Eshetu v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT DAVIES J: This is an appeal from the judgment of a judge of the Court, Olney J. His Honour rejected an appeal from a decision of a Refugee Review Tribunal ("the Tribunal") in which the Tribunal refused to grant a Domestic Protection (Temporary) Entry Permit. The grant of the permit depended upon satisfaction by Mr & Mrs Velmurugu of the criteria set out in the of the definition of "refugee" in the Refugee Convention. In Eshetu v Minister for Immigration & Multicultural Affairs (1997) 145 ALR 621,I discussed at length the inter-relationship between the operation of s.420 and s.476 of the Migration Act 1958 (Cth) ("the Act"). I need not repeat what was theresaid. The sections read, inter alia:- "420. (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case." "476. (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: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; ... (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; ..." In the present case, the two distinct grounds in s.476, ground (a) which relates to procedures and ground(e) which relates to errors in the interpretation of the relevant law or in its application, became, in the contentions put on behalf of Mr & Mrs Velmurugu, confused with the phrase "substantial justice and the merits of the case" in s.420(2)(b) of the Act. The terms of s.420(2)(b) do not themselves appear in s.476. A ground that the Tribunal "did not act in accordance with the substantial justice and merits of the case" is not a permissible ground of review. The requirement that the Refugee Review Tribunal must act according to substantial justice and the merits of the case is a prescription which includes procedural elements. A relevant breach of procedure may be challenged under s.476(1)(a). However, s.420(2)(b) is not limited to matters of procedure. It lays down a standard according to which the Refugee Review Tribunal should decide a case. The substantive elements of s.420(2)(b) therefore form part of the legislative framework, "the applicable law", which may found a challenge under s.476(1)(e) if there has been an error involving an incorrect interpretation of it, or an incorrect application of it to the facts as found. The applicants, who are husband and wife, were citizens of Sri Lanka. In the course of the proceedings in which refugee status was sought, letters were written to the Department of Immigration and Ethnic Affairs. Some of the letters were anonymous. A letter was written to the Tribunal which was signed by a person who provided a name and address. Prior to the hearing of the proceedings by the Tribunal, Mr & Mrs Velmurugu sought access under the Freedom of Information Act 1982 (Cth) to the file of the Department of Immigration & Ethnic Affairs. The file was disclosed save 20 folios which consisted of the anonymous correspondence. Presumably, objection to production was taken on the ground that the documents were exempt documents under s.37(1)(b) or s.45(1). At least one other document was provided with parts of the document blanked out, but we are not concerned with that. Mr & Mrs Velmurugu did not seek review by the Administrative Appeals Tribunal of the claims for exemption. Although the 20 folios were not disclosed, some of the anonymous material including photographs was disclosed. Moreover, the substance of important allegations was put to Mr & Mrs Velmurugu and they were given an opportunity to answer the allegations, some of which turned out to be correct. On file are a letter from Mr Velmurugu to the Department of Immigration & Ethnic Affairs and a letter from the Legal Aid Commission of New South Wales to the Refugee Review Tribunal, both of which dealt with matters which had been raised in the confidential communications. At the hearing before the Tribunal, it was put on behalf of Mr & Mrs Velmurugu that there had been serious discord between them on the one side and the parents of their son's wife on the other, perhaps arising out of discord between the son and his wife. The son had been forced by his wife to leave his home in Sydney and a restraining order had been made against him. Evidence was given that the father of the daughter-in-law had formerly been an eminent officer in the Sri Lankan Army and that some of his former subordinates were now senior officers in that army. It was alleged that the writing of the letters was illustrative of harassment by the in-laws and that, if Mr & Mrs Velmurugu were to return to Sri Lanka, the father-in-law would be likely to make false allegations to his friends in the army, thus placing Mr Velmurugu's life in danger. In its reasons for decision, the Tribunal referred to the contention that the father-in-law mightuse his contacts within the Sri Lankan Army to harm Mr & Mrs Velmurugu and that any person who harmed Mr & Mrs Velmurugu in Sri Lanka would claim that their political opinions justified the infliction of harm on them. The Tribunal