Eschetu v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT This is an application for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal"), under Part 8 of the Migration Act 1958 (Cth)("the Act"). While there are unusual features to the decision, they are not of such character as would admit of curial relief on grounds specified in s 476 of the Act. Background Circumstances (1) The Applicant and his application Mr Appucutty Thevendram, the applicant, is a Sri Lankan citizen and was a practising lawyer in that country until his arrival in Australia on 7 September 1996 ostensibly to attend a conference. On 23 September 1996 he applied for a protection visa. A delegate of the Minister for Immigration and Multicultural Affairs, the respondent, determined on 16 January 1997 that Mr Thevendram was not entitled to the grant of such a visa. He applied to the Tribunal for review of that decision on 21 January 1997. The application was rejected, the Tribunal affirming the delegate's decision on 29 April 1997. The present application resulted from this refusal. As I now understand it, not withstanding the variety of grounds advanced in the original application, the case as prosecuted has reduced itself to two grounds. The first is that the Tribunal did not follow the procedures required to be observed in the making of its decision (the Act s 476(1)(a)) in that, in not deciding the case put by Mr Thevendram, it did not "act according to substantial justice and the merits of the case": the Act s 420(2)(b). Reliance in this was placed on the reasons in the majority judgments in Eschetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621. The second is that the Tribunal's decision involved an error of law (the Act, s 476(1)(e)) in that while correctly stating the law to be applied, it failed so to apply it. (2) The Factual Setting Mr Thevendram is a Tamil and until February 1991 he practised law in Jaffna. When the Liberation Tigers of Tamil Elam ("the LTTE") took control of the area in which he lived in 1985 that group set up "rural courts" in the villages of the Jaffna region. He accepted a position offered by the LTTE of chairman of his village court. He said he had no choice in the matter. The central government of Sri Lanka commenced a military offensive in the region resulting in the introduction of the Indian Peace Keeping Force ("the IPKF") to the region. Mr Thevendram was arrested by the IPKF and taken for interrogation because, he claimed, of his alleged involvement with the LTTE. In 1989 provincial elections were held in the North East province. Three militant groups working alongside the IPKF formed the provincial council. There was conflict between these groups and LTTE sympathisers. One of this group abducted a member of the rural court in Mr Thevendram's village. He went into hiding. His wife then was threatened that she and their children would be killed if he did not surrender. This he did not do and a threat was later repeated leading to the entire family including the applicant moving to Colombo. In January 1990 with the withdrawal of the IPKF the LTTE again took control of the North East province. Mr Thevendram and his family returned there. He was involved in establishing the North East District Rehabilitation Organisation and was nominated by the LTTE to the board of governors of that body. He again stated he had no choice in the matter. With the resumption of hostilities between the central government and the LTTE in 1990 Mr Thevendram again moved with his family to Colombo (in February 1991) and resumed his legal practice there. From February 1991 until he left for Australia in September 1996 he lived in Colombo taking frequent trips abroad. Shortly after returning from a trip to Canada, Mr Thevendram claimed that, on 2 August 1996, he was taken into custody by the police (the CID); was detained for 10 days; and was beaten and denied food for a considerable period. The applicant attributed his arrest to his having been identified as an LTTE supporter in the 1980's to the Sri Lanka army when it took control of the Jaffna Peninsula in late 1995 and early 1996. I should interpolate that the veracity of these claims was characterised by the Tribunal as raising "a critical question". Mr Thevendram was released, he alleges, as a result of a bribe of approximately A$2500 paid by his wife. After his release he ascertained that an associate from Jaffna had been arrested in Colombo and was killed. He considered it too dangerous to remain in Sri Lanka. After approaching the Canadian and United States embassies for a visa but without success he obtained a visa to attend a conference in Australia. He then left the country alone. He claims that his wife was subsequently contacted by the police to ascertain his whereabouts. (3) More Recent Events (i) On 21 October 1996 a Sri Lankan lawyer wrote to the Australian High Commissioner in that country making the following allegation against Mr Thevendram: "The above named Attorney-at-Law has defrauded his clients to the tune of Rs. 5 millien and decamped to Australia on 6-9-96. The above matter has been reported to the Frauds Investigations Bureau. We