Fernando v Minister for Immigration & Multicultural Affairs

The Tribunal's decision 6 The application for protection visas having been refused by a delegate of the Minister on 8 August 1997, the applicant appealed to the Tribunal which on 22 January 1999 affirmed the decision. The Tribunal found much of the evidence given by the applicant "unconvincing and implausible". The Tribunal did not accept that the applicant witnessed the killing of Fernandopulle, nor that he was forced to go into hiding and ultimately flee Sri Lanka because Fernandopulle's murderers or other members of the UNP wished to harm him, nor that he was unable to obtain assistance or protection from the Sri Lankan authorities. 7 In reaching those ultimate conclusions the Tribunal made a number of findings of fact. It also made some observations bearing on the plausibility of the applicant's case. To summarise: (i) The date initially given by the applicant for the Fernandopulle murder was incorrect; in fact it occurred a week earlier. (ii) The applicant's version of the shooting was inconsistent with other versions. The Tribunal said "While eye witness accounts of any event may differ, none of the reports before the Tribunal suggested that Mr Fernandopulle was killed in a 'drive-by' shooting". (iii) The applicant's claim that he feared for his life and was in hiding for six months between the murder and his departure for Australia was at odds with his statement in the initial application that he continued to work as a Travel Agent. (iv) The applicant's failure to leave Sri Lanka until six months after the murder, despite the fact he already had a visa for Australia, indicated he did not fear for his life or the safety of his family during this time. (v) The applicant's statement that he delayed his departure because he was waiting for low season airfares was inconsistent with the fear he claimed to hold. (vi) Even if he was with Fernandopulle on the night of the murder, the applicant's claims that he was the intended victim, or that he was on a hit list because he knew Fernandopulle, or because he had witnessed the death, were implausible. (vii) "While there is no doubt that political violence between parties such as the PA and UNP sometimes occurs during election time in Sri Lanka, it is clear that violence generally erupts during demonstrations or rallies and does not take the form of targeted killings of particular people such as suggested by (the applicant)". (viii) The applicant never had any significant involvement in politics in Sri Lanka. His claim that he would have been targeted in a continuing fashion by members of the UNP for political reasons merely because he had some limited association with Fernandopulle was implausible.

Applicant's argument for review 8 Counsel for the applicant submitted that in terms of s 476(1)(g) and (4)(b) of the Migration Act 1968 (Cth) the Tribunal based its decision on the evidence of particular facts which did not exist. Those allegedly non-existent facts were:

(a) that the applicant's account of the shooting was at odds with other reports;

(b) that political violence only occurred during election time, at demonstrations or rallies and did not take the form of killings of the kind alleged by the applicant.

The facts alleged not to exist 9 (a) In putting the words "drive-by" in inverted commas, the Tribunal was not, as far as I can see, quoting from any material, but rather intending to indicate that the expression was a colloquial one. However the term has reached the recently published New Shorter Oxford Dictionary. It is there defined as "an action, esp. a shooting or murder, carried out from a passing vehicle". But the fact that in the applicant's version the vehicle stopped briefly and then sped off after the murder would not in my opinion make the Tribunal's characterisation of what happened as a "drive-by" shooting inappropriate or misleading. 10 In support of its observation already quoted ((ii) above) the Tribunal cited a Department of Foreign Affairs and Trade cable dated 24 September 1996. In referring to the shooting the cable said: "Although the facts around that event are unclear, it appears that the bodyguard of a UNP Provincial Councillor shot and killed the SLFP [Sri Lankan Freedom Party, a component of the PA] sympathiser, who was threatening the Councillor, during a scuffle." 11 Sparse though that description admittedly is, it does convey a picture of an argument between political antagonists with threats leading to a scuffle during which the shooting occurred. It was open to the Tribunal to regard that as something quite different from the applicant's account. 12 At most, the Tribunal was making an observation or comment based on two versions which it thought were in conflict. The observation is not to my mind the kind of "fact" the non-existence of which is given special importance by s 476(4)(b). 13 (b) I do not think the passage already quoted from the Tribunal's reasons ((vii) above) means that political violence in Sri Lanka only occurs during election times. In a DFAT cable dated 30 December 1996 it is said: "There have been cases reported in the local papers of UNP members, at the local government level, being involved in violent incidents with supporters of the Peoples Alliance (PA), particularly around election times … Politics in Sri Lanka, particularly at the local government level, can be very vigorous, and political violence in Sri Lanka crosses political boundaries. Over the years incidents of violence between supporters of different parties have been known to occur." 14 It is true that in an earlier part of its reasons the Tribunal said, in the course of reviewing the evidence: "I advised Mr Fernando that I was aware that some members of all political parties in Sri Lanka were involved in violence during election campaigns. However, it was not my understanding that this violence continued at other times or that members of political parties were targeted in the manner he had suggested. Mr Fernando said that in his case the violence had continued." 15 But the passage (quoted in(vii) above) from the Tribunal's decision makes it clear that the real point the Tribunal is making is not so much whether killings take place at election times or other times, but rather that they arise in the course of demonstrations or rallies and in a different form from the targeted killing alleged by the applicant. Again I do not see that there was a non-existent "fact" within the meaning of s 476(4)(b).

