De Silva v Minister for Immigration & Multicultural Affairs

The Tribunal's findings 10 The Tribunal accepted that the applicant and his family, especially his father, had been prominent with the UNP in ways the applicant claimed. It found that the denial of promotion to the rank of army officer and of appointment to the cricket board did not amount to persecution. 11 The Tribunal found it implausible that the applicant would be targeted by members of the PA and have his life threatened virtually at the same time that he was being wooed to join their ranks. It pointed out that the applicant did not know the identity of any of those who were allegedly involved in making threatening calls and visits or in throwing a petrol bomb. On the basis of information, including information acquired from the Australian Department of Foreign Affairs and Trade and the United States Department of State, the Tribunal found that there is some evidence of random violence in Sri Lanka particularly in the context of political campaigns, but no evidence of continuing targeted violence, save for some districts around the time of local elections, and then often involving the Liberation Tigers of Tamil Eelam. The information indicated that the authorities are generally willing to take action in relation to complaints against PA and UNP supporters involved in alleged criminality. The authorities afford protection to all citizens in so far as can reasonably be expected of them. 12 In view of the vagueness of the applicant's evidence about the problems he faced, and the implausibility of aspects of his claims, the Tribunal was not satisfied that he encountered persecution by reason of his political opinion. If the applicant were to have been subjected to acts of intimidation and threats in the context of a local election campaign, he would have been able to avail himself of the protection of the state in so far as it could reasonably be provided. The applicant's visa to enter Australia was issued before he claimed to have encountered problems of such severity that he felt the need to flee Sri Lanka. The Tribunal therefore concluded that the applicant made arrangements to visit Australia not because of political persecution but in order to attend a cricket series. 13 The Tribunal expressed serious doubts as to whether the applicant ever relocated to Colombo, except perhaps briefly in relation to arrangements for a visa to enter Australia. Because the information the Tribunal had made it clear that the police do not act partially according to the will of either major political party, and for the reasons outlined above, the Tribunal did not accept that the applicant was pursued in Colombo by members of the PA or by the authorities, or that any rudeness or lack of cooperation he encountered when he attended a police station there was attributable to his political opinion. The Tribunal also did not accept that members of the PA or others continued to display any intent to persecute the applicant now or in the foreseeable future due to his UNP connections. It found that the applicant's evidence in that regard had been contrived to bolster false claims to refugee status. 14 The Tribunal rejected as irrelevant certain letters of reference. In so far as those letters touched on the applicant's situation in Sri Lanka, it gave no weight to them because the writers had no independent knowledge of that situation. For the same reason, it gave no weight to the evidence of the applicant's brother about the situation in Sri Lanka. It rejected the brother's claim that family property was destroyed in every election campaign as not supported by the applicant's own evidence or, at the very least, exaggerated. 15 The Tribunal found that the letter from the police and the letter from the UNP chief organiser were "contrived and not genuine". It did so for several reasons: · The applicant had not submitted the letters until 7 December 2000, some twenty-one months after he said he had received them. On his evidence, he had received the letters before his initial application for a protection visa and before the decision of the delegate. He sought to blame his adviser for the delay, claiming that he had provided the adviser with the information when he received it and expected the adviser to forward it to the Department of Immigration and Multicultural Affairs in a timely way. He did not explain to the satisfaction of the Tribunal why he had forwarded the correspondence so much later if it had been in the possession of his adviser for so long. The adviser told the Tribunal that he had only received the correspondence from the applicant a short time before the Tribunal hearing. The adviser also said that he had advised the applicant that the applicant was to forward material to the Department because much of the adviser's work was on a voluntary basis.

· The Tribunal found it implausible that the police in Sri Lanka would refuse to acknowledge a complaint by the applicant and then later provide a letter stating that he had to flee his home area due to threats to his life by political opponents. · The Tribunal also gave weight to information provided by the Department of Foreign Affairs and Trade to the effect that document fraud is widely and well practised in Sri Lanka. It includes production or falsification of immigration-related documents. It is also possible to arrange for genuine documents from officials for a price or some other consideration. There is high level endorsement or sponsorship of irregular visa applications. 16 In all the circumstances of the case, the Tribunal found that the applicant did not have a well-founded fear of persecution for any reason falling within the Convention.

