Iyer v Minister for Immigration & Multicultural Affairs

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

background 10 This is an appeal from a decision of a judge of the Court given on 8 November 2000. Her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 22 September 1999 which affirmed a decision of a delegate of the respondent of 30 May 1998 not to grant the appellant a protection visa under the Migration Act 1958 (Cth) ("the Act"). 11 The Tribunal accepted much of the appellant's evidence so the background to his claim can be stated shortly. He was born on Jaffna in Sri Lanka in 1966. He is a Tamil. He and his family lived in Colombo between 1970 and 1983, during which time the appellant was undertaking schooling. Due to the riots in Colombo in July 1983, the appellant's family returned to live in Jaffna where he completed his schooling. In the same year, his father left Sri Lanka to work in the Maldives, and the appellant left Sri Lanka for India, where he undertook engineering studies. In May 1985, his mother died, but he did not feel it was safe to return to Sri Lanka at that time. He did however visit Jaffna later in 1985. He returned, on a permanent basis, to Jaffna in September 1987. 12 It was then that the appellant suffered the first of three significant incidents of persecution. In October 1987 he was arrested and detained for about one month by the Indian Peace Keeping Force ("the IPKF"). He was suspected of having given assistance to the Liberation Tigers of Tamil Eelam ("the LTTE"). He was severely beaten in the period that he was detained. The Tribunal did not consider that that incident indicated that the appellant now faced any real chance of persecution by the IPKF on behalf of the Sri Lankan authorities in the future because the IPKF left Sri Lanka in early 1990 and no party in Sri Lanka, in government or opposition, advocates their re-introduction. 13 Following his release, the appellant fled to Colombo. In December 1987, he was arrested by the authorities, again on suspicion of being a supporter of the LTTE. He was held for about three weeks, during which time he was again mistreated. In mid- 1988, he was provided with a passport and a new identity card as his identity card had been stolen. He remained in Sri Lanka until November 1988, when he again left and spent time in India and in the Maldives. 14 The appellant returned to Colombo at the end of April 1992. In October 1992, for personal reasons, he returned to Jaffna where he stayed in a family owned home. 15 The next and third significant incident which the Tribunal accepted was his detention by the LTTE in March 1993. The LTTE was then in control of the Jaffna area. He was accused of anti-LTTE sympathies and activities and, with a number of others, he was taken away from Jaffna and remained in the custody of the LTTE until October 1993. He was mistreated during that period of detention. He was finally released after he had given to the LTTE all his valuables and had promised to give them his house. He surrendered his house to them in about February 1994 and was then permitted by the LTTE to leave Jaffna for Colombo in May 1995. He was there only a short time before he left for Singapore where he undertook further study, initially in Singapore and then in the Maldives. In September 1997, whilst in the Maldives, the appellant secured admission to an educational institution in Australia. To secure a visa to enable him to come to Australia he returned to Colombo in February 1998. Although he complained of the delay of some hours which he experienced while seeking that visa, the Tribunal did not regard that delay as of significance to his claim. He procured the visa, and arrived in Australia on 8 March 1998. 16 The appellant claimed, according to the Tribunal's reasons, that he feared persecution principally because of his perceived affiliation with the LTTE which, he feared, would lead to the Sri Lankan authorities imputing to him LTTE sympathies. 17 After referring to the findings about the applicant's experiences referred to above, the Tribunal concluded : "I do not accept that as a Tamil with relatives overseas the applicant would be a target for extortion. He has not claimed that he was so in the past, although his father had been working abroad since 1982. The 1997 Amnesty report cited above also states that 'Between 200,000 to 300,000 Sri Lankans are living in Europe and North America as recognized refugees, asylum-seekers in the course of having their claims assessed, rejected asylum-seekers, or those simply without any status or documentation. An estimated 100,000 are living as refugees in India. The large majority of these people belong to the Tamil community, one of the world's largest refugee diasporas.' Most of the Tamil population of Sri Lanka now has relatives living abroad. Without more, I cannot find that the applicant would be subject to extortion for reason of his race, or for any other Convention-related reason. While I accept that life in Jaffna would sometimes be difficult for the applicant, as he would, like the rest of the civilian population, be subject to frequent security checks and problems associated with the recovering infrastructure of the city, such as electricity shortages (vide Return to Jaffna, supra) these difficulties would not in his case amount to persecution in the Convention sense. He has not been associated with any of the political groups, such as PLOTE, which the LTTE is against and there is no reason why he would come to their, or the authorities' adverse attention. As stated above, he has not evinced any political aspirations in the past. For similar reasons I cannot accept that he cannot return to Colombo. He was arrested in that city only once, in 1987 at a time of mass arrests, and released without being charged. He received his education in Colombo between the years of 1972 and 1983. He has been able to live in Colombo and to come and go whenever he pleased for much of his life. I do not accept his adviser's contention that as a young man from Jaffna he faces increased risk of persecution on return to Colombo. I find that the applicant's claims, considered cumulatively, do not amount to his having a well-founded fear of persecution to return to Sri Lanka for reason of his race or imputed political opinion, or for any other Convention reason."

