NAAU v Minister for Immigration & Multicultural & Indigenous Affairs

WILCOX J: 1 This is an application for a review of a decision of the Refugee Review Tribunal, affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs, the respondent to this application. 2 The delegate decided not to grant a protection visa. The applicant has had the benefit of being represented by a solicitor and registered migration agent, Mr A Silva. Mr Silva speaks Tamil and he has listened to at least part of the tape of the hearing by the Tribunal into the applicant's case. 3 Mr Silva prepared an outlined of submissions which he forwarded to the Court and to counsel for the Minister, Mr Kennett, before the hearing. The outline refers to certain things heard on the tape. Mr Kennett made the objection that he has not had the opportunity of checking the extracts because the submission arrived so close to the hearing. Apparently no transcript has been typed up. Without a transcript, Mr Kennett is at a significant disadvantage. I understand this objection. I informed Mr Silva that, if I thought there was prima facie merit in his submissions that the material on the tape gives rise to an available ground of review, I would need to give Mr Kennett an opportunity of checking the accuracy of the alleged quotations. In the view I take, it is not necessary to do this. 4 The outline of submissions focuses on three matters, which are described by Mr Silva as "issues". The applicant is Sri Lankan, of Tamil extraction. He has lived and worked in Colombo for the whole of his life, with the exception of some periods when has been outside Sri Lanka. 5 The earliest incident claimed by the applicant occurred in 1983, when he was still a student. He qualified as a pharmacist in 1987. In the first paragraph of its reasons for decision, after the heading "Findings and Reasons for Decisions", the Tribunal said this: "The Applicant was vague and inconsistent when giving his evidence before me. He said that he had been arrested in 1983 because he had staged a drama in the Tamil language dealing with the communal riots in that year. However he then conceded that there was no problem with using the Tamil language or with Tamil groups. He said that the idea had been to encourage Tamil youth to rise up against the Sri Lankan Government but he then conceded that there was generally no problem in Sri Lanka with political opposition to the government of the day. He then said that the CID had fabricated a case against him but he did not suggest why they would have wished to do this." 6 Mr Silva suggested the Tribunal failed to do deal with the substance of the point made by the applicant. He said it was one thing to say the government was not concerned about the use of Tamil language or activities of Tamil groups. It was also one thing to say there was generally no problem with political opposition to the government of the day. It was altogether another thing to say there would have been no problem about a drama that encouraged Tamil youth to rise up against the government. The complaint is that the Tribunal member did not deal with this last point. 7 It seems to me there is substance in the complaint. It would be surprising if the Sri Lankan government, in the volatile situation that has occurred in Sri Lanka in recent times, was unconcerned about a play that encouraged insurrection by Tamil youth against the government. However there is a difficulty in dealing with Mr Silva's submission because of the lack of definition of what was being discussed. The Tribunal member quoted the applicant as saying "the idea" had been to encourage Tamil youth to rise up. However, the statement prepared by the applicant, in support of his application for refugee status, contains no reference to incitement to insurrection. What was said at that time was that the applicant took part in a drama titled "Tamil Kolai", which he explains means "Tamil murder". The statement goes on: "The theme of the drama centred around the fear, harassment, torture and murder faced by the Sri Lankan Tamils during the communal riots during 1983." 8 It seems to me it is not implied in that statement that the drama encouraged insurrection against the government. It would be possible for a drama to look, sympathetically, at the sufferings of a particular communal group without suggesting insurrection, even implicitly. 9 It would have been better if the Tribunal member had spelled out exactly what he was saying in regard to this first item. But it is difficult, in the totality of the findings and reasons for decision, which involve numerous alleged incidents over a very lengthy period, to think this particular matter had any impact on the result of the hearing. 10 The second issue raised by Mr Silva relates to an incident claimed by the applicant when he was taken to be interrogated by the CID. According to Mr Silva, at the Tribunal hearing, the applicant said in Tamil: "I think it is CID Headquarters. It is a CID branch in Gregory's Road." Mr Silva says that this was interpreted into English in the following way: "I was taken to Gregory's Road, I believe that is the headquarters of the CID." 11 If Mr Silva is correct, it will be noted that the interpreter did not include reference to the possibility of the place being a CID branch. The Tribunal member is then recorded by Mr Silva as saying: "You are sure you are talking about the CID?" There is then ascribed to the interpreter, the words: "Because they were not in uniforms they were in civil dress." 12 I take it that the interpreter obtained this from the applicant and the applicant was explaining why he believed the relevant people were CID personnel rather than personnel attached to some other authority, such as the ordinary police. The Tribunal member is then quoted as saying: "It is that the CID headquarters is not in Gregory's Road." 13 That is a perfectly understandable reaction. The Tribunal member had been told, so far as the English version is concerned, that the place to which the applicant was taken was the headquarters of the CID in Gregory's Road. He then questioned whether it could have been the CID because he apparently knew the CID headquarters was not in Gregory's Road. The interpreter is then quoted as saying: "This is only a branch of the CID where I was taken, that is the Gregory's Road." 14 The Tribunal member did not make any comment to suggest that what had been previously said was intended to mislead, or anything like that, but responded: "Did the people tell you they are from CID?" Through the interpreter the applicant apparently answered: "Yes, they told me in Singhalese language, that is they told me in Sinhala words that we come from CID police." 15 In setting out the history of the matter, the Tribunal made a reference to the confusion about whether the premises were the CID headquarters or a mere branch. But this matter was not referred to, in any way, under the heading, "Findings and Reasons for Decision". Under those circumstances, it seems to me impossible to impute to the Tribunal member some misuse of the information that was exchanged. 