The grounds for judicial review 17 Section 476 of the Migration Act sets out the grounds on which an application may be made to the Court for judicial review of decisions, including decisions of the Refugee Review Tribunal. For the purposes of this case, the relevant provisions of s 476 are as follows: "(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: … (d) that the decision was an improper exercise of the power conferred by this Act or the regulations; … (f) that the decision was induced or affected by fraud or by actual bias; (g) that there was no evidence or other material to justify the making of the decision. (2) The following are not grounds upon which an application may be made under subsection (1): (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power. (3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to: (a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and (b) an exercise of a personal discretionary power at the direction or behest of another person; and (c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; but not as including a reference to: (d) taking an irrelevant consideration into account in the exercise of a power; or (e) failing to take a relevant consideration into account in the exercise of a power; or (f) an exercise of a discretionary power in bad faith; or (g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c). (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 18 It has been recognised many times by the Court that it is no part of the function of the Court, in reviewing a decision of a Tribunal pursuant to s 476, to decide whether the Tribunal has made findings of fact that are correct. For example, in Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 at [27], the Full Court said: "It is beyond question that the power of the Court under s 476(1) generally and s 476(1)(g) in particular does not extend to a re-examination of any of the factual matters ventilated before the Tribunal."

The application for judicial review 19 The applicant's original application to the Court was filed on 29 January 2001. It did not refer to any of the grounds specified in s 476 of the Migration Act. The only ground referred to in the application was: "The evidence provided was over looked (sic) and not taken any (sic) consideration." 20 By orders made by consent on 2 April 2001, I directed the applicant to file and serve an amended application, with proper particulars of the grounds relied upon, by 27 April 2001. The applicant filed an amended application on 26 April 2001. In this document, he stated that he is aggrieved by the decision of the Tribunal because it contravenes s 476(1)(f) and (g) of the Migration Act. The grounds specified in the application referred to s 476(3)(b) and (c) of the Migration Act. 21 The order made on 2 April 2001 also made provision for the subsequent filing of contentions of fact and law by both parties. The applicant's contentions were filed on 9 May 2001. They refer to the same grounds as those referred to in the amended application. The applicant relies on s 476(1)(f) in relation to both the letter of the chief organiser of the UNP and the letter from the police. He contends that the Tribunal was biased in making its findings on these letters without verification of the material on which it relied. The applicant also relies on s 476(1)(g) in relation to both letters. He contends that he explained at the hearing that the letters were duly submitted to his migration agent who failed to submit them to the Tribunal. The migration agent displayed complete disorganisation and failure to maintain a system in dealing with his clients. Without justifying any evidence to prove that the applicant had failed to submit the documents to him in time, the Tribunal accepted his version (I assume on the issue of why the letters were not produced earlier), to the disadvantage of the applicant's claim. The applicant also contends that the Tribunal exercised a personal discretionary power at the direction or behest of another person and in accordance with a rule or policy without regard to the merit of the particular case. He claims to have been treated unfairly in fact and law. 22 Together with the written contentions, the applicant submitted to the Court other material. The material included two statutory declarations by an interpreter and translator, who knows the applicant. Taken together, the declarations state that the declarant has contacted the writers of the letters from the UNP chief organiser and the police by telephone, and received confirmation that the letters were issued on the dates which they bear and on the official letterheads on which they are written. The material includes a lengthy handwritten statement, apparently of the applicant. In that statement, the applicant takes issue with many of the Tribunal's findings, restates his evidence in relation to the matters the subject of those findings and offers further evidence. The material also includes two letters of reference from members of the Sri Lankan Parliament, dated in March 2001.

Additional evidence 23 It is not open to the Court to receive the additional material on which the applicant seeks to rely, namely the two statutory declarations, the handwritten statement and the two letters from members of Parliament, for the purpose of forming its own view as to the facts. The scheme for dealing with applications for protection visas under the Migration Act is that an applicant is able to have two attempts at establishing the facts that would justify the grant of a protection visa. The first attempt is when material is submitted to the Department of Immigration and Multicultural Affairs to be dealt with by a delegate of the Minister. If the application fails at that stage, the second occasion is when the Tribunal conducts a review. An applicant has the opportunity to submit documentary material to the Tribunal prior to a hearing and to give evidence and call other witnesses at the hearing. 24 As I have said, the power of the Court on a judicial review of the Tribunal's decision is limited to the grounds specified in s 476 of the Migration Act. Judicial review by the Court does not afford an applicant a third opportunity to seek to have the facts determined in his or her favour. The additional material filed by the applicant seeks to do just that. It seeks to persuade the Court to substitute findings favourable to the applicant for those made by the Tribunal. The Court is simply unable to do that. If the Tribunal made wrong findings of fact, the Court cannot overturn them. 25 Accordingly, I have not considered the additional material filed by the applicant, with the exception of the two statutory declarations, to which I refer below.