the grounds of review at first instance 18 In the application for judicial review, the appellant relied upon two grounds under s 476 of the Act, namely that the Tribunal failed to comply with procedures that were required to be observed in connection with the making of its decision by failing to comply with s 430 of the Act, so as to enliven s 476(1)(a), and secondly that the decision of the Tribunal involved an error of law under s 476(1)(e) because the Tribunal failed to set out its findings on material questions of fact or to refer to the evidence or other material upon which its findings of fact were based. There was, as can be seen, an obvious and substantial overlap between those two grounds. 19 The appellant was represented by counsel in the court below. Counsel identified that the appellant before the Tribunal claimed a well-founded fear of persecution by the Sri Lankan authorities both on the ground of his imputed political opinion, as a suspected LTTE supporter, and also on the ground of his race, as a Tamil. It was contended that the Tribunal had failed adequately to address the claim that, as a Tamil, the appellant had a well-founded fear of persecution from the Sri Lankan authorities, both in Jaffna and in Colombo on the ground of his race, or if it did so, that it failed to provide reasons for its decision setting out findings on material questions of fact, and referring to the evidence or other material on which those findings of fact were based. It was conceded by counsel on behalf of the applicant that the Tribunal adequately dealt with the issue of whether the appellant faced persecution on the ground of his imputed political opinion. 20 The learned Judge at first instance rejected the contention that the Tribunal had failed to address a head of persecution claimed by the appellant. Her Honour accepted that the Tribunal did not spell out clearly and precisely its finding that Tamils as such do not face a real chance of persecution on the ground of their race, but her Honour considered that the terms of the Tribunal's decision made it clear that it considered and rejected the appellant's claim to that effect. Her Honour noted that his claim to having a well-founded fear of persecution by virtue of being a Tamil, who came from Jaffna, with perceived links to the LTTE, and with relatives overseas, had been dealt with by the Tribunal. It had concluded that none of the combinations of those personal features gave rise to a well-founded fear of persecution in Sri Lanka. Her Honour concluded that the mere fact of him being a Tamil had also been dealt with by the Tribunal, as it was clear that the consideration of the more detailed claim encompassed consideration of that claim. 21 Her Honour also rejected the alternative argument. Her Honour regarded a failure to comply with s 430(1) potentially as a failure to observe procedures required to be observed in connection with the making of a decision so as to give rise to a ground of review under s 476(1)(a): Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 ("Singh"). The appellant's argument before her Honour was essentially that the Tribunal had failed to advert to items of information about the state of affairs in Sri Lanka which supported his claims. Singh did not require the Tribunal to explain why it does not act on or accept material which tends to contradict its findings. In her Honour's view, the independent country information provided by the appellant was not such that the Tribunal's rejection of that evidence was one of the reasons for its decision: see Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J. Her Honour concluded : "… By the time the Tribunal gave its decision in this case it had before it a great deal of country information, much of which had been provided by Mr Iyer's representatives. If, as the authorities indicate, s 430(1) does not oblige the Tribunal to explain why it failed to accept some of this information, it is difficult to see how it could require that the Tribunal should list the material containing the information it did not accept. As the majority in Singh emphasised, s 430 is designed to ensure that the Tribunal's decisions adequately disclose the process of reasoning leading to its ultimate conclusions. It would add little to that disclosure if the Tribunal were required to comprehensively list all material which contradicted any findings it made. …" 22 That ground of review must now fail in any event in light of the recent High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 ("Yusuf").

the grounds of review on appeal 23 On this appeal the appellant sought to raise a number of matters which had not previously been raised before the learned Judge at first instance. The grounds of appeal were, in substance : 1. The Tribunal erred in law by not investigating "the core, central and main basis upon which the [appellant] claimed protection … [namely] that the security forces or a group like PLOTE" (People's Liberation Organisation of Tamil Eelam) might attribute to him a pro-LTTE political opinion because he had dealings with the LTTE in 1993; 2. the Tribunal erred in law by failing to enter into a reasonable speculation whether the appellant might face persecution in Colombo as a member of a particular social group, namely young Tamil males from the north; 3. the Tribunal erred in law by failing to enter into a reasonable speculation as to why the appellant, as distinct from other Tamils, may be subject to persecution at the hands of the Sri Lankan authorities; 4. the Tribunal erred in engaging in "incorrect reasoning" and failing to provide sufficient reasons to comply with s 430 of the Act - the alleged "incorrect reasoning" was that the Tribunal wrongly considered that he was not at risk in the future because he had only been arrested by the authorities once in the past, in 1987 (putting aside his experience with the IPKF); and 5. the Tribunal did not apply correctly the test of whether the appellant had a well-founded fear of persecution in relation to living in Jaffna because the Tribunal failed to specify the forms of protection and the manner of protection which would be available to him from the authorities if he were threatened or mistreated by the LTTE. 24 It is accepted that each of those grounds to some degree seeks to raise new grounds of review not argued before the learned Judge at first instance, and indeed in respect of the first ground, it is a matter which was conceded by the appellant's counsel as not giving rise to a reviewable ground of error under s 476(1) of the Act. The fourth ground is in part the same as the ground of review argued before the learned Judge at first instance as it invokes s 476(1)(a) of the Act by reason of the Tribunal's alleged failure to comply with s 430(1) of the Act. As noted earlier, the High Court's decision in Yusuf, delivered on 31 May 2001 after this appeal was argued, forecloses that particular line of attack. 25 The appellant has given no cogent reasons why those matters were not raised before Mathews J, nor why the first of those grounds which was acknowledged by counsel on his behalf as not giving rise to a ground of review under s 476(1) of the Act should now be permitted to be argued. It has been often said that the substantial issues between the parties should be settled at the hearing, and that the hearing should not be treated as a preliminary skirmish with the appellate court being seen as the appropriate place and occasion to really confront the issues. That is a view which I share. In H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348, Branson and Katz JJ said at [6 - 7] : "6 An appeal to this Court from a decision of a judge of the Court is an appeal in the strict sense and not an appeal by way of rehearing (Dynasty Pty Ltd v Coombs (FC) (1995) 59 FCR 122 at 129; White v Minister for Immigration & Multicultural Affairs [2000] FCA 232). The appeal power is thus to be exercised for the correct of errors (Coal and Allied Operations Pty Ltd v The Full Bench of the Australian Industrial Relations Commission [2000] HCA 47 per Gleeson CJ, Gaudron and Hayne JJ at para 21). This does not mean that an issue can never be argued on appeal that was not argued at the hearing at first instance. In a case where, had the issue been raised before the primary judge evidence could have been given which might have prevented the point from succeeding, the issue will not be allowed to be raised on appeal (Coulton v Holcombe (1986) 162 CLR 1 per Gibbs CJ, Wilson, Brennan and Dawson JJ at 7 - 8). In other cases, it will be for the Full Court to determine whether it is expedient in the interests of justice that the issue should be argued and decided (O'Brien v Komesaroff (1982) 150 CLR 310 per Mason J, with whose judgment the other members of the court concurred, at 319; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 per Mason P, with whom Gleeson CJ and Priestly JA agreed, at 645-646; Jones v Minister for Immigration & Ethnic Affairs (1995) 63 FCR 32 (FC) particularly per RD Nicholson J at 47). 7 As Gibbs CJ, Wilson, Brennan and Dawson JJ observed in Coulton v Holcombe at 7 : 'It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.'" See also Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788; Sidhu v Holmes [2000] FCA 1653 and Wimalaratne v Minister for Immigration and Multicultural Affairs [2000] FCA 1737. 26 Counsel for the respondent very fairly acknowledged that the correct approach in this instance is to determine whether it expedient in the interests of justice to allow those fresh points now to be raised. At a practical level, the prejudice to the respondent if they are allowed to be raised would be the loss of the costs ordered to be paid on the unsuccessful application at first instance if, on appeal, that costs order were to be varied. That prejudice can be met by not disturbing the order for costs. The prejudice to the appellant, if any of his new grounds of appeal are correct, is the loss of the opportunity to have his application before the Tribunal re-heard and determined by a differently constituted Tribunal according to law. In this instance, it is difficult to assess the significance of that prejudice without considering the merits of the points the appellant now wants to raise. However, where the appellant wishes to raise on appeal a matter which was expressly conceded by experienced counsel at the hearing as not giving rise to reviewable error on the part of the Tribunal, and where no explanation for why that concession should now be permitted to be withdrawn, the Court should be very cautious before permitting the appellant to raise the point on appeal.