rejected this claim on the footing that there was no real chance that Mr & Mrs Velmurugu would be harmed as feared. The Tribunalsaid:- "The evidence of the Applicants' son that his father-in-law might use his contacts within the Sri Lankan Army to harm the male Applicant has caused me some concern. However, I have concluded there is no real chance that the threats deposed to by the Applicants' son would be carried out if the Applicants were to return to Sri Lanka. In arriving at this conclusion, I have taken account of the fact that the Applicants' third son and his family have been living and working in Sri Lanka continuously. If the threats had been intended to be taken seriously, the father-in-law of the Applicants' son could have harmed the Applicants through their son who remained in Sri Lanka at all relevant times. There is no evidence to show that this son or his family have been harmed in any way by military contacts of the father-in-law of the Applicants' son. Moreover, the threats were made in the heat of argument between the Applicants' son and his father-in-law. The evidence concerning the relationship between these two men shows that there was considerable animosity between them and leads to a conclusion that quite violent words might pass between them without either man actually intending to give effect to his words. I am satisfied, therefore, that the evidence the Applicants' son's father-in-law threatened to fix the male Applicant is not indicative of a real chance of persecution if the Applicants return to Sri Lanka." The application to the Court which sought orders of review with respect to the decision of the Tribunal specified the following grounds:- "1. The decision is unreasonable. 2. The Second Respondent failed to determine the Applicants' applications in accordance with substantial justice and the merits of the case." It will be noted that neither of these grounds was a ground specified in s.476 of the Act. On the hearing before the trial Judge, counsel for the applicant also sought production on subpoena of the letters and other information to which I have referred. Production was opposed on the ground of public interest immunity and on the ground of relevance. The trial Judge refused to order the production of the documents, holding that they were irrelevant to theissues raised before the Court. The trial Judge dismissed the proceedings before him on the ground that the applicants had not identified any procedure required by the Act or the regulations that had not been observed and that the grounds which were relied upon were not grounds available under s.476of the Act. It had been put to the trial Judge that the Tribunal had failed to make a specific finding as to the authorship of the anonymous letters. His Honour recorded the complaint put on behalf of Mr & Mrs Velmurugu as follows:- "The complaint is made that the Tribunal, having had access to the material in question, made no finding in relation to its source." His Honour held that the failure to express the finding was not only not manifestly unreasonable but was entirely appropriate. The notice of appeal from his Honour's judgment raised the following grounds: "1. His Honour erred when he held that failure to comply with s.420 of the Migration Act 1958 did not afford a basis for relief under s.476(1) of the Migration Act 1958. 2. His Honour erred when he held that the Tribunal was not obliged to make a finding in relation to authorship of the so called anonymous letters and erred when he held that such a finding could not have affected the appellants' cases. 3. His Honour erred in refusing to order production of the material sought on subpoena." One of the difficulties with these grounds is that, once again, the appellants failed to identify, in terms of s.476(1), precisely what their complaint was. There are two principal grounds of relief available to found relevant submissions. The appellants could have relied on either or both. But they necessarily involved different issues and they should be looked at separately. Because s.420(2)(b) imposes a requirement which incorporates both procedural and substantive elements, 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? The questions must always be posed in the terms prescribed by s.476(1). As was said in Eshetu, 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. The procedure adopted by the Tribunal must be directed to ensuring that a decision on the case can be arrived at in accordance with substantial justice and the merits of the matter. If the Tribunal does not act in such a way as to permit that to be done, it will breach a procedure which the Act prescribes. Section 420(1) specifies in addition that the procedures adopted should be "fair, just, economical, informal and quick." At times during the submissions of counsel for Mr & Mrs Velmurugu in this appeal, it appeared that the submission was being put that the Tribunal failed to provide procedures which were