Was the decision "based on" the existence of such facts? 16 Section 476(1) provides for the grounds for review of the Immigration Review Tribunal or Refugee Review Tribunal. These include: "(g) that there was no evidence or other material to justify the making of the decision." Section 476(4) relevantly provides: "(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) … (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 17 These provisions are in identical terms to s 5(1)(h) and s 5(3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). 18 A literal reading of s 476(4)(b) might suggest that where a decision-maker treated two or more facts as material to the decision, then the decision was "based on" all of such facts, in the sense that each fact formed part of the total material which supported the decision. 19 The history of the corresponding provisions of the AD(JR) Act shows that they were intended to be more restrictive of judicial review than the common law. In Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1987) 13 FCR 511 at 519-520 Wilcox J traces this history. His Honour points out that a deliberate decision was made that it would not be sufficient to show the decision was based upon the assumption of a particular fact of which the decision-maker had no evidence, as in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 458 and Mahon v Air New Zealand Ltd [1984] AC 808 at 821. Rather, the applicant had to negative the fact. Wilcox J pointed out (at 520) that this "may constitute a heavy burden, especially where the facts are obscure". 20 But to return to the rather different question touched on above, when is a decision "based on" a particular fact? Does s 476(4)(b) assume that there may be facts relevant to a decision, but some may be more important than others, so that the decision is only "based on" facts of the former kind? If so, what are the criteria for ascertaining this superior degree of importance (or relevance)? 21 In discussing the corresponding provisions in the AD(JR) Act Mason CJ (with whom Brennan and Deane JJ agreed) referred to those provisions as requiring proof of the non-existence of a fact "critical to the making of the decision": Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358. However s 5(3)(h) of the AD(JR) Act was not in issue in Bond and the provision is not the subject of any further discussion by their Honours. What content can be given to this synonym "critical"? 22 As often happens in the law, courts have turned to metaphor as a means of giving shape to the concepts conveyed by the language of statute. Professor Jeremy Webber notes in his article "Constitutional Poetry; The Tension between Symbolic and Functional Aims in Constitutional Reform" (1999) 21 Sydney Law Review 260 at 271: "Metaphor and analogy are basic building blocks of our political or legal arguments. When we define our concepts, we often do so by refining our metaphorical arsenal." 23 The leading Full Court authority on s 5(3)(h) of the AD(JR) Act is Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212. In that case Black CJ, with whom Spender and Gummow JJ agreed, said (at 220): "Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. The decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion. If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact. Accordingly, I agree with the conclusion of Lee J in Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374 that there is no reason to read s 5(3)(b) in a way that would limit its application to a predominant reason for the decision under review." [Emphasis added] His Honour then discussed the evidence in the case and concluded (at 221): "The process of reasoning having properly and clearly been revealed by the decision-maker, it can be seen that the finding of a particular fact was critical to the decision because it fundamentally affected the course of reasoning leading to that decision. The finding shut off a path that could have led to a decision in Curragh's favour." [Emphasis added] 24 Likewise in the present case counsel for the applicant spoke of factual "links" and findings which led the decision-maker to "take one path". 25 Even if, contrary to the view I have reached, the discrepancy between the applicant's account of the shooting and other accounts and the non-occurrence of political violence in Sri Lanka outside election times were "facts" which did not exist, the Tribunal's decision was plainly in my view not "based" on the existence of those facts, or either of them. 26 In the circumstances of the present case the appropriate metaphor is not the chain or the fork in the road, but rather the net. A net does not necessary fail because one or more of its constituent strands fail. It all depends on how strong the remaining strands are and the size or mass or power of the object which the net is being used to restrain or support. There were a number of other strands, unchallengeable in a review of this nature, which supported the Tribunal's conclusion. The Tribunal, which heard the applicant in person and engaged in dialogue with him, simply did not accept him as a truthful person. Moreover there was unarguable circumstantial evidence, and in particular his staying in Sri Lanka and waiting for low season airfares, which weighed heavily against the acceptance of his case. 27 As a matter of rational decision making, the decision was well supported by facts quite separately from the allegedly non-existent facts.

Conclusion 28 The application will be dismissed with costs, including reserved costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Solicitor for the Respondent: Australian Government Solicitor