CONSIDERATION OF GROUNDS OF APPEAL 27 The appellant contends that the first issue was before the Tribunal because, in his initial statement in support of his application for a protection visa, he said : "… I cannot go back to Jaffna because if by some chance the authorities get to know that our property was given over to the Tigers I would be treated as a Tiger supporter and persecuted." Subsequently, in a long letter from the appellant's solicitors to the Tribunal dated 25 June 1999, they identified his claims to be a refugee in the following terms : "E. Nexus to Convention reasons The Convention nexus is established on two grounds : (a) race - as a Tamil, and (b) imputed political opinion, as a suspected supporter of the LTTE, The first and second are interlinked as set out in the statement. It is submitted that the country information objectively supports his fear of persecution." 28 The Tribunal recited in its reasons a long statutory declaration of the appellant received on 4 May 1999 in which he claimed that it was not safe for him to return to Jaffna because of his background, and that he feared returning to Colombo as he may be accused of helping the LTTE because of what happened to him. He said that he feared that he would be regarded as an LTTE supporter. It also recorded that, after the hearing, on 21 July 1999 the Tribunal had received a further submission from the appellant expressing a fear of Convention-based persecution in Colombo as a young man from Jaffna, because he might be seen as a suspected LTTE supporter and that he was also at risk of arrest for the purposes of extortion as a Tamil with family overseas. It described his principal claim as being "from an affiliation with the LTTE which he says would be presumed by the Sri Lankan authorities because he is a young Tamil man from Jaffna". 29 It is clear, therefore, that the first matter now sought to be raised was placed before the Tribunal. It was not necessary for the learned Judge at first instance to determine how that claim was dealt with by the Tribunal because, through counsel, the appellant eschewed any reliance on the point. It is now claimed that, at least in relation to Jaffna, the Tribunal did not address the claim. If it did err in that way, subject to considering the question of whether such an error is material to its decision, then it may have failed to exercise its jurisdiction: see per Gleeson CJ in Yusuf at [41 - 43]. Of course, the Tribunal's reasons are not to be perused with an eye keenly attuned to the perception of error: Wu Shan Liang v Minister for Immigration and Multicultural Affairs (1996) 185 CLR 259. However, it is not easy to discern how the Tribunal dealt with that claim, despite having identified it as the appellant's principal claim. 30 Immediately after reciting that claim, the Tribunal made its findings about the three incidents asserted by the appellant referred to above. In relation to the occasion when he was detained by the LTTE, it found that the chance of him now being targeted by the LTTE in Jaffna, which it no longer controls, is remote. It added that even if he feared persecution for a Convention reason, he would be able to request the protection of the authorities from potential LTTE mistreatment. 31 The Tribunal then dealt with the delay complained of by the appellant whilst undergoing checking in Colombo in 1988 when he had returned there and the process he had to undergo to get his visa. That was not in the context of addressing his claim of a fear of persecution for imputed political opinion, but that that delay itself was indicative of persecution. It rejected that claim. It regarded those matters as simply reflecting not unusual bureaucratic processes in Sri Lanka. 32 The remainder of the Tribunal's reasons before its overall conclusion are set out in full in [8] above. It rejected his claim that he could be subject to extortion for reason of his race or any Convention related reason. It then dealt with how he might be treated in Jaffna. All persons in Jaffna are obviously subject to some degree of inconvenience. Beyond that, the Tribunal found : "He has not been associated with any of the political groups, such as PLOTE, which the LTTE is against and there is no reason why he would come to them, or the authorities' adverse attention." It referred to the appellant not having evinced any political aspirations in the past. For "similar reasons", it was unable to accept that the appellant cannot return to Jaffna. It pointed out that, apart from his arrest in late 1987 just after he had left Colombo, the applicant had been able to live in Colombo and to come and go as he pleased. In fact, he lived in Colombo for about a year after that arrest, before leaving for India. He returned to Colombo in April 1992 and lived there without any relevant incident indicating a risk of persecution for some six months before he returned to Jaffna. After the LTTE permitted his departure from Jaffna in 1995, he passed through Colombo on his way to Singapore, and he did not return to Colombo until February 1998 when he secured his visa to come to Australia. The Tribunal then rejected the claim that, as a young man from Jaffna, the applicant faces the risk of persecution if he returns to Colombo. 33 The Tribunal, in my view, has addressed in the course of those reasons the appellant's claim that he may be persecuted by the Sri Lankan authorities because he may be imputed with pro-LTTE sympathies, having given the LTTE possessions in 1993 and his house in 1994. It found that there is no reason why he would come to the adverse attention of the Sri Lankan authorities by reason of that association. It has not expressly found that there is no real chance that he will be imputed with pro-LTTE sympathies by the authorities for that reason. It has not made any finding expressly that the appellant's previous dealings with the LTTE will or will not expose the appellant to the risk of the authorities attributing to him pro-LTTE sympathies. In Yusuf, McHugh, Gummow and Hayne JJ at [81] and [82], with whom Gleeson CJ agreed, said that the grounds of review available under s 476(1)(b)(c) or (e) may be made out if : "… the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, …" 34 In relation to this particular complaint, however, the Tribunal has identified the correct question. The complaint is really that its findings do not respond sufficient to that complaint. From those findings, it can however be readily inferred that the Tribunal did consider the appellant's particular circumstances in deciding whether he was at any real risk of persecution in Jaffna, or in Colombo, by reason of his past history. The absence of express findings on the matters referred to does not lead to the inference in this matter that those issues were not considered, or that the Tribunal regarded them as not material: cp the remarks of Gleeson CJ in Yusuf at [37], as the correct issue was identified, the claimed past incidents of persecution including one pertaining to the appellant's detention by the LTTE were the subject of explicit findings, and then the more general conclusions were expressed. 35 For those reasons, I do not consider that the Tribunal lacked jurisdiction (s 476(1)(b)) or made a decision which was not authorised by the Act (s 476(1)(c)) or erred in law (s 476(1)(e)) by failing to address that particular claim. 36 To the extent that the merits of the application touch upon whether the Court should allow the appellant to raise that ground of review despite not having argued it at first instance, consideration of the claim also does not warrant the course of permitting the appellant to do so. In view of the conclusion to which I have come that the point does not succeed, it is however unnecessary to finally express a view on that question. 