fair and just (s.420(1)) and failed to provide procedures which enabled it to arrive at the substantial justice and merits of the case (s.420(2)(b)). Counsel referred to the fact that the Tribunal had had in its possession the 20 folios in respect of which an exemption had been claimed and also the letter which the Tribunal recorded as having been written to it. Mr & Mrs Velmurugu did not see these documents. The submission was that the Tribunal had information which was relevant to the case and on which Mr & Mrs Velmurugu had not been given the opportunity to comment. It may be accepted that, when a Refugee Review 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. Preferably, when there is confidential or privileged material, the material should be dealt with in accordance with the provisions of ss.438 and 440 of the Act. However, the submission I have set out above was not a submission which was put to the trial Judge. It was not said to the trial Judge that the Tribunal had failed to comply with the procedures stipulated in s.420 because it had failed to disclose the letters to Mr & Mrs Velmurugu. No doubt the matter was not put in that way because, at the time of the hearing before the Tribunal, Mr & Mrs Velmurugu were aware that the Tribunal had the anonymous letters which they had not seen. Mr & Mrs Velmurugu were no doubt satisfied that the substance of any allegations contained in the letters had already been put to them and that they had been afforded an opportunity to meet those allegations, insofar as they were significant. The complaint arose later when an examination of the Tribunal's reasons for decision disclosed that the Tribunal had not set out a specific finding as to the author or authors of the letters. The case before the trial Judge centred not upon an allegation of breach of fair procedure but upon the failure of the Tribunal to express a finding about the authorship of the letters. The trial Judge noted that:- "The substance of the applicants' case is that it was unreasonable for the Tribunal not to make any finding as to the authorship of the anonymous letters. In the course of argument in relation to the preliminary question arising from the subpoena, in answer to a question from the bench as to what the applicants say should happen in relation to the subpoenaed documents, counsel said: `I say that they should be produced to the Court; the Court ought to grant access to the applicant and the applicant is then before your Honour for the first time in possession of all the evidence which was before the decision-maker and I am then in a position better to put my case that the Tribunal in the circumstances of the case was obliged to make findings in relation to that series of correspondence. In the context of a refugee application the Tribunal was obliged to find that there was at the very least a significant possibility, perhaps even a probability, that those letters emanated from the former wife or former father-in-law and that therefore it was completely irrational of the Tribunal to reason the way it did in relation to the dismissal of the claim about the risk of reprisals by the army at the behest of the former father-in-law.'" (emphasis added) Had a breach of procedure been the subject of complaint, it would have been essential to tender to the trial Judge a transcript of the proceedings before the Tribunal. That transcript was not inevidence. His Honour could therefore not have made any finding as to what was said during the hearing with respect to the confidential letters. This confirms that the complaint as put to the trial Judge concentrated upon the lack of an express finding as to the authorship of the letters. I am not satisfied that there was any breach by the Tribunal of the procedures which the Act required it to follow. There is no indication that, apart from the question of authorship, there was material in the letters which the Tribunal ought to have disclosed to Mr & Mrs Velmurugu but did not disclose. The Tribunal itself in its reasons referred to the letters and set out what it regarded as the substance of the allegations therein and the response thereto of Mr & Mrs Velmurugu. On the issues of substance rather than procedure, the principal point made in the submission put on behalf of Mr & Mrs Velmurugu was that, by failing to make a finding as to who had written the letters, the Tribunal had failed to deal with the matter in accordance with substantial justice and the merits of the case. In this respect, the relevant question is, of course, that which arises under s.476(1)(e), namely whether the Tribunal erred in its interpretation of the applicable law which includes the substantive elements of s.420(2)(b). Nothing that has been said satisfies me that any such error occurred. I cannot draw from the Tribunal's reasons any conclusion that the Tribunal erred in its understanding of the applicable law, including s.420(2)(b). Having regard to the clear statements