The bias ground 26 Section 476(1)(f) of the Migration Act provides that a decision of the Tribunal may be reviewed if it was induced or affected by fraud or actual bias. The applicant has raised no issue of fraud. The phrase "actual bias" is used in s 476(1)(f) to make it clear that, in the case of a judicially-reviewable decision under the Migration Act, an applicant has to establish more than is usually the case when an application is made to set aside a decision of a Court or a statutory tribunal on the ground of bias. The usual test is that, if a reasonable person might believe that the Court or the statutory tribunal concerned is not approaching the case impartially, then the decision may be set aside. In the case of a decision of the Tribunal, however, actual bias must be shown. This means that an applicant must show that the Tribunal approached the case with a completely closed mind, so that it could not have been persuaded in the applicant's favour by any means. In Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17 (2001) 178 ALR 421 at [72], Gleeson CJ and Gummow J described the test as follows:

"The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented." 27 There is nothing in the present case to indicate that the Tribunal approached the applicant's case in that way. The applicant was not able to point to anything demonstrating a closed mind. As I have said, the Tribunal found the two letters it rejected to have been contrived and not genuine for three reasons, which I have summarised above. They were reasons derived from evidence the Tribunal had before it. They do not give any indication that the Tribunal had predetermined a result adverse to the applicant, regardless of whatever the evidence and arguments might be. 28 The applicant has therefore not made out the ground specified in s 476(1)(f) of the Migration Act.

The "no evidence" ground 29 The ground specified in s 476(1)(g) of the Migration Act is limited to the two situations specified in s 476(4). The situation referred to in s 476(4)(a) is not relevant to this case. An application for a protection visa is not one required by law to be rejected only if a particular matter is established. 30 This means that the applicant must rely on s 476(4)(b). It is necessary for him to persuade the Court that the Tribunal based its decision on the existence of a particular fact and that fact did not exist. The particular fact that appears to have been identified by the applicant is the lack of genuineness of the two letters. 31 The applicant must fail on this ground for three reasons. First, there was evidence before the Tribunal on which it was open to the Tribunal to reach the conclusion that the letters were not genuine. I have referred above to the Tribunal's reasons for making its finding about the letters. It was open to the Tribunal to accept the applicant's adviser's account and to reject the applicant's account as to the late lodgement of the letters. It was open to the Tribunal to take the view it took on the implausibility of the applicant's claim about the apparently inconsistent conduct of the Sri Lankan police. It was open to the Tribunal to rely on the information from the Department of Foreign Affairs and Trade. 32 Second, even if I were to have regard to the two statutory declarations that are part of the material the applicant has put before the Court, there would not be evidence sufficient to defeat the finding that the letters were contrived and not genuine. The statutory declarations contain first-hand hearsay evidence that the writers of the letters "issued" the letters on the dates they bear and on the official letterheads. Nothing is said as to the truth of the contents of the letters, or as to the purpose of either writer. On the basis of the evidence in those statutory declarations, it cannot be said that the particular fact, the non-genuineness of the letters, does not exist. 33 The third problem for the applicant is that it cannot be said that the Tribunal based its decision on the particular fact, ie the fact of non-genuineness of the letters. As the Tribunal said in its reasons for decision, it based the decision on a number of findings, which I have summarised above. Even if it were wrong about the genuineness of the letters, it could not be said that such an error deprived the decision of any basis in fact. 34 The applicant has therefore failed to make out the ground specified in s 476(1)(g) of the Act.

