Candyah v Minister for Immigration & Multicultural Affairs

Delay 9 In written submissions filed on 19 June 2000 the Australian Government Solicitor on behalf of the Minister contended that the applicant's delay in seeking the relief claimed was "a relevant consideration in the exercise of the discretionary powers of the Court pursuant to s 481 of the Act". I do not think s 481 is applicable. That section deals with the orders which this Court may in its discretion make "(o)n an application for review of a judicially-reviewable decision", that is to say an application under s 476(1) of the Act. The Court in the present proceeding is exercising a different jurisdiction, founded on the order of Hayne J of 23 November 1999 and s 44(2A) of the Judiciary Act. 10 In the course of argument in the High Court the question of delay was raised. On 22 November the following exchange took place between his Honour and Mr RRS Tracey QC, Senior Counsel for the Minister. "HIS HONOUR: Now, it would seem to me, Mr Tracey, and again I need assistance on this, to be necessary that I go to the stage of granting order nisi. MR TRACEY: Yes, your Honour. HIS HONOUR: As I say, my inclination is to grant order nisi on the grounds relating to RRT but stand over so much of the application as seeks to agitate grounds under 417 or other grounds. MR TRACEY: Your Honour, we would only wish to reserve our position to this extent on the orders nisi, your Honour. Your Honour will be conscious that these applications generally have been made well out of time. HIS HONOUR: Yes, I do. MR TRACEY: Now, your Honour, the reasons will presumably vary from case to case and one of the reasons that your Honour made orders on the last occasion was so that the particular reasons relating to each case would be exposed. Now, that has happened and, your Honour, we would not want to be deprived of the opportunity at an appropriate time should we be so instructed to ask the Court to vacate any order granting an order nisi on the basis that no proper basis had been established for the lateness of the application. HIS HONOUR: As opposed that is, Mr Tracey, to saying that delay represents a reason not to go from order nisi to order absolute, that is you would seek to reserve the position of striking at the order nisi? MR TRACEY: Well, yes, your Honour, because we may have had the opportunity to argue on a case-by-case basis that your Honour ought not to grant the order nisi for that reason. HIS HONOUR: Yes, I see. MR TRACEY: So that we would be urging you to exercise your discretion at the very early stage to avoid subsequent and unnecessary expense. HIS HONOUR: The horse has got a fair way out of the stable by the time I have remitted it, has it not, Mr Tracey? MR TRACEY: Yes, your Honour. HIS HONOUR: And that may be a matter that you will take into account in telling me what you have to tell me tomorrow morning. MR TRACEY: Yes, your Honour." 11 I interpolate the comment that when Mr Tracey speaks of asking "the Court" to vacate an order nisi he is obviously referring to the High Court, not the Federal Court. 12 On the following day, the matter was raised again: "HIS HONOUR: The question of what we do about the order nisi, what is your position about that because I, too, have given some further thought to that overnight? What do you want to seek to preserve, if anything? MR TRACEY: Your Honour, we do not seek to insist that the applicants cross the hurdle of persuading your Honour that there is a proper reason for the late applications in each case, so that we are therefore instructed not to oppose an order in each case to grant the order nisi at this stage, but the Minister does seek in each of the cases to reserve his right to argue, as a matter of discretion, when and if those matters come on for hearing in the Court, that the delay tends against the grant of relief." 13 I take that to mean that the Minister's position had changed since the previous day. He did not wish to oppose the grant, or seek the vacation of, an order nisi, the latter being something which obviously enough could only be done by the High Court itself. Rather he reserved the right to argue delay as a discretionary element to be taken into account against the grant of an order absolute. Since the matter that has been remitted to this Court is the application for an order absolute in relation to the Tribunal decision (as distinct from the s 417 decision), the question of delay falls to be considered along with other relevant matters. It is now not a question of enlargement of time. 14 Since as will hereafter appear I am satisfied that the application should fail on its merits, it need only be said that delay is a strong additional factor. I take into account the delay of almost two years in making the application to the High Court. If it be said that there was time taken up with the s 417 application, then more than a year passed after the advice of Ms Samos. The lack of financial resources is not substantiated in relation to this particular applicant; it appears only in the most generalised form in the unverified argument of another applicant. I accept there is no lack of prejudice in the forensic sense of missing witnesses, fading recollections etc. However there is prejudice in the sense of evasion of the clear legislative will that judicial review of Tribunal decisions is to be prompt: s 478(2).