16 The point made by Mr Silva demonstrates starkly the danger of Tribunal members placing weight upon relatively minor apparent inconsistencies. If Mr Silva's translation is correct, and I have no reason to doubt that, the problem was caused by an inadequate interpretation by the interpreter; not by anything said by the applicant. However, under the circumstances, this does not seem to have mattered. The Tribunal did not list this as being something taken into account. 17 The third issue deals with the aftermath of the assassination of President Pemadasa in 1993. According to the applicant, he at that time was involved in running a lodge that happened to be within about a kilometre of where the President was killed. Apparently, the lodge was frequented by Tamils from outside Colombo. In his initial statement, the applicant made no reference to anything occurring to him immediately after the assassination of the President. However, at the hearing before the Tribunal, he said he was arrested at that time. The Tribunal member was not prepared to accept this. He pointed out there were at the time some 500,000 Tamils in Colombo, of whom 350,000 approximately were long-time residents. He expressed doubt that there would have been arrests of all Tamils under those circumstances. The point made by Mr Silva, on behalf of the applicant, is that it was erroneous to have regard to the total number of Tamils in Colombo. The significant aspect of the matter, so far as the applicant is concerned, is that he ran a lodge within about a kilometre of where the bomb exploded. It would be natural for the police to concentrate on the immediate area of the assassination and, in particular, to interrogate somebody who ran a lodging house used by Tamils from outside Colombo. 18 I have no difficulty in accepting that statement. The problem is to understand exactly what was being rejected by the Tribunal member. 19 It is perhaps not without significance that this incident did not rate a mention in the applicant's initial statement. The claim of arrest had to be considered in that context. The Tribunal made this statement concerning the assassination, under the heading "Findings and Reasons for Decision": "I likewise do not accept that the Applicant would have been arrested in a cordon and search operation following the assassination of President Premasada in 1993. Once again, as I put to him, the evidence shows that the Sri Lankan authorities are perfectly capable of distinguishing between Colombo Tamils and Tamils from the North or the East by looking at their National Identity Cards and that it is the latter group who will be detained in such cordon and search operations." The member then cited a DFAT country information report of 24 April 1998. 20 The problem is to know what is intended by the word "arrested". If by "arrested" one means something akin to what would occur in Australia, where police arrest and charge a person and deprive that person of liberty until the person is bailed or set free by a Court, then it might be expected this would have featured in the applicant's statement. If that was being intended, there would not be much relevance in referring to the ability of the police to distinguish between Colombo Tamils from the north or east by looking at their national identity cards. On that supposition, one would have assumed that they had already done that, but nonetheless decided to persist with action against the applicant. 21 If, on the other hand, the word "arrested" is simply a reference to interrogation, with such detention as is necessary in order to ask the questions, then there is no inconsistency in what the Tribunal member says. The Tribunal member is, in effect, saying that, in order to sort out those against whom action should be taken from those whom against should not be taken, it would be appropriate to look at national identity cards. Plainly, that involves some degree of interrogation. 22 I have difficulty in reaching any conclusion about this matter. The difficulty is caused by the absence of a transcript of the applicant's evidence to the Tribunal and compounded by the fact that the incident was not referred to in the applicant's original statement. That does not mean he was precluded from raising it later, it may have been something he overlooked. However, in the absence of the transcript before the Tribunal, it is almost impossible for me to know what claim the applicant was actually making. All I can say is that, although the word "arrested" seems a poor choice, there is no necessary inconsistency in the two parts of the Tribunal's reasons for dealing with this issue in the manner that it did. 23 I think Mr Silva is justified in being critical of the Tribunal's reasoning or, at least, the Tribunal's expression of its reasons. However, it has been said on many occasions that it is not appropriate for this Court to scrutinise a Tribunal's reasons for decision with an eye to finding fault. The Court should look at the reasons for decision as a whole, in order to determine whether they indicate any error that lies within the review powers of the Court. 24 Numerous matters were raised by the applicant before the Tribunal in relation to which the Tribunal was not satisfied, for reasons that it gave. Many of these matters turned directly on the applicant's credibility. No criticism has been made of the way in which the Tribunal dealt with those matters. They included matters of some significance. To take one example, the applicant claimed to have been detained for three months after May 1997 and again in December 1997. He made no mention of these arrests in the statement accompanying his original application which was prepared in the following year, immediately after his arrival in Australia. 25 Mr Silva argued that the reaction of the Tribunal, in respect of the matters to which he refers, supports an inference of actual bias. I leave aside the question whether that ground is available, having regard to the amendments to the legislation that took effect on 2 October 2001. Even if the ground is available, I do not think the matters to which I have referred can justify a finding of actual bias. 26 The other basis upon which Mr Silva put his case accepts the application to the case of what have been called the Hickman conditions. Mr Silva says the way in which the Tribunal dealt with the three issues shows a failure to make "a bona fide attempt to exercise its powers". I do not think the errors in logic or expression to which reference has been made can possibly be said to go that far. 27 The applicant is unhappy about the factual findings made by the Tribunal. That is understandable. I make no comment about the factual findings, except to the extent that I have dealt with them above in the context of particular arguments. I simply say I do not think any ground of review, available to the Court, has been made out. Accordingly, the appropriate order is that the application be dismissed with costs.