 of 1999) (1999) 164 ALR 73 at pars 63 - 73; Returned & Services League of Australia (Vic Branch) Inc (Pascoe Vale Sub Branch) v Liquor Licensing Commission [1999] 2 VR 203, and Edwards v Justice Giudice [1999] FCA 1836 per Finkelstein J at pars 97-110. 39 In Edwards, Finkelstein J expressed the view that the High Court in Craig intended that errors which form the basis of the decision or a part of the process of reasoning, that is to say, errors or law which cause the Tribunal to err in the result, amount to error which will permit the decision to be quashed. This approach to Craig gives the widest scope to the notion of error and, hence, is most favourable to the applicant. However, even on this approach the applicant would not succeed. At most the alleged error was in a finding of fact which was not determinative of the outcome. Several other reasons were given for the conclusion reached by the Tribunal. The impugned reason was an alternative basis for the final view expressed by the Tribunal concerning the detentions. That conclusion was sustainable on the non-impugned reasons.

Error Of Law 40 Mr Hurley contended that the purported failure of the Tribunal to apprehend that the applicant did not, in his initial statements, omit his claim to have been detained in October 1995 and November 1996 was: "an error involving an incorrect interpretation of the applicable law. The applicable law is the power of the tribunal to decide an application by reference to something that's not in it. … [O]n analysis the tribunal's reasons will contain the error of law that it construed itself as able to consider matters other than in the valid application. So it's not considering the valid application which contained the claims; it's considering an application which did not contain the claims." 41 It is not easy to grasp this formulation of the argument. I take it to be an alternative way of putting the argument that the Tribunal made a jurisdictional error. For the reasons explained in relation to that argument this submission is also rejected.

Delay 42 The respondent contended that the Court should not grant relief to the applicant because he had delayed in instituting proceedings from the date of decision of the Tribunal on 17 April 1997 until the commencement of the proceedings in the High Court on 21 December 1998. In view of the conclusion that the applicant must fail on other grounds, it is not necessary to address this question.

Other Issues 43 Several other issues raised by the Court were addressed in written submissions. One of those issues was whether the Tribunal needs to be a party to proceedings such as this. In the event, these issues do not arise in this case and they are best left to be determined when it is necessary to do so.

CONCLUSION 44 The result is that the applicant is not entitled to any relief on that part of the proceeding remitted by the High Court. The balance of the proceedings remains to be determined by the High Court. The applicant must pay the respondent's costs of and incidental to the proceedings in this Court.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Solicitor for the Applicant: Ravi James & Associates

Solicitor for the Respondent: Australian Government Solicitor