The applicant's case before the Tribunal 15 The Convention ground relied on is imputed political opinion arising from the applicant's relationship with a friend Niranjala a fighter with the Liberation Tigers of Tamil Eelan (LTTE). A pro LTTE political opinion will be imputed to her, aggravated by the fact that she left the country in violation of reporting conditions. 16 The applicant is a single woman born in Battlocaloa in 1966. She is an ethnic Tamil and a Hindu. She moved to Trincomalee in 1974 and in 1988 to Colombo where she was employed as a computer operator. The family's move to Colombo was prompted by the harassment by the Indian Peace Keeping Force (IPKF) of her brother who was an LTTE supporter. The applicant was sympathetic to the LTTE although she did not join or provide any assistance. 17 In Colombo in 1990/91 her family's house was frequently raided by the authorities, especially after her brother went to the United Kingdom in violation of reporting conditions to which he was subject. 18 Niranjala was a close friend of the applicant from school days. Niranjala had joined the LTTE and become a fighter. In August 1994 Niranjala visited the applicant who was then living with her family in Colombo. The applicant persuaded her mother to allow Niranjala to stay with them. In November 1994 the police raided the house and arrested Niranjala. When the applicant explained that Niranjala was a friend who was staying with them she too was arrested. The two women were taken to police headquarters for interrogation and detained for three days before being released on reporting conditions. At this time a new government had taken power in Sri Lanka and was engaged in peace talks with the LTTE. 19 Niranjala continued to stay with the applicant's family. She and the applicant continued to report to the police as required 20 On 24 March 1995 Niranjala left the house and did not return. The applicant reported to the police station alone. That night the police called making further enquiries about Niranjala. After that they made frequent raids on the house searching for Niranjala and warning the applicant. 21 In mid February 1996 Niranjala arrived unexpectedly at the applicant's house. This was not long after the bomb explosion at the central bank in Colombo on 31 January, attributed to the LTTE, which had caused many deaths. Niranjala explained that she had to go to Jaffna after receiving orders. With great reluctance, and after pleading from Niranjala, the applicant and her family allowed her to stay. Although they feared the authorities, they also feared that if they refused they would experience retribution from the LTTE. 22 On 20 February 1996 the police raided the house and discovered Niranjala. They assaulted her, the applicant and the applicant's mother accusing them of being LTTE members because Niranjala was not registered as an occupant of the house and had not complied with her reporting conditions after 24 March 1995. The three women were taken to police headquarters. The applicant's mother was soon released but the applicant and Niranjala were kept in separate cells. The applicant was interrogated and beaten on her stomach, legs and cheeks. Her hair was pulled and her head banged against a wall. Her hair was ripped. On 1 March she was released again on reporting conditions. This after her mother paid a large bribe to a police officer. 23 After her release the applicant believed herself to be in grave danger. She thought the policeman who had taken the bribe might kill her to prevent her disclosing it, or that he or others might use violence to extort more money from the family. She therefore took advantage of the fact that her sister who had gone to Australia the previous year was due to be married in April 1996. On this basis she obtained a visa to visit Australia. Until her departure she again reported regularly to the police as required. She did not experience difficulty in this except that they often deliberately kept her waiting and verbally abused her. She does not know what happened to Niranjala after her own release. She was too frightened to make enquiries.

