M18/2002 v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2003-11-12|Before: Sundberg J

BACKGROUND 1 The applicants are a mother and two daughters. They are all Sri Lankan nationals from the minority Burgher ethnic group. They entered Australia on 20 May 2000. On 29 June they lodged an application for a protection (class XA) visa. Only the mother (the applicant) made specific claims under the Refugees Convention. The daughters were included in the application as members of her family unit. A delegate of the first respondent (the respondent) refused the application. The applicant applied for review of that decision by the Refugee Review Tribunal. The Tribunal affirmed the delegate's decision. The applicant applied to the High Court for an order nisi in respect of the Tribunal's decision. The matter was remitted to this Court. The only ground relied on in the application is that the Tribunal "did not make a bona fide attempt to exercise its power".

THE APPLICANT'S CLAIMS 2 The applicant claimed she had a strong association in Sri Lanka with the United National Party (UNP). She did not have a formal position, but was a keen supporter and attended meetings and rallies. She said that in 1994, the year of a national election, she was subjected to threats in the street and by telephone from supporters of the opposition Peoples Alliance Party (PA). Stones were thrown at her house and rubbish was placed in front of it. She said the threats had continued until she left Sri Lanka to come to Australia in May 2000, even though she had scaled back her political activities. She said she complained to the police about these events, but they did nothing. She could not recall the last time she complained. In November 1994 the applicant obtained a visa, valid for one year, to come to Australia. However, despite her problems, she did not leave Sri Lanka. 3 The applicant claimed that following communal violence in 1983 she took in a number of Tamil people as boarders. In 1999, because of her close association with some Tamil friends, she was asked to take in two Tamil boys as boarders. She became good friends with the boys and was always aware of the friends they brought home. They stayed with her for between three and six months. She said her Sinhalese neighbours accused her of sympathising with the Tamil cause and thus with the LTTE. She claimed that the police asked her why she was sheltering Tamil people and suggested she was a Tamil sympathiser. She told the Tribunal she could not remember the Tamil boys' names. 4 The applicant also claimed that when the police came to her house on a routine search and rounding up operation in mid‑1999, she gave them information about the friends of her two boarders who regularly visited them. She said that a few weeks later one of the friends was arrested by the security forces. She later said the arrest was about a month later. The applicant said that shortly after the friend's arrest she received telephone threats that she would be killed. She also received a threatening letter. She could not remember when this was. She believed the threats came from the LTTE as she had no other enemies. She did not go to the police about the threats which she ignored. 5 The applicant said she obtained a passport in November 1999 with the intention of leaving Sri Lanka as soon as possible, but because of financial problems she was unable to leave until May 2000. She claimed that if she were to return to Sri Lanka she would be harmed by government thugs because she was a supporter of the UNP. She was also afraid of being harmed by the LTTE.

TRIBUNAL'S DECISION 6 The Tribunal accepted that the applicant was an ordinary, active member of the UNP and that she campaigned for the party in the 1994 elections. It did not accept that she was harassed, as she claimed, over a period of five years because of her support for the UNP, or that her house was damaged because she was an active member of the UNP. The Tribunal found that the applicant's claims were inconsistent with relevant country information about Sri Lanka at the time. It also gave weight to the applicant's failure to take advantage of the Australian visa issued to her in November 1994. It said that if she had been harassed and threatened as she claimed, she would surely have taken the opportunity to leave. 7 The Tribunal accepted that the applicant may have helped Tamils during the 1983 communal riots. However, it found that given the lapse of time, she did not have a well‑founded fear for that reason. The Tribunal did not accept the applicant's claim that she took in two Tamil boys, that she gave the police information about their friends, and that she had been threatened by the LTTE as a result. It found that she had fabricated these matters. It gave its reasons: the applicant could not remember the boys' names, she had not reported the threats to the police, and could not remember when she gave the information to the police. Because the Tribunal did not accept her claim about the Tamil boys, it rejected the claim that she had been abused by the police and neighbours for assisting Tamils or that an adverse political opinion for doing so was imputed to her. 8 The Tribunal found that the applicant had not been persecuted in the past by reason of her political opinion by either supporters of the PA government or by the LTTE, and that she had not been assigned an adverse political profile because she had assisted Tamils. It then considered whether, in view of its findings, there was a real chance of the applicant being persecuted if she were to return to Sri Lanka. It found that she had not been persecuted in the past on account of her membership of the UNP. It noted that the UNP had now regained power in the December 2001 election. It concluded that were the applicant to resume her membership of the UNP and actively support it, she would not be persecuted for her political opinion. Since it did not accept the applicant's claim that an adverse political opinion had been attributed to her because she had assisted Tamils, or that she had been threatened by the LTTE, it did not accept that she would have problems with either the authorities or the LTTE on her return.

BONA FIDE EXERCISE OF POWER 9 In SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43]‑[48] the Full Court summarised the propositions that emerged from the cases on whether a decision constitutes a bona fide attempt to exercise the power of review:

(a) An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker.

(b) The allegation is not to be lightly made and must be clearly alleged and proved.

(d) The presence or absence of honesty will often be crucial.

(e) The circumstances in which the court will find an administrative decision‑maker had not acted in good faith are rare and extreme. This is especially so where all that an applicant relies on is the written reasons for the decision under review.

(f) Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision‑making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision‑maker did not undertake its task in a way that involves personal criticism.