37 The second ground of review concerns the way the Tribunal approached the appellant's claim that he may be persecuted as a member of a social group, namely young Tamil males from the north of Sri Lanka. I do not consider that this ground does involve issues not ventilated at first instance, although its focus at first instance may have been more on s476(1)(a) and s 430 of the Act. It is correct that the appellant put this contention at first instance as one concerning persecution by reason of his ethnicity rather than as a member of a social group. The gravamen of his concern was how he might be perceived by the Sir Lankan authorities as a young Tamil male from the north. The learned Judge at first instance referred to that combination of features (together with others) as "the essence" of the appellant's claim, and one which the Tribunal had rejected. The arguments at first instance do not appear to have identified the distinction now made between the appellant's fears of being imputed with pro-LTTE sympathies because he had previously dealt with the LTTE in 1993, albeit involuntarily (now the first ground of review on appeal), and because he is a young Tamil male from the north. However, in my view, this argument is a refinement of the contentions apparently put at first instance and it is not necessary formally to decide that it may be presented on this appeal. Both the claim that he might be persecuted by the authorities because he had previous dealings with the LTTE, and the claim that he might be persecuted by the authorities as a young Tamil male from the north, relate to the fear that the authorities may arrest and detain him and mistrust him as a person presenting a security threat or as a person capable of providing information about possible LTTE activities or supporters. In that sense, there is some overlap between them. 38 The appellant acknowledges that the Tribunal addressed the issue, but it is submitted that the Tribunal erred by not entering into "reasonable speculation" in deciding that the appellant will not face persecution in Colombo as a young Tamil male from the north. The Tribunal had regard to the appellant's past history, including that he was brought up in Colombo, and the periods since December 1987 that he has lived in Colombo, in reaching its conclusion. 39 The Tribunal, in its findings and reasons, did not refer to any independent country material concerning Sri Lanka, other than that describing the day to day difficulties of civilians in Jaffna. In its findings and reasons, it did not refer to any such information about the way young Tamil males from the north are treated. 40 The appellant's contention suggested that, because the Tribunal had extensive information provided by the appellant about the general state of affairs in Sri Lanka, and did not refer to it, the Tribunal had not undertaken the process of reasoning which it described. In other words, it was contended that the Tribunal did not really address the question whether the appellant had a real chance of persecution for a Convention reason because, had it done so, it would have referred to that material and explained why that material did not lead to a conclusion in favour of the appellant. That proposition is a variant on the proposition put to, and rejected by, the learned Judge at first instance that, by failing to refer to that material the Tribunal had failed to comply with s 430(1) of the Act, that contention could not now succeed in the light of Yusuf. 41 There was a great deal of information about the state of affairs in Sri Lanka relevant to the appellant's claims which was provided to the Tribunal by him or by his solicitors. It presents a picture complementary to that referred to by the Tribunal in the one piece of independent country information which it quoted at length in its reasons, namely an Amnesty International Report of 1997 entitled "Sri Lanka: a fractured island". The report concluded : "The situation for many Tamils who manage to reach Colombo has been precarious. They have remained at risk of human rights violations, including arbitrary arrest and detention by the security forces. Particularly targeted have been people originating from Jaffna, as they have often been suspected of having had contact with the LTTE." The Tribunal referred to that material under the heading "Independent Evidence" but not in that section of its reasons headed "Findings and Reasons". 42 The material provided by the appellant included sources which are commonly used by the Tribunal as providing independent country information about Sri Lanka, and other countries. It included the United States Department of State, Sri Lanka Country Report for 1998 and Report of The Refugee Council of the United Kingdom, February 1997 entitled "Sri Lankan Tamils, the Home Office and the forgotten civil war". The conclusion in that document was : "Despite the attempts by the government to promote human rights, the culture within the Sri Lankan security forces remains suspicious of Tamils-in particular young males, although all Tamils, whether male or female, young or old, are at risk. That Tamils should come under suspicion because of the actions of the LTTE is understandable. What is concerning is the continued use of detention without trial, and in contravention of the Emergency Regulations; of torture to extract confessions, often in a language not understood or spoken by the signatory; and of extrajudicial executions which are linked to the security forces. While there has been a systematic reduction in human rights violations, particularly against the Sinhalese population, there continues to be human rights violations in Colombo, particularly against Tamils, which the government appears to be unwilling or unable to prevent. It is for this reason that Colombo should not be assumed to be safe for Sri Lankan Tamils." The material also included Amnesty International 1998 and 1999 Annual Reports; US Department of State, 1996, 1997 and 1998 Reports; Human Rights Watch World Report 1999 (New York, December 1998); and "Sri Lanka. Torture in Custody" Amnesty International, June 1999. That lastmentioned material dealt expressly with the arbitrary arrest and mistreatment of Tamils in response to LTTE activities, both in the Jaffna area and in the Colombo area. It contained the following : "… However, people who are suspected of having links with the LTTE on the basis of information provided by one or more of the three agencies [National Intelligence Bureau NIB, Criminal Investigation Department CID, Crime Detection Bureau CDB] or on information provided by them during their initial interrogation risk being subjected to torture. Tamil people originally from the north or east of the country are especially at risk of being held for longer periods as are up country Tamils … (our emphasis)". That document referred to the fact that each year "thousands of Tamil people … have been arrested particularly in the north and east of the country and in the capital, Colombo, on suspicion of being members or sympathizers of the LTTE …" and that many of those arrested and detained are tortured in custody. 43 The independent country information before the Tribunal also included certain Country Information Reports of the Department of Foreign Affairs and Trade including a cable of 13 May 1997 "Humanitarian update - return to Jaffna" upon which the Tribunal based its findings about how persons in Jaffna are generally treated. That material does not address any particular circumstances of young Tamil males in Jaffna or in Colombo. 