The Tribunal's reasons for decision 24 The Tribunal set out the statutory background and relevant statements of principle by the High Court and the Full Federal Court. It recounted the applicant's case as summarised above. The Tribunal then discussed the applicant's credibility. It paid particular attention to a letter from her employer dated 5 March 1996 submitted to the Australian High Commission in support of her visa application. The letter stated in part: "With reference to her leave application dated 24/2/96, special leave from 10/4/96 to 17/6/96 in order to attend her sister's wedding in Australia is granted, she will be re-employed soon after her return." 25 According to the applicant's account she was in police custody on 24 February 1996 so could not have applied for leave on that date. The Tribunal then recorded different explanations given for that discrepancy, none of which were found convincing. For example, the applicant said that her employer chose the date of 24 February 1996 only arbitrarily in order to comply with formalities. The Tribunal stated that it therefore did not accept the applicant's explanation and found that the letter demonstrated that she was not in fact in custody in late February as she claimed. The Tribunal then continued: "At the Tribunal hearing, I asked the applicant to give further details of her claimed detention. She gave the above account of quite brutal treatment without appearing at all affected in recounting it, notwithstanding that she appears to be a quite timid young woman whom one would expect to be severely traumatized by such treatment. She has, she says, no scars which would confirm the occurrence of the brutal physical treatment she allegedly experienced. This casts further doubt on her claimed detention." 26 After recording disagreement with some factual matters which the delegate had relied on in finding the applicant was not taken into custody in February 1996 the Tribunal said: "I feel bound to conclude, however, on the basis of the employer's letter of 5 March and the other considerations I have mentioned, that the applicant's account of being taken into custody in February 1996 is not true. As to the other parts of her application, I am prepared to extend the benefit of the doubt." 27 Under the heading "The Prospect of Persecution" the Tribunal said that after dismissing the claim of detention in 1996 it was left with the facts that the applicant was a young Tamil woman detained for three days in 1994 who had experienced certain difficulties some years ago with the authorities and the IPKF. To the Tribunal the matters prior to 1994 did not seem to be relevant any longer to a fear of persecution. They were well in the past, had not had any recent repercussions, and on the applicant's own accounts were instances of harassment rather than persecution. In relation to the 1994 incident the applicant was released after three days without having to pay a bribe, complied with conditions of her release and no further interest was shown in her by the authorities (apart from the rejected claims relating to 1996). The authorities were plainly concerned with Niranjala rather than the applicant. The applicant obtained a passport shortly afterwards with no difficulty. Thus the Tribunal saw no justification in inferring a real chance of persecution now on the basis of this incident. 28 The Tribunal then proceeded to consider whether the applicant faced a real chance of persecution simply on the basis of being a Tamil. The Tribunal said: "My understanding and assessment of the evidence is that as a general rule the following propositions hold true at the present time: . The present Sri Lankan government does not persecute Tamils per se, but it or its agents sometimes subject certain Tamils to mistreatment amounting to persecution by reason of a suspected connection to the LTTE; . They draw a distinction between ordinary Tamil civilians and suspected members or supporters of the LTTE; . Those mostly at risk are young Tamil men from Jaffna or the northeast. Other relevant factors are: length of residence in Colombo; possession of an identity card; stable employment, having family or other connections, or social support network; ability to speak Sinhala. Of course, a person with a real connection to the LTTE will be particularly at risk. . Most Tamils who are detained are questioned and released within 48 hours. . There are some safeguards which are in place to prevent abuse of power by officials, but these are frequently disregarded." 29 The Tribunal then proceeded to quote part of what it referred to as a "massive quantity of information available on this issue, some more cogent than others". This material included reports from the Canadian High Commission in Colombo, the Australian High Commission in Colombo, Amnesty International, Human Rights Watch World Report, Reuter Business Briefing, The Age, and the United Nations High Commission on Refugees. The Tribunal took the view that detention for not more than 48 hours for the purpose of questioning, when not accompanied by violence, was not a form of persecution when considered in the light of the very real threat posed in Sri Lanka by the terrorist activities of the LTTE. It was a justifiable response to that threat. On the other hand, prolonged detention could not be justified in that way unless there were reasonable grounds to suspect the detainee of criminal or terrorist activity. The use of violence against a detainee could not be justified under any circumstances. 30 In reference to the applicant, although young she was female, not male. She has held stable employment in Colombo since 1988. She has had no connection of any kind with the LTTE nor does any member of her family. She can speak Sinhala and has Sinhalese friends and workmates. The Tribunal did not think the applicant suffered a real chance of persecution. She had lived uneventfully in Colombo since at least 1994 and even then the difficulties she had experienced came from her association with Niranjala rather than simply from being a Tamil. 31 I now turn to the applicant's arguments in this Court.