(g) Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.

(h) The Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached the task.

(i) It is not necessary to demonstrate that the decision‑maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.

THE APPLICANT'S CASE 10 After referring to cases on which some of the above propositions in [9] are based, the applicant's written submissions of fact and law note that the Tribunal based its decision on country information contained in reports made in 1996, 1998 and 1999, and continue: "The decision of the Tribunal was made on 21 January 2002 and if the Tribunal was making a bona fide attempt to decide this matter, they would have relied upon current DFAT Reports and Country information to reflect the true situation in Sri Lanka, rather than rely upon recycled reports which are between three to six years old and which are constantly repeated in its decisions. It should also have relied upon reports and country information that supported the applicant's submission that political violence was rife in Sri Lanka."

It is also submitted that "there are numerous articles/reports which highlight the fact that politics in Sri Lanka is rife and contested very vigorously and that very often around election times, violence may erupt between supporters of the main parties". The submission then sets out four reports that it asserts the Tribunal "was obliged to cite". The first is a United States Department of State report on Sri Lanka in 1999, recording that while the country is a democracy, the conduct of elections is marred by violence and accusations of electoral fraud. The second is DFAT report No 72/99 in which it is said that election violence is an issue of wide concern in the country, and political leaders have campaigned strongly against it and have warned that action will be taken against those found responsible. The third is a Reuters report in 2001 about the number of people who had been killed in violence in the lead up to the then recent election. The fourth is DFAT report No 92/98 stating that political violence is focused on elections. The applicant's submission concludes:

"The Tribunal is obliged to not only look at the most current of reports and country information, but also refer to these reports and country information which support the general tenet of the applicant's submissions and then relate it back to the facts of this case, if it is to come to a fair and just decision. The Tribunal was at least bound to consider such opposing views and then come to a conclusion. The Tribunal has failed to do this and this amounted to a lack of bona fides on the part of the Tribunal with the result that s 474 [of the Migration Act1958] did not protect the decision from review."

CONCLUSION 11 The applicant's submissions misunderstand the approach in fact adopted by the Tribunal. It first considered her claims of harassment and threats in 1994 and following years. The country reports on which it relied were those relating to the situation in Sri Lanka in those years. The 1996 report dealt, amongst other things, with the situation in 1994. Having considered these reports that related to the years during which the applicant claimed to have been persecuted, and other matters to which it referred, the Tribunal concluded that the applicant had not been harassed as she had claimed over a period of five years because of her support for the UNP. It accepted as accurate the country information referred to above and set out parts of the DFAT report of 1996. 12 The Tribunal then turned to whether there was a real chance that the applicant would be persecuted if she were to return to Sri Lanka "now or in the reasonably foreseeable future". After noting that since it had found she was not persecuted in the past because she was a member of the UNP, it did not accept that there was a real chance. In this connection it noted a Reuters briefing of December 2001 that the UNP had regained power at the December 2001 election. 13 As can be seen, when the Tribunal was considering the applicant's claims as to what happened to her in 1994 and thereafter, it considered information contemporaneous with the times. It would have been irrelevant to consider current information about Sri Lanka in assessing the state of the country after the events were said to have occurred. When it was considering the real chance of persecution on return, it had regard to current information about the country. 14 The applicant's lack of bona fides submission is quite baseless because of her misconception of the Tribunal's decision‑making process. Further, it is relevant to an assessment of the submission to record that the Tribunal did not simply rely on the country information relevant to the period 1994 and thereafter. It drew the material to the applicant's attention at the hearing, and discussed it with her in the presence of her adviser. 15 It is also relevant to the lack of bona fides claim to record that one of the reports the applicant claims the Tribunal should have considered and referred to (the second mentioned in [10]) was in fact referred to and quoted from at pages 9 and 10 of the Tribunal's decision. The fourth report mentioned in [10] is either the report quoted by the Tribunal in the middle paragraph of page 9 or another 1998 DFAT report containing the same information as the first‑mentioned report. The two other reports relied on by the applicant contain information to much the same effect as that in the 1996 and 1998 reports relied on by the Tribunal and discussed with the applicant. It was common ground that violence is prevalent in Sri Lanka at election times and in relation to elections. 16 It is to be remembered that the weight to be attributed to country information is a matter for the Tribunal, not for the Court. The observations of Gyles J in NAAX v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 312 at [52] have frequently been quoted with approval: "Evaluation of the credibility of an account given by an applicant is subjective and depends upon many factors, including observations of an applicant at the hearing, in circumstances where the Tribunal member will usually have considered other cases with a similar claimed history and patterns will often have emerged. There is obviously always a mass of country information available. Much would be taken for granted. Much would be debatable. A selection of that which is relevant to the particular case depends upon the way in which the member views the case. The judgment as to the issues upon which external country information will be relevant is entirely a matter for the Tribunal member. There is no obligation to consider any or any particular country information. Disclosure of particular country information to an applicant is, in essence, to reveal the process of reasoning of the Tribunal."

See also Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71 at [71]‑[72] per Gyles J, with whom Heerey J agreed. Although the Tribunal was not obliged to disclose to the applicant the country information upon which it proposed to rely, and which was adverse to her case, it did put the information to her and discussed it with her.

17 The application must be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

The applicant appeared in person and was assisted by an agent.

Counsel for the Respondent: C Fairfield

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 16 October 2003

Date of Judgment: 12 November 2003

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