in the reasons for decision of the allegations which were made by Mr & Mrs Velmurugu with respect to the letters and documents and the conduct of the in-laws, it would be wrong to draw the conclusion that, at some stage in its consideration, the Tribunal simply ignored this matter or misapprehended its task. I draw from the Tribunal's reasons the inference that the Tribunal considered the issues which it set out, including the allegations made in respect of the conduct of the in-laws and the potential for harm from members of the Sri Lankan Army should the applicants be returned to Sri Lanka. That was a matter which was very much to the forefront of the Tribunal's reasons. I draw the conclusion that the Tribunal did not discuss the authorship of the letters and documents because it considered that no useful purpose would be served by its doing so. Counsel for Mr & Mrs Velmurugu submitted that the Tribunal "failed to determine the central factual issue before it." However, that was not so. The Tribunal examined the situation in Sri Lanka and the reasons why Mr & Mrs Velmurugu left the country. The Tribunal was satisfied that Mr Velmurugu had been an active supporter of the Tamil United Liberation Front ("TULF"), that he had been harassed by the Tamil Tigers, the Liberation Tigers of Tamil Eelam ("LTTE"), in 1987 and that his home in Jaffna had been taken over by the LTTE in 1990. The Tribunal considered, however, that Mrs Velmurugu could return to any part of Sri Lanka without risk of persecution from the LTTE and that Mr Velmurugu would be safe in the southern part of the country. The Tribunal found that Mr Velmurugu had been given protection in Colombo by the authorities after he had left Jaffna and that the third son had been employed by the Sri Lankan Government during the whole time his parents had been in Australia. Moreover, property in Colombo had been restored to Mr & Mrs Velmurugu in 1993, in accordance with Sri Lankan law. The Tribunal considered that, even taking into account the allegations made in respect of thein-laws, Mr & Mrs Velmurugu would not be at risk of persecution in Colombo and that they could reasonably be expected to relocate there from Jaffna. The Tribunal therefore dealt with the substantial issues which it was required to consider. I cannot draw the conclusion that the Tribunal failed to consider the relevance of the authorship of the letters merely because no finding as to authorship was expressed. As to ground 3, the rejection of the subpoena, the trial Judge commented:- "With respect, I have some difficulty in following the connection between the need for access to the documents and the failure of the Tribunal to make the finding of fact referred to. The existence of the anonymous letters was well known to the applicants. They were given the opportunity to answer all of the allegations made therein. Some of the allegations proved to be correct. The applicants made no request for access to the documents at the time of the hearing nor indeed were any steps taken under the Freedom of Information Act to test the claim of public interest immunity at the time they were withheld. Neither the contents of the documents nor the use made of them by the Tribunal is relied upon as a ground of appeal. It is clear from the material that was put before the Tribunal that the argument which the applicants now seek to advance in relation to the authors of the documents in question was put to the Tribunal on the basis that the authors were in fact those identified by the applicants' son and that the Tribunal dealt with that material on the basis asserted. The use which the applicants seek to make of the 20 documents is in my opinion irrelevant to the issues raised on this application. The applicants do not need to have access to the documents to argue the point that the Tribunal failed to make a relevant finding of fact. What in effect the applicants seek to do is to have this Court make a finding of fact as to the authors of the documents and in the event that it is found that they originated from the people suspected by the applicants' son, to determine that the Tribunal erred in law in not making a finding as to their authors." (emphasis added) Production was sought simply to support the claim that the documents emanated from the son's in-laws. Access sought on behalf of Mr & Mrs Velmurugu was opposed. All of this was a matter of practice and procedurefor the trial Judge to determine. I am not satisfied that his Honour'sdiscretion miscarried. I agree with the trial Judge that the Tribunal made it clear in its reasons for decision what the issues were, that the Tribunal dealt with those issues, and that no inference should be drawn that the Tribunal erred in its interpretation of the applicable law. I would dismiss the appeal with costs. I certify that this and the preceding 9 pages are a true copy of the reasons for judgment of the Honourable Justice Davies. Associate: Date: 5 November 1997