Rajanayake v Minister for Immigration & Multicultural Affairs [2002] FCAFC 24 | Case summary

consideration 26 It is convenient to consider grounds 2, 3 and 6 together as each of them is concerned with the issue of the proper construction of the appellant's claims before the Tribunal. Mr Karp, counsel for the appellant, argued that both the Tribunal and the primary judge overlooked the distinction between actual or imputed sympathy and support for the LTTE and actual or imputed sympathy and support for Tamils. In the course of argument before this Court Mr Karp agreed that the distinction which he sought to draw between support for the LTTE and support for Tamils was analogous to the distinction between support for the IRA or the Real IRA and support for the Republican cause in Northern Ireland. 27 It is plain that Mr Karp, who also appeared for the appellant at first instance, did press ground 2(a) before the primary judge. At p 10 of the transcript of the hearing at first instance, Mr Karp is recorded as saying: "…also what wasn't addressed, which was the foundation of the issue, where [were?] the claims that he made between pages 64 and 66 of the Court Book to the effect that in the 1980s his problems were simply that he associated with Tamils and that he was vilified assaulted and extorted because of that association. Now, in my submission, those individual claims are material questions of fact…." 28 At pages 64-66 of the Court Book at first instance appear pages of the appellant's statement referred to in [5] above. The pages there reproduced contain claims that the appellant was branded a Tamil because of his association with his Tamil cousins and that police officers and local thugs assaulted him during minor racial attacks while he was accompanying his Tamil cousins. They further contain claims that after the riots in 1983 he was arrested and assaulted for entertaining Tamil youths in his residence and threatened with imprisonment if he continued to move with his Tamil cousins. In addition they can be understood to contain claims that in May 1989 he was warned by the police that they had information about his dealings with Tamil customers and that he should be prepared to answer inquiries, presumably by the police, about his Tamil customers. 29 It seems likely that the primary judge did overlook the relevance placed by the appellant on his claim that the Sri Lankan authorities considered him to be sympathetic or supportive of the Tamil cause, as opposed to the LTTE, because of his association with Tamils. His Honour's judgment contains no express reference to this claim and appears to proceed throughout on the basis that the political opinion which the appellant claimed was imputed to him was support for the LTTE. 30 Both parties invited the Court, if it formed the view that the primary judge overlooked the reliance placed by the appellant on ground 2(a), to consider the ground itself rather than to remit the matter to the primary judge for further consideration. I turn therefore to consider the Tribunal's written reasons for decision as far as the issue raised by ground 2(a) is concerned. 31 The written reasons for decision of the Tribunal refer explicitly to the appellant's claims to have been visited and assaulted in 1983 while associating with his Tamil cousins, and further to have been threatened with imprisonment if he did not cease to associate with his Tamil relatives. The written reasons for decision also refer to the appellant's claim that in 1986 he was threatened and assaulted by Sinhalese thugs and police officers in civilian dress because he assisted Tamil customers in his travel agency, and to his claim concerning the interest which the police took in him in 1989 after they arrested his three Tamil customers. 32 Importantly, however, the tribunal concluded that notwithstanding the occurrence of the above, and other incidents, the appellant had no fear of any Convention-related harm befalling him when he returned to Sri Lanka from Australia in September 1997. 33 The only incident subsequent to September 1997 upon which the appellant relied in support of his claim that he has a well-founded fear of persecution should he return to Sri Lanka, was the claimed arrest which he asserted triggered his departure from Sri Lanka in March 1998. The appellant claimed in his written statement of 21 April 1998 that he was arrested by the CID in February 1998 and accused of helping Tamils flee the country and evade arrest. He said that at this time he was accused of doing the same business as Suthesh. For the following reasons it seems plain that the Tamils that he was accused of helping at this time were LTTE militants. First, the relevant business of Suthesh was, according to the appellant's statement of 21 April 1998, helping LTTE militants to flee from Colombo by illegal means and secondly, the Tamils who needed to flee the country to evade arrest may be assumed to be Tamils with a connection with the LTTE. 34 Before the Tribunal, but not in his written statement of 21 April 1998, the appellant stated, in respect of his claimed arrest in February 1998, that his employer had paid a large bribe to secure his release, and that the police had arrested him in order corruptly to extort money. 35 The Tribunal concluded that the appellant was not in truth arrested in February 1998. Among the reasons which it gave for not believing the appellant's evidence in this regard were the facts that he claimed for the first time before the Tribunal that a bribe was paid for his release from arrest in February 1998, and the fact that he also claimed for the first time before the Tribunal that on his release from arrest he went into hiding until his departure from Sri Lanka. Although the appellant has complained, both before the primary judge and before this Court, that the Tribunal proceeded on the basis that the appellant was required to set out all of his claims for a protection visa prior to his Tribunal hearing (as to which see [41] below), he has not otherwise sought to attack the finding of the Tribunal that he was not arrested in February 1998. 