44 In Yusuf, Gleeson CJ at [37] pointed out that : "… if in its written statement setting out its decision, the Tribunal fails to refer to or fails to make findings with respect to a relevant matter, it is to be assumed, consistently with the clear directive in s 430 of the Act, that the Tribunal has not regarded that question as material. And depending on the matter in issue and the context in which it arises, that may or may not disclose reviewable error. For example, the failure to make a finding on a particular matter raised by the applicant may, in some cases, reveal an error of law for the purposes of s 476(1)(e) of the Act." 45 The Tribunal's reasons record that "there is no reason why [the appellant] would come to … the authorities' adverse attention" in Jaffna, as he has evinced no past political aspirations. Having referred to his personal history in Colombo, it rejected the claim that " … as a young man from Jaffna he faces increased risk of persecution on return to Colombo" (my emphasis). It is not clear what the Tribunal meant by "increased risk", having regard to the terms of Art 1A of the Convention. Counsel for the respondent submitted that it meant no greater risk that other Tamils in Colombo, and implicitly that it included a finding that Tamils in Colombo have no real risk of persecution by reason of their ethnicity. It may also reflect simply that finding that the appellant is a young male Tamil from Jaffna is at no greater risk than other persons (including Sinhalese) in Colombo. 46 It may also reflect the finding that, although young Tamil males from the north are vulnerable to persecution by the authorities in Colombo, the appellant's personal circumstances and history exclude him from exposure to that risk. 47 It is necessary to understand what the Tribunal sought to convey by its reasons. The independent country information available to the Tribunal referred to above does not present any conflicting picture. The one piece of that information quoted at length by the Tribunal in its recital of the evidence concluded by describing the position for many Tamils in Colombo, particularly those from Jaffna, as "precarious". The other material before the Tribunal, so far as the appeal book discloses, is to the same effect. If the Tribunal did not accept that picture, no doubt it would have referred to other information presenting a different picture, and have recorded its finding. Its conclusion that the appellant, as a young Tamil male from Jaffna, faces no increased risk of persecution on return to Colombo is at the end of a paragraph referring, in the preceding passages, to his personal history and experiences. 48 In my view, in those circumstances, it is proper to understand the Tribunal as referring to the appellant's position as a young Tamil man from Jaffna as being at no greater risk of persecution than that of other young Tamil males from Jaffna who came to Colombo. 49 I accordingly consider that it was a relevant matter for the Tribunal to make findings as to whether young Tamil males from Jaffna, as a social group, are or may be exposed to a risk of persecution by the authorities in Colombo. The Tribunal has made no finding on that issue. The independent country information pertaining to that issue has not been addressed by the Tribunal in the "Findings and Reasons" section of its decision. As that information appears to present a consistent picture on the way the authorities regard young Tamil males from the north, had the Tribunal addressed that issue it would be expected to have referred to that material to some extent. The independent country information which it quoted at length in its recital of the evidence concludes with information on that issue. The failure to address that matter, in this instance, demonstrates in my view an error of law, as the Tribunal was required to address whether the appellant had a well-founded fear of persecution for a Convention reason. It was a necessary step in that process, given its findings, to determine whether persons of the social group to which the Tribunal appears to have accepted that the appellant belongs (young Tamil males from the north) are or may be exposed to conduct which might amount to persecution by the authorities. 50 It would then be necessary to apply that finding to the appellant's particular circumstances, to determine whether he has a subjective fear of persecution for a Convention reason and whether his fear is well-founded. In my judgment the Tribunal's reasons reveal an error in its understanding of the applicable law by addressing the appellant's particular circumstances in a way which led to it failing to determine whether he has a well-founded fear of persecution by reason of him being a young Tamil male from the north of Sri Lanka. It has not addressed a critical matter which the law requires it to have addressed. Accordingly, I consider that the ground of review available under s 476(1)(e) of the Act has been made out. 51 The third ground of review is based upon the appellant's understanding of the decision of the High Court in Ibrahim v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 585 ("Ibrahim"). The contention is that the appellant, as a young Tamil male from Jaffna with previous (involuntary) association with the LTTE, is at a greater risk of persecution by the Sri Lankan authorities than other persons in Sri Lanka. That issue was the subject of specific findings by the Tribunal as discussed above. I do not consider that the contention is enhanced by reference to Ibrahim. That decision does not indicate that the Tribunal approached the appellant's claims wrongly. It considered his individual circumstances in the context of the circumstances obtaining in Sri Lanka. 52 The fourth ground of review is somewhat hard to discern. Although it is expressed in terms of a failure to comply with s 430(1) of the Act, so as to invoke the ground of review under s 476(1)(a), the substance of the submission appears to be that the Tribunal erred by adopting the reasoning that, because the applicant had suffered persecution from the Sri Lankan authorities only as long ago as 1987, there is no real chance that he will be persecuted by the authorities for a Convention reason in the future. It is clearly correct that a person may have a well-founded fear of persecution for a Convention reason even though that person may not have experienced persecution in the past: McHugh J in Ibrahim at [83], Perampalam v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 431 at [14]. However, it is not shown that the Tribunal made the error alleged. In my view, the Tribunal did not simply reason from the fact of detention in December 1987 to the conclusion that the appellant has no well-founded fear of persecution. It had regard to all his past experiences. It was entitled to do so. As explained in Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 575, it is generally appropriate in determining whether there is a risk of persecution to be informed by the experiences of that person. In my judgment, it did address the question required by Art 1A of the Convention whether the appellant has a well-founded fear of persecution for a Convention reason if he were to return to Sri Lanka. 