understand that he has obtained a Visitor Visa on the pretext of attending the 5th Law Asia Conference held in Darwin, Australia and he has the intention of staying back by putting forth a false claim for Political asylum to avoid prosecution in Sri Lanka. Under the above circumstances I kindly request you to inform the relevant authorities to reject his claim and to deport him to Sri Lanka at the earliest possible opportunity. I am enclosing herewith a copy of the letter addressed to the High Commission by him requesting for the Visa. Your prompt action in this regard will be very much appreciated." (ii) On 27 January the same lawyer swore an affidavit in which he withdrew the above allegation. It stated in part: "3. The facts mentioned in that letter arose out of a misunderstanding and misinformation about the circumstances which led to the arrest and subsequent release of Mr Appucutty Thevendram by the Wellawatte Police. 4. Mr Appucutty Thevendram was arrested by the Wellawatte Police on 2/8/1996 and released on 12/8/1996 for his involvement in Political activities and various false rumours were spread about him." (iii) A further affidavit from the same person was sworn of 9 April 1997 repeating the retraction and confirming the absence of professional misconduct on the applicant's part. It also stated that: "4. That Mr Appucutty Thevendram is a politically conscious and active gentleman and I have found that his life shall be in danger if he is returned on the basis of his ethnicity and political affiliations." The above, raising what has been referred to as the embezzlement allegation, was the subject both of questioning by the Tribunal and of submissions by the applicant's advisers. As to the latter it was submitted that: "this entire matter should be noted but disregarded by the Tribunal in making its decision except insofar as the Tribunal should find that Mr Thevendram is a person of good fame and character in his profession and a person of honesty." The Tribunal dealt with the matter in the following way and following on a finding that "the Applicant was not detained in the way claimed in the first place": "The Applicant's adviser submitted that in view of the numerous times the Applicant had left Sri Lanka in the past that it would only be serious circumstances that would cause him to take this step of applying for refugee status. On the other hand there was an initial allegation that the Applicant had left because he had embezzled money. This allegation has now been withdrawn. The Tribunal is prepared to ignore the allegation and makes no findings as to the motive the Applicant had in leaving Sri Lanka and applying for refugee status in Australia." (iv) On 17 April 1997 the following unsigned letter was received in the Melbourne office of the Tribunal: "Dandenong Victoria 3175 Chairperson R R T Melbourne 3000 Sir, This is an important information. Mr Thevendram Appucutty is not a refugee. He had been practising as a lawyer peacefully and actively in Colombo until his departure from Sri Lanka. he did not face any problem from the forces. If he was a wanted person his house and garden which was bought by him recently would have been seized by the government. His family is living there very peacefully. His money transactions with banks should have been stopped by the government." The Tribunal gave its decision on 29 April 1997. It made no reference to the 17 April letter in its reasons. It did not disclose the existence of the letter to the applicant before its decision. The Tribunal's Decision No objection, properly, was taken to the manner in which the Tribunal formulated the relevant law to be applied and, in particular, the burden of the "well-founded fear of being persecuted" formula. It referred to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. Importantly for present purposes it noted that while that fear must exist at the time when the decision is made whether an applicant is a refugee, the circumstances of an applicant's leaving his or her country remain relevant and ordinarily provide the "starting point in ascertaining the applicant's present status": Reasons, p 3. Given that Mr Thevendram had lived in Colombo from 1991 until his departure in 1996 the Tribunal was of the view that his chances of persecution were to be assessed in relation to his situation in Colombo. From this perspective it reasoned as follows: (1) "The Tribunal accepts that in the late 1980s the Applicant had the difficulties that he claimed in the Jaffna and that this caused him to live in Colombo. The Tribunal accepts that the Applicant was involved in the rural court in 1985, 86 and 87. The Tribunal is aware that the LTTE has established administration in that area and that it has from time to time forced people to become involved. The Tribunal accepts that the Applicant suffered difficulties as a result of this involvement both from the IPKF and the EPRLF in 1989 and 1990. However the Applicant has lived without any difficulties in Colombo from February 1991 until August 1996. The Tribunal has considered the Applicant's claim that he was detained in August 1996 for 10 days as a result of his involvement in the 