The discretion ground 35 Although the amended application did not make specific reference to the ground specified in s 476(1)(d) of the Act, the applicant must be taken to have referred to that ground. Section 476(3) contains provisions which explain the meaning to be given to that ground. The provisions of s 476(3)(b) and (c) are not independent grounds in themselves. 36 Reliance on the ground in s 476(1)(d), as confined by s 476(3)(b) and (c), is impossible in a case such as this. Those provisions are relevant only to powers that involve the exercise of the discretion of a decision-maker. A decision to grant or refuse a protection visa is not a discretionary decision. Section 65 of the Migration Act provides that a visa must be granted if the Minister is satisfied of certain things, including that the criteria for the visa have been satisfied. If the Minister is not so satisfied, the Minister is bound to refuse to grant the visa. The grant or refusal of the visa therefore depends upon the satisfaction of the decision-maker, and not on any discretion. 37 The applicant has failed to make out the ground specified in s 476(1)(d) of the Migration Act.

Matters raised at the hearing 38 At the hearing of the application for judicial review, the applicant, who appeared in person with the assistance of an interpreter of the Sinhalese language, raised several matters not referred to in the amended application. Although no leave was sought to raise such matters, and the applicant gave no indication of intention to amend his application further, it is appropriate for me to deal briefly with these additional matters. 39 The applicant complained that he had brought to the hearing in the Tribunal some letters from his wife, written in Sinhalese. The Tribunal invited him to acquaint it with the contents of those letters, in summary form. The applicant began reading from the letters, with his interpreter translating what he read. After a short while, the Tribunal stopped the reading and indicated that it did not wish to hear any more of the letters. In the course of its reasons for decision, the Tribunal did make reference to letters from the applicant's wife. In the course of recounting his claims, the Tribunal said: "He added that several letters from his wife also indicate a continuing endeavour by the PA to harm him." 40 In the course of its reasons, the Tribunal said this with respect to this issue: "the Tribunal does not accept that members of the PA or others display any intent to the applicant's wife or friends to persecute the applicant now or the (sic) foreseeable future due to his UNP connections. It finds that the applicant's evidence in that regard has been contrived to bolster false claims to refugee status." 41 It cannot be said that the Tribunal failed to deal with the issue of the applicant's wife's letters. If it did display impatience at the process of reading their contents through the interpreter, the most that could be said is that the Tribunal denied the applicant natural justice. A denial of natural justice is specifically excluded as a ground of judicial review by s 476(2)(a) of the Migration Act. 42 The applicant complained that the hearing before the Tribunal did not last more than forty-five minutes. Apart from a possible connection with natural justice, based on a suggestion of an inadequate hearing, the time taken to deal with a matter is of no significance. Again, denial of natural justice is not a ground available in a proceeding such as this. 43 The applicant attempted to contend that the Tribunal made an error of law in two respects. Error of law is a ground for judicial review available under s 476(1)(e) of the Migration Act. In the first place, the applicant said that the Tribunal had based its decision entirely on the submissions of the migration agent who represented him at the Tribunal hearing. If that is what the Tribunal did, it can hardly be contended that it erred in law in doing it. Whether the migration agent was competent or not, the Tribunal was obliged to take his submissions into account. It was open to it to prefer the submissions to any other view put. The submission seems to be a complaint about the failure of the migration agent to support the applicant's evidence about the manner in which he dealt with the two letters. As I have said, that was a matter of fact for the Tribunal. The second suggestion was that the Tribunal erred in law in rejecting the two letters. I have already referred in detail to the manner in which the Tribunal dealt with the letters. There is no error of law apparent in the findings the Tribunal made on that subject. 44 Because the applicant does not have the benefit of legal representation, I have looked carefully at the reasons for decision of the Tribunal, in an endeavour to see if there is any ground on which the decision might be the subject of successful judicial review under s 476 of the Migration Act. I have been unable to perceive any such ground. What the applicant seeks to do is to persuade the Court that findings of fact favourable to him should have been made, or should now be made. As I have said, it is not open to the Court to do that. It may be that, if the Tribunal had warned the applicant that it proposed to make adverse findings about the genuineness of the two letters, the applicant might have brought forward at an earlier date the evidence he now attempts to bring to the Court, supporting the genuineness of those letters. At best, a complaint that the Tribunal failed to give such a warning would amount to a complaint of a denial of natural justice. Such a complaint is specifically excluded as a ground of judicial review by s 476(2)(a) of the Migration Act.

Conclusion 45 The applicant has therefore failed to establish any of the grounds raised in his amended application. 46 For these reasons, the application for judicial review must be dismissed. Having failed in his application, the applicant should be ordered to pay the costs of the Minister.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Counsel for the Applicant: The applicant appeared in person