53 The final ground of review is that the Tribunal, by failing to specify the forms of protection and the manner of protection available to the appellant in Jaffna from the authorities, if he were again to be targeted by the LTTE, did not determine whether the appellant had a well-founded fear of persecution if he were to return to Jaffna. The Tribunal identified the material upon which that finding was based. The finding was a step in its consideration of his claim to fear of persecution by the LTTE from which the Sri Lankan authorities would or could not protect him. The material referred to by the Tribunal was in this matter a sufficient basis for the Tribunal's finding. It is not shown to have erred in not making further inquiries as to whether that information was correct. There was inconsistent material on the question, but as the learned Judge at first instance pointed out, the mere fact that there is such material before the Tribunal to which it has not referred in its reasons does not mean that the Tribunal did not have regard to it. In addition, the quality of protection available to the appellant in Jaffna is a subsidiary conclusion of the Tribunal, assuming that the appellant is at some risk of mistreatment in Jaffna by the LTTE. The finding of the Tribunal that the applicant is not at risk of being mistreated by the LTTE should he return to Jaffna has not been challenged by the appellant. In that circumstance, this ground of review must fail. 54 The consideration of those final three grounds of appeal means that it is not necessary to formally rule on whether, as grounds of review not ventilated at first instance, the appellant should now be permitted to present them.

conclusion 55 For the above reasons, this appeal should be allowed. The appellant has succeeded in demonstrating that the Tribunal erred in its review of his claim to a protection visa. The ground upon which he has succeeded is one which has echoes of what was argued at first instance. However, it appears that the precise argument which has been accepted is not one which was developed before the learned Judge at first instance. In that circumstance, I consider it appropriate that the appellant should have the costs of this appeal, but that the order for costs made at first instance should not be disturbed. 56 Accordingly, I would order that the appeal be allowed and the decision of the Tribunal of 22 September 1999 should be set aside. The appellant's application for review of the decision of the delegate of the respondent should be remitted to the Tribunal for reconsideration according to law. The respondent should pay to the appellant costs of the appeal to the taxed. 57 I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

REASONS FOR JUDGMENT GYLES J: 58 I have had the advantage of reading the judgment of Mansfield J in draft, which relieves me of the necessity to explain the issues or the background to them.

Application to rely upon fresh grounds 59 In my opinion, the appellant should not be permitted to raise any of the grounds that are now proposed. The appellant made an application for a protection visa on 23 April 1998, having arrived in Australia on 8 March 1998 being the holder of an Australian student visa obtained by him in Colombo. He was born in 1966. The material in the appeal book shows that the appellant was assisted by a solicitor in connection with his application for a protection visa, and the same solicitor prepared and lodged the application for review in the Refugee Review Tribunal ("the RRT"), where the application was refused. Another firm of solicitors acted for the appellant during the course of the review by the RRT. Those solicitors made various submissions and provided a good deal of material to the RRT on the appellant's behalf. The RRT decision was made on 22 September 1999. The appeal book does not contain the original application to this Court for an order of review. It does contain an amended application for an order of review, filed by the same solicitors who had acted for the appellant during the RRT review and filed on 3 August 2000, which was the date of hearing before the primary judge. In other words, the amended application was filed on the day of the hearing. The appellant was represented by counsel instructed by the solicitors on the record. The primary decision was given on 8 November 2000, some two years and eight months after the appellant's arrival in Australia on a student visa and over two and a half years after making application for a protection visa. The appellant had been legally represented at all material points. 60 On 23 November 2000 the appellant filed a notice of appeal, which is barely legible and does not raise any proper ground of appeal. On 27 April 2001 a submission was filed by the appellant, the introduction to which was as follows: "This is an appeal arising from the judgment of her Honour Matthew's J made on the 8 November 2000 disallowing the above matter being remitted to the RRT. There are several new grounds in this appeal. In all fairness to her Honour, the applicant urges the Court to treat this appeal afresh." There followed an account of the factual background and what were described as "five grounds" which proceeded to analyse the decision of the RRT afresh, including reference to many authorities. At the date of this appeal there was not, and still is, no proper notice of appeal. On the hearing of the appeal, the appellant was permitted to be represented by a person not legally qualified or entitled to appear before the Court. 61 In my opinion, this chronology of events demonstrates that the appellant has no foundation which would permit this Court to entertain the arguments which have been addressed. The submissions for the appellant make it perfectly clear that he did not seek to overturn the primary judgment because of any error in it. He simply wishes to make another, and fresh, attack upon the RRT's decision. In deciding not to challenge the primary decision, the appellant was realistic. Her Honour's decision was careful, reasoned and, in my opinion, correct, even without the later decision of the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 ("Yusuf") removing one of the bases of the application for review. The appellant, as I have said, has been legally represented at every material point in the process, including up to the judgment below, and had every opportunity of raising whatever legitimate complaint he had. In my opinion, it is contrary to principle to permit this appeal to proceed on the basis that the judgment below is simply put to one side and ignored. A Full Court hears appeals from primary judges, it has no role in judicially reviewing decisions of the RRT de novo. There are, of course, situations in which points not argued below can be raised on appeal. This is not one of them. 62 In my opinion, it is wrong to analyse the question which arises here as requiring a balancing of prejudice. Departure from the proper role of appeal in the court system is not simply a discretionary procedural decision. Furthermore, in public law matters like this, it can always be said that no actual prejudice apart from costs is suffered by the respondent compared with the prejudice to the appellant. It can easily be overlooked that there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible. In the present case, there was no bona fide ground of appeal from the primary decision and the litigation should have ended at that point more than seven months ago. It is unnecessary, for present purposes, to go beyond the authorities cited by Mansfield J on the issue. Leave to argue the points sought to be raised should be refused. The appeal should be dismissed and the appellant ordered to pay the costs of the respondent. In coming to this view, I have had regard to the nature of the points sought to be argued, but not to the ultimate merits of those points.