1980s in Jaffna. In this case this is a critical question because in the Tribunal's view if the Applicant was so detained then it would appear he fled immediately and in the absence of a substantial change in Sri Lanka would succeed in his application. The Applicant states that it was only after the government forces captured the Jaffna area that the authorities became aware of his involvement. The Tribunal has considered this claim but finds that the suggestion that the Applicant was arrested in 1996 as a result of his involvement in 1985, 1986 and 1987 in a form of civil administration as far-fetched and implausible. The Applicant stated that there were no documents available from this period of time when he was involved in the rural court as these were all destroyed in the 1980s. The Applicant claims that it is other people from the Jaffna area who are pointing to him as being a supporter of the LTTE. However given that the Applicant finally left the Jaffna area in 1991 the Tribunal considers it implausible that he would be pointed to as an LTTE supporter by people from this region. The suggestion that the Applicant would have been of interest to the authorities as a result of activities in which he was involved in the 1980s is, in view of the passage of time, implausible. This is further reinforced by the Applicant's evidence that he suffered difficulties from the IPKF and EPRLF as a result of his involvement in the 'rural court'. In the Tribunal's view if the Applicant did suffer difficulties as a result of this involvement in 1989 and 1990 it is implausible that he would be able to live in Colombo from 1991 and face no difficulties until 1996." (2) "The Applicant stated in his application that his town in the Jaffna area fell to the government forces in December of 1995. In the interview he stated that his area was captured in June or July 1996. This is when the security forces obtained the information about the Applicant. In the hearing he agreed that it was in December 1995 when his area was captured but that people in his area were not questioned until the middle of 1996. According to the Applicant this explains why it was not until August of 1996 that the Applicant was detained by the security forces. The Tribunal considers that the Applicant has adjusted his story to explain the delay in his arrest and that it is implausible that it would take this period of time for the security forces to speak to the Applicant if they had any interest in him." (3) Despite the applicant's claim that his wife was contracted by the police after his departure asking his whereabouts, the Tribunal would not accept that the police would not have been able to ascertain that he was in Australia. (4) "The Applicant also claimed that a neighbour who had been involved in the 'rural court' was killed. The Applicant also stated that this explained why he was arrested in 1996. The Tribunal accepts that a rural trader from his area was killed. However the Tribunal does not accept that just because a rural trader was killed that the Applicant will be treated in the same way. The Applicant's history indicates he has been living in Colombo since 1991 and the Tribunal does not accept that there is any connection between this rural trader and the Applicant that would lead the Applicant to have any difficulties. In addition in September of 1996 the Applicant was able to leave Sri Lanka without any difficulties. This confirms the Tribunal's view that the Applicant was not of any interest to the police and was not detained in the way claimed. Further, even though bribery is common in Sri Lanka, the Tribunal does not accept that if the Applicant was of interest as a supporter of the LTTE that he would have been able to secure his release simply through the use of bribery. This leads the Tribunal to the conclusion that the Applicant was not detained in the way claimed in the first place." (5) The Tribunal dealt with the embezzlement allegation in the manner in which I have earlier quoted. I merely reiterate here that, having "ignored" the allegation, the Tribunal made no findings "as to the motive the Applicant had in leaving Sri Lanka and applying for refugee status in Australia". (6) The Tribunal found that a person of the Applicant's age and having a business and accommodation in Colombo did not fit the profile of someone who would be of interest to the authorities. He had "good reason" to be there. Further, his wife was still living in Colombo. (7) Given that the Tribunal has not found that the Applicant's arrest and detention to have been plausible and given that apart from this arrest and detention the Applicant does not claim that he has experienced any other difficulties in Colombo, the Tribunal is satisfied that there is no real chance that he will face persecution for a Convention reason should he return. Accordingly the Tribunal concluded that Mr Thevendram did not satisfy the criterion specified in s 36(2) of the Act for the grant of a protection visa. Submissions and Conclusions There has been some metamorphosis in the applicant's case from that contained in the application itself and the later particulars thereof, through