Not observing procedures - failure to request medical examination 32 Counsel submitted that the ground in s 476(1)(a) was made out because the Tribunal failed to observe the procedure in s 427(1)(d). That provision reads: "1. For the purposes of the review of a decision, the Tribunal may: (a) … (b) … (c) … (d) 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 the Tribunal a report of that investigation or examination." 33 This argument was based in a passage in the Tribunal's reasons, already quoted at par 25 above, where the Tribunal discussed the way the applicant gave evidence. 34 Counsel argued that in the circumstances s 427(1)(d) imposed upon the Tribunal a duty to require the Secretary to conduct a medical examination because of the view the Tribunal took "of the relevance of the applicant's present state of health". There was no indication that the Tribunal member had any appropriate expertise for assessing whether, if the applicant's claims of torture were true, she might recount them in an apparently unaffected manner or whether there would be no scars. Counsel relied on a decision of a five member Full Court in Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553. 35 On closer examination, Singh does not assist the applicant. The majority (Black CJ, von Doussa, Sundberg and Mansfield JJ) observed (at 558) that there had been decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in which it had been said that there may be occasions when a decision-maker should initiate enquiries to discover information. However these decisions had relied on Wednesbury unreasonableness and failing to take into account a relevant consideration. The majority pointed out those grounds had been removed for the purposes of Refugee Review Tribunal review by s 476(2)(b) and 476(3)(d) of the Act. However the majority thought that in an appropriate case failure to make enquiries might constitute a failure to act according to substantial justice as required by s 420(2)(b). After discussing some of the authorities the majority continued (at 560): "Accepting for the purposes of argument that s 420(2)(b) requires a procedure to be observed in connection with the making of a decision within s 476(1)(a) the question is whether the obligation to act according to substantial justice requires the Tribunal to make an enquiry of the nature suggested here." 36 An analysis of certain provisions of the Act showed (at 561) "… that the Tribunal's role in cases that come before it for review is not a passive one, although the circumstances in which the Tribunal could be found to be under an obligation to make a particular enquiry will no doubt be rare, as they have been in cases under the AD(JR) Act." 37 The majority then went on to hold that in the circumstances of the instant case the respondent had fallen short of showing that the failure to make enquiries involved a denial of substantial justice. 38 Subsequently to Singh, the High Court held in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 that s 420(2)(b) did not provide a "procedure" within the meaning of s 476(1)(a). Thus the assumption on which the majority proceeded in Singh was removed. Accordingly the present submission is not open as a matter of law. In any case the power (and duty, if duty be implicit) under s 427(1)(d) is conditioned upon the Tribunal thinking it necessary to have a medical examination. There is no evidence that the Tribunal did so think, or that it ought to have so thought. Its observations about the applicant's demeanour do not purport to be non-expert medical opinion but rather the Tribunal drawing on its own experience of how people act in relation to stressful events or the recounting of them. This is within the function of a lay fact-finder.