Merits 63 Having regard to the view of Mansfield J, it is appropriate that I consider the ground upon which his Honour would allow the appeal. The starting point is to see precisely what was put by the appellant in relation to this ground. In his submissions, the appellant summarised this ground as follows: "Ground two The Tribunal erred in law by failing to enter into a reasonable speculation whether the applicant will face persecution in Colombo as a member of a particular social group, and that social group being a young Tamil male from the LTTE controlled area in the north and east of Sri Lanka. This is a separate ground of possible persecution in relation only to Colombo. The first ground of appeal is mainly in relation to Jaffna, but the applicant's attributes of that ground, ie race, age, association with the LTTE, coming from the north, can be imported into this ground too. The applicant specifically stated what his fear is in relation to Colombo: (AB:36: second last para). The authorities will not accept my bona fide as I will not be able to obtain the Necessary testimonials they require. Furthermore, I would always be looked upon with suspicion that I am in Colombo to engage in some subversive activity on behalf of the Tigers. It was incumbent on the Tribunal to make an assessment whether the applicant belonged to a particular social group that would lead to a Convention reason. Kirushanthan Paramananthan v MIMA [1998] 1693 FCA (Lindgren J). I find it sufficient to treat the relevant convention ground as "well-founded fear of being persecuted fore reasons of … membership of a particular social group …", the particular social group being young Tamil males from LTTE-controlled areas in the north and east of Sri Lanka." (emphasis added) 64 This amounts to an attempt to re-run the argument which was put to the primary judge and rejected under another label. The appellant's contentions below were summarised by her Honour as follows (Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1567 at [25] ("Iyer"): "At the hearing before me, Mr Poynder, who appeared for the applicant, relied primarily upon the second ground of review (the s 476(1)(e) ground). In that regard, he pointed out that Mr Iyer's claim before the Tribunal was that he had a well-founded fear of persecution from the Sri Lankan authorities on the ground of both his imputed political opinion, as a suspected LTTE supporter, and also on the ground of race, as a Tamil. Mr Poynder conceded that the Tribunal adequately dealt with the issue of whether Mr Iyer faced persecution on the ground of his imputed political opinion. However he submitted that the Tribunal had failed to adequately address Mr Iyer's claim that, as a Tamil, he had a well-founded fear of persecution from the Sri Lankan authorities (1) in Jaffna and (2) in Colombo, on the ground of his race. This, he submitted, constituted an error of law under s 476(1)(e)." 65 Her Honour disposed of the argument as follows (at [27]): "I cannot accede to Mr Poynder's submission that the Tribunal failed to address a possible head of persecution. Certainly the Tribunal did not spell out, clearly and precisely, its finding that Tamils as such did not have a real chance of persecution on the ground of their race. However the terms of the Tribunal's decision make it clear that it considered and rejected Mr Iyer's claim that, being a Tamil, he had a well-founded fear of persecution by the Sri Lankan authorities in either Colombo or Jaffna. The essence of Mr Iyer's claim was that he had a well-founded fear of persecution not only by virtue of being a Tamil, but particularly through being a Tamil (1) who came from Jaffna, (2) with relatives overseas and (3) with perceived links to the LTTE. The Tribunal concluded that none of these combinations gave rise to a well-founded fear of persecution in Sri Lanka. If being a Tamil, coupled with these so-called aggravating features, was insufficient to establish a well-founded fear of persecution then it must follow that the mere fact of being a Tamil could not do so." 66 The respondent's submissions in answer to the submissions of the appellant on this ground were as follows: "19. The Appellant's claims were not put on the basis that he was a member of a particular social group. He relied upon race and imputed political opinion [AB 68.7]. 20. In any event, as noted above, the approach of the Tribunal was to consider the position of the Appellant and his particular characteristics and it was not satisfied that he faced a well-founded fear of persecution. 21. The Tribunal has made no error in its approach." 67 In my view the submission on behalf of the respondent is correct. It is clear from the primary judgment that the position of the appellant in Colombo as being a Tamil from Jaffna with perceived links to the Liberation Tigers of Tamil Eelam ("the LTTE") had been considered and rejected by the RRT, with an attack upon that finding also being rejected by the primary judge. The appellant's claim before the RRT was that he had a well-founded fear of persecution in Colombo on the ground of imputed political opinion and race, the latter including his being a Tamil from Jaffna. The present ground simply takes the same point and dresses it up as membership of a particular social group. In my opinion, it is not permissible to find error in the way the RRT dealt with the matter by giving the same salient facts another label. Put another way, if the appellant had no well-founded fear of persecution whilst in Colombo because he is a Tamil who came from Jaffna, with perceived links to the LTTE, then there would be no well-founded fear of persecution because of belonging to a social group consisting of the same type of person. There is no suggestion of any joint vulnerability. Insofar as being "young" was concerned, it may be moot whether a person of thirty-two is regarded as young for this purpose, but in any event, the RRT was well aware of the age of the appellant. 68 This is an excellent example of the point made by McHugh, Gummow and Hayne JJ in their Honours' joint judgment in Yusuf (at [95]) (there dealing with the case of Israelian): "The failure to refer to one of the alternative bases on which an applicant for a protection visa based a claim would, in many cases, reveal a failure to take account of relevant considerations or an error of law such as would enable judicial review on the grounds stated in s 476(1)(b), (c) and (e). Cases can, however, readily be imagined where the factual findings relating to one asserted basis for protection necessarily and inevitably denied any other basis for protection." 69 The relevant ground, as it was put by the appellant, does not raise any issue as to the use or non-use of country information. I have set out above the whole of the material put in the appellant's written submissions on this point. In the absence of a notice of appeal, this is the only expression of the ground. In my opinion, it is not permissible to consider this ground as if it did encompass that issue. It was not raised in oral argument. 