the filed Contentions of Fact and Law and then the General Outline of Argument, to the case as it actually crystallised at the hearing. In saying this I do not suggest that a wholly new case has emerged. Rather claims have been abandoned, some because of the limiting effects of s 476(3) and (4) of the Act. The two central claims, though perhaps carrying somewhat different attributes and emphasis, have remained from the first. As put at the hearing they were as follows. (i) The Tribunal did not determined the case put to it. Rather than consider Mr Thevendram's "motive" for leaving Colombo, the embezzlement allegation and the letters diverted the Tribunal from the case put. In consequence in considering Mr Thevendram's application it has not acted according "to substantial justice and the merits of the case": s 420(2)(b) of the Act, hence it has failed to observe procedures required by the Act to be observed: s 476(1)(a) of the Act and see Eschetu's case, above; Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 198. (ii) The Tribunal's failure to address and make findings on Mr Thevendram's subjective fear of persecution evidences an error in the application of the law: s 476(1)(e) of the Act. Before considering these in turn it is necessary to reiterate both that it is not for this court under the guise of judicial review to engage merely in a reconsideration of the merits of the decision and that the court should not overzealously scrutinise reasons for an administrative decision so as to divine possible error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The s 476(1)(a) ("failure to observe required procedures") ground, though potentially raising an issue of no little controversy in the decisions of this court, does not in fact require me to add further to the judicial opinion upon the correctness or otherwise of the dicta of Davies and Burchett JJ in Eschetu's case, on the burden on s 420(2)(b) of the Act. I refrain from so doing. I am prepared to accept for present purposes that (i) there are procedural elements in the s 420(2)(b) requirement that the Tribunal must act in accordance with substantial justice and merits of the case; (ii) because the s 420(2)(b) requirement also includes "substantive elements" as well: "it is never enough simply to pose the question in the terms: Did the tribunal in its decision fail to act in accordance with substantial justice and the merits of the case?" Velmurugu v Minister for Immigration and Ethnic Affairs (1998) 48 ALD 193 at 196; but (iii) where a "relevant breach of procedure" is challenged, this is to be under s 476(1)(a): ibid; and (iv) a failure to address and make findings on material questions of fact raised, can constitute a failure to act procedurally according to substantial justice and the merits of the case as to constitute a ground of review under s 476(1)(a) of the Act: see eg Sundararaj v Minister for Immigration and Multicultural Affairs, unreported, FCA, 13 May 1998, Lindgren J; Li's case, above, at 198. The claim made by the applicant as I have noted is that the Tribunal was deflected by the embezzlement allegation and letters from a consideration of the case put. There are two related answers to this. The first is that the evidence does not support a finding of such deflection; the second, that the applicant's case was considered directly. The Tribunal in its Reasons expressly stated that it "ignored" the embezzlement allegation. By this I take it to mean the actual allegation considered at the hearing. As to the letter received at the Tribunal's Melbourne office after the hearing but before the decision, no reference is made to it or apparent reliance placed upon it in the Tribunal's reasons for decision. I have been asked nonetheless to infer that the Tribunal was aware of its contents and that both it and the earlier letter actually infected the decision. There is, in my view, an obvious unseemliness in the nondisclosure to an applicant of correspondence adverse to an applicant in a matter central to his application - assuming of course, that the Tribunal member concerned was actually aware of the correspondence. In this I entirely agree with the view of Davies J in Velmurugu's case at 196: "It may be accepted that, when a tribunal has significant information relating to a party before it which has not been disclosed, it should always make it perfectly clear that it has that information and provide the reasons why the material is not disclosed." For present purposes I am prepared to assume - there is no evidence that such was the case - that the Tribunal member in the instant case actually was aware of the contents of the 17 April letter before giving a decision in the matter. I equally am prepared to assume (without so deciding) - the matter was not the subject of significant submission by the parties - that the failure to disclose this letter's existence to Mr Thevendram prior to the decision could at common law have constituted a breach of natural justice: on disclosure see Nicula v Minister for Immigration and Multicultural Affairs, unreported, FCA, 22 October 1997, Beaumont J; and see generally Aronson and Dyer, Judicial Review