Findings on material questions of fact 39 Counsel argued that the Tribunal had failed, contrary to s 430(1)(c), to set out findings on some material questions of fact. He submitted, and I accept, that at the moment a single judge is bound by the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681. Thus if there is such a failure the ground specified by s 476(1)(a) would be established. 40 The material questions of fact in respect of which it was said there was a failure to set out findings were: (i) whether Niranjala would again be captured and detained; and (ii) whether if that occurred it would mean there was a real chance of the applicant suffering persecution. 41 In my view s 430(1)(d) did not require the RRT to findings on facts which may or may not occur in the future. Clearly enough, as the authorities show, the Tribunal was required to engage in a degree of speculation as to the future. This is an aspect of the application of the "real chance" test. 42 The Tribunal accepted that the applicant's arrest in 1994 was as a consequence of Niranjala staying with her. It found that this arrest did not amount to persecution. The applicant's account of the subsequent detention in February 1996 was rejected as being untrue. The Tribunal gave detailed reasons for that rejection. It also considered the chance of the applicant's suffering persecution by reason of her being a Tamil, irrespective of her connection with Niranjala, and again after detailed consideration found that there was no base for a real chance of persecution in that way. 43 Viewed overall, the Tribunal made findings as to the facts of the applicant's life in Sri Lanka which she said gave rise to a well-founded fear of persecution. The Tribunal accepted some and rejected others, and then correctly applied the law so as to reach a conclusion that it was not satisfied she was a refugee within the meaning of the Convention.

"What if I am wrong?" 44 Counsel argued that the Tribunal failed to consider whether there was a real chance of persecution because it may have been wrong in rejecting her claim of detention and torture in 1996 and failed to consider whether there was a real chance of persecution because of the risk of repeated detentions as a Tamil. 45 I do not accept this submission. The supposed "What if I am wrong?" test is not part of the decision-making process with which the Tribunal is charged: Minister for Immigration and Ethnic Affairs v Rajalingam (1999) 93 FCR 220, S v Minister for Immigration and Multicultural Affairs [2000] FCA 735.

Actual bias 46 On 21 October 1997 the Tribunal member posted on his personal Internet site an account of his life and involvement with refugee matters. This included statements that applicants to the Tribunal were "usually deserving cases and decent human beings even if they lied through their teeth (as they often do) in their desperation to find a better life … We work with dishonesty and corruption on all sides …[there are] applicants who weave webs of lies …." 47 That statement has been relied on by a number of applicants for refugee status whose applications were rejected by the present Tribunal member. The first such application was one which I heard: Ferati v Minister for Immigration and Multicultural Affairs (1998) 54 ALD 381. I said (at 383): "Counsel for the applicant submitted that this publication of Dr Hudson's views amounted to actual bias: Migration Act (Cth) s 476(1)(f). I do not think it shows actual bias in the sense of bias held by Dr Hudson against this particular applicant. However there is in my opinion a clear case of apprehended bias. As such there was a failure to act according to substantial justice: s 420(2)(b), Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300. Counsel for the Minister did not contend that apprehended bias, if established, would not be a ground for review." 48 Subsequent judges took essentially the same view: Applicant LSLS v Minister for Immigration and Multicultural Affairs [2000] FCA 211 (Ryan J) at par 52, James v Minister for Immigration and Multicultural Affairs [2000] FCA 804 (Sundberg J) at par 11. 49 But subsequently to Ferati the High Court overruled the decision of the Full Court in Eshetu. It is now clear that apprehended bias, as distinct from the actual bias under s 476(1)(f), is no longer a ground for review: Applicant LSLS at par 43. I do not see any reason for holding that the Tribunal member in this case was affected by actual bias in the sense that he had a closed mind to the issues raised by this particular applicant and was not open to persuasion by her case: Re JRL ex parte CJL (1986) 161 CLR 342, Vakauta v Kelly (1999) 167 CLR 568, Australian Broadcasting Tribunal v Laws (1990) 170 CLR 70, Jia Le Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951.

Orders 50 I find that the matters which have been remitted to this Court do not disclose a ground for the relief sought. There will be an order that the applicant pay the costs in the Federal Court, including reserved costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Solicitor for the Applicant: Ravi James & Associates

Solicitor for the Respondent: Australian Government Solicitor