70 If it be relevant, I do not agree that there was any error of law within s 476(1)(e) of the Migration Act 1958 (Cth)("the Act") based upon the use by the RRT of country information. That is, again, an attempted re-run of a matter dealt with, in substance, by the primary judge when she said (Iyer at [34] to [35]): "Mr Poynder submits that the Tribunal made a more fundamental error in this case in that it failed to even refer to the existence of items of country information which were contrary to the findings that it reached. This, he says, went beyond merely failing to explain why the Tribunal rejected this material. It meant that there was nothing in the Tribunal's decision to alert a reader whether the Tribunal had considered this material at all. As such he submits that the Tribunal failed to comply with the requirements of s 430(1)(c) or (d). I have found this aspect of the matter a little worrying, but I do not think that Mr Poynder's submission can be upheld. By the time the Tribunal gave its decision in this case it had before it a great deal of country information, much of which had been provided by Mr Iyer's representatives. If, as the authorities indicate, s 430(1) does not oblige the Tribunal to explain why it failed to accept some of this information, it is difficult to see how it could require that the Tribunal should list the material containing the information it did not accept. As the majority in Singh emphasised, s 430 is designed to ensure that the Tribunal's decisions adequately disclose the process of reasoning leading to its ultimate conclusions. It would add little to that disclosure if the Tribunal were required to comprehensively list all material which contradicted any findings it made. Moreover if the Tribunal did seek to do so, but omitted to mention a particular item, it surely could not be suggested that this amounted to a failure to observe requisite procedures under s 476(1)(a). Yet this would appear to be the inevitable result if the applicant's submissions on this matter were upheld." 71 It is difficult for a judge on judicial review to become involved in the assessment of country information, all the more so on appeal. Country information varies enormously as to reliability and currency. Much of it comes from special interest groups. Most of it has a slant one way or another. Members of the RRT deal with such information on a daily basis, and accord weight or otherwise to it. Members of the RRT become expert on the background relating to individual countries. Judges do not have that knowledge or experience. This point is well illustrated in the judgment of Callinan J in Yusuf at [234] to [242]. 72 Even if there is country information which appears, in the view of a judge, to point to a conclusion which is contrary to the decision of the RRT, all that can be concluded is that the RRT did not agree with the country information. The country information is simply individual pieces of evidence and there is no obligation upon the RRT to accept any part of it, or all of it, or to say why it does not accept it. That part of the reasoning in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469, which was applied by the primary judge in this case to a submission which is indistinguishable from the point which is now under discussion, remains consistent with the decision of the High Court in Yusuf (see [88] to [90]). The manner in which the RRT dealt with country information in this case was a matter for it. In particular, the decision involved no error of law within the meaning of s 476(1)(e) of the Act on that basis. It will be recalled that an error must be 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. That is not established in the present case. 73 It will also be observed that the ground as framed by the appellant does not mention, let alone rely upon, the words in the RRT decision "as a young man from Jaffna he faces no increased risk of persecution on return to Colombo". There is no notice of appeal and no submission advanced to that effect. The only reference to the issue during oral argument was a question directed by one judge to counsel for the respondent as to his reading of those words. Furthermore, a reading of what the RRT said as referring only to an increased risk of that of the appellant over other young Tamil males from Jaffna who came to Colombo is contrary to the way in which the primary judge dealt with the matter in the passages to which I have referred in [8] of my judgment above. 74 If it were relevant, I would be of the view that the understanding of the primary judge is to be accepted. What the RRT said in its reasons for decision, in context, was (at [13]): "While I accept that life in Jaffna would sometimes be difficult for the applicant, as he would, like the rest of the civilian population, be subject to frequent security checks and problems associated with the recovering infrastructure of the city, such as electricity shortages (vide Return to Jaffna supra) these difficulties would not in his case amount to persecution in the Convention sense. He has not been associated with any of the political groups, such as PLOTE, which the LTTE is against and there is no reason why he would come to their, or the authorities' adverse attention. As stated above, he has not evinced any political aspirations in the past. For similar reasons I cannot accept that he cannot return to Colombo. He was arrested in that city only once, in 1987 at a time of mass arrests, and released without being charged. He received his education in Colombo between the years 1972 and 1983. He has been able to live in Colombo and to come and go whenever he pleased for much of his life. I do not accept his adviser's contention that as a young man from Jaffna he faces increased risk of persecution on return to Colombo." When this is understood in the light of the considerable discussion which has preceded it, I have no doubt that the RRT was saying that there would be no increased risk over and above other residents of Colombo sufficient to amount to a well-founded fear of persecution for a Convention reason. 75 Lastly, there has been no suggestion by or on behalf of the appellant that the position he had taken before the RRT and the primary judge as to the basis upon which persecution was claimed should be qualified in some way by what had been said in the initial application and supporting statement. The fundamental point is that, at all times, the appellant has contended that, as a Tamil from the north with connections with the LTTE, he has a well-founded fear of persecution if he were to return to Colombo by reason of those circumstances. It makes no difference in substance as to whether that is looked upon as a claim based upon political opinion, race or membership of a social group. As I have said, the position of such a person is no different whether viewed individually or collectively as a member of a social group. 76 My consideration of the merits of the ground in question confirms my view that no leave to rely upon fresh grounds should be granted. The appeal should be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Solicitor for the Respondent: Australian Government Solicitor