of Administrative Action, 531ff. Further, I presently will accept, contrary to my own provisional view, that s 476(2)(a) does not preclude reliance upon s 476(1)(a) where the s 420(2)(b) challenge is, in essence, a breach of the rules of natural justice: Eschetu's case, above, at 625-625, 641-642. The question with which I am concerned is, then, whether the Tribunal so acted procedurally that in reviewing the delegate's decision it did not act according to substantial justice and the merits of the case: cf Jit v Minister for Immigration and Multicultural Affairs, unreported, FCA, 15 May 1998, Davies J. There is , in my view, no proper basis for not accepting that the Tribunal did as it said it did in ignoring the embezzlement allegation as such - an allegation of which the applicant was aware and to which he responded. On the assumptions I have made above, the question I have posed relates solely to the Tribunal's treatment of the 17 April letter. If the matter were simply one of natural justice then nondisclosure as such may have provided sufficient ground to challenge the decision notwithstanding the contents of the letter played no ostensible part in the decision: see eg Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342. But I am not concerned with a natural justice question as such. When one looks to what the Tribunal posed for itself as a critical question (indeed it became the decisive one) - ie was Mr Thevendram "detained in August 1996 for 10 days as a result of his involvement in the 1980's in Jaffna" - it cannot be said that the nondisclosure had the effect of causing the Tribunal in its address of that question not to act according to substantial justice and the merits of the case nor that there was in the circumstances a "lack of fairness in the way in which the Tribunal proceeded" notwithstanding that the undisclosed information was "personal": see Nicula's case, above, on fairness. The Tribunal, while accepting that Mr Thevendram suffered difficulties in 1989 and 1990 because of his involvement in the rural court, did not accept his account of the circumstances and causes of his departure from Sri Lanka. In so doing it relied upon inconsistencies in his own story; it did not accept the suggested implication of factual elements of his story (eg the bribery to secure his release); and it rejected as "implausible and far-fetched", the character of claims he made. In the above process the Tribunal, in the material upon which it relied, necessarily confronted the credibility of Mr Thevendram and unfavourably so. The effect of the letter apart, the adverse findings it made are not ones with which in the circumstances an appellate body would interfere: cf Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. As to the letter, while the Tribunal may have reached a conclusion largely consonant with that suggested by the letter, it rejected Mr Thevendram's story for reasons unrelated to claims made in the letter. I note that no suggestion has been made that the Tribunal in its Reasons did not satisfy the requirements of s 430 (1)(d). It was his story that was addressed and evaluated in light of the evidence referred to in the Reasons. And it was rejected. The nondisclosure did not deflect it from addressing that story as s 420(2)(b) required of it. Accordingly I would reject this ground of the application. I should, though, add the following comments. First, counsel for the applicant while relying upon the tainting effect of the 17 April letter, seemed - surprisingly - to treat it only as an aspect of the embezzlement allegation. If such was the case (I have assumed above in favour of the applicant that it was not), then its nondisclosure probably would have been unobjectionable in any event the embezzlement allegation being both known to, and responded to, by Mr Thevendram. Secondly, in the context of this particular matter it seems improbable in light of the fate of the embezzlement allegation that the Tribunal would have given any weight to the letter if in fact it was actually aware of its contents. It is not altogether surprising (though undesirable if its existence was known) that no reference was made to it in the Reasons. The s 476(1)(e) ("error of law") ground, to the extent that it actually goes beyond the s 476(1)(a), s 420(2)(b) ground, would seem to amount to this. The Tribunal failed to make a finding upon the question whether Mr Thevendram had a subjective fear of persecution and that a finding on that matter is a necessary precursor to any finding as to whether the applicant had a "well-founded" fear. The applicant's submission to this effect is misconceived in my view. It is the case that the definition of "refugee" in Article 1A(2) of the Convention relating to the Status of Refugees: "contains four key elements: (1) the applicant must be outside his or her country of nationality; (2) the applicant must fear 'persecution' (3) the applicant must fear such persecution 'for reasons of race, religion, nationality, membership of a particular social group or political opinion'; and (4) the applicant must have a 'well-founded' fear of persecution for one of the Convention reasons."