36 Having regard to the findings made by the Tribunal, identified in [32] and [35] above, it seems to me that the Tribunal did not fail to address the relevant issue, namely the issue of whether the appellant had a well-founded fear of persecution for a Convention reason because he was considered by the police to hold a political opinion sympathetic or supportive of Tamils because of his association with Tamils. Rather, the Tribunal gave consideration to the claims of the appellant that he suffered harm at the hands of the authorities and Sinhalese thugs because of his association with Tamils. It concluded that his decision to return to Sri Lanka in September 1997, notwithstanding his having suffered the claimed harm, revealed that he did not at that time have a genuine fear of Convention-related harm arising from his association with Tamils. It further concluded, as I understand the reasons of the Tribunal, that nothing happened thereafter which altered this position. The only later incident relied on by the appellant was an incident which the Tribunal found that the appellant had fabricated. 37 The appellant did not contend before the Tribunal that anything happened after September 1997 which caused him to develop a fear that he did not have in September 1997 of persecution simply because of an imputed political opinion supportive of the Tamil cause. In the circumstances it was not necessary for the Tribunal to address the issue of whether the appellant was considered by the police to hold a political opinion sympathetic to or supportive of Tamils. The conclusion of the Tribunal that he did not have a relevant fear of persecution rendered that issue irrelevant. 38 I conclude that ground 2(a) was without merit, and nothing now turns on the fact that the primary judge may have overlooked the reliance that the appellant placed on it (ground 6 of the further amended notice of appeal). Further, in my view, nothing turns on the alleged failure of the Tribunal to address the issue of whether the appellant was considered by the police to hold a political opinion sympathetic to or supportive of Tamils because of his association with Tamils (ground 3(b) of the further amended notice of appeal). 39 For the present purposes the accuracy of the conclusion drawn by Hathaway in The Law of Refugee Status (1991) that: "Essentially any action which is perceived to be a challenge to governmental authority is therefore appropriately considered to be the expression of political opinion." may be accepted (see V v Minister for Immigration and Multicultural Affairs (1999) FCA 428; 92 FCR 355 (FC) per Wilcox J at [14] and Hill J at [33]). On this basis, actions perceived by the governmental authorities of Sri Lanka to be supportive of the aspirations of the Tamil minority may be considered to be the expression of political opinion. That is, evidence that the police were subjecting the appellant to serious harm, such as the deprivation of his liberty and serious assault, for the purpose of extorting money from him or those connected with him for reason of their perception that he was supportive of the aspirations of the Tamil minority could well amount to evidence of persecution for a Convention reason. I do not consider that the primary judge sought to suggest to the contrary. His Honour did, however, as I understand his reasons for judgment, indicate (rightly, in my view) that where extortion is practiced against a person in circumstances in which he or she neither has, nor has imputed to him or her, any relevant political opinion, the extortion cannot logically be regarded as persecution for reason of his or her political opinion. If the person against whom the extortion is perceived is particularly vulnerable to extortion by reason of some other characteristic protected by the Convention (ie race, religion, nationality or membership of a particular social group), it may be that he or she is being persecuted for reason of that characteristic. However, understandably, no such claim was advanced in this case. It could not have been seriously contended that the appellant had a well-founded fear of persecution by reason of being Sinhalese, and there was no evidence before the Tribunal that Sinhalese in Sri Lanka who associate with Tamils comprise a particular social group in that country. 40 Grounds 2, 3 and 6 of the further amended notice of appeal must all, in my view, fail. 41 Ground 4 of the further amended notice of appeal challenges the conclusion of the primary judge that the Tribunal did not state or assume that the appellant was required to make all of his claims at the outset when he applied for his visa. His Honour said [68]: "It was for the RRT to form a view as to whether it was reasonable to expect Mr Rajanayake to have made the claims in question which he made in response to her questions on the hearing, at the outset. It was the onerous responsibility of the presiding Member to determine, taking a realistic view of all the circumstances, the significance of his omission to make the claims in the form in which he made them at the hearing, in his earlier written statement. These are not matters for me upon a review of the RRT's decision on the limited grounds allowed by subs 476(1) of the Act." In my view the approach which his Honour took to this issue was plainly correct. Ground 4 of the further amended notice of appeal is, in my view, without merit. 42 Finally, by ground 5 of the further amended notice of appeal, the appellant argued that the primary judge erred in failing to find that the "no evidence"ground of review found in pars 476(1)(g) and 476(4)(b) was not made out. As Mr Karp acknowledged that for the ground of appeal to succeed, the Court must conclude that at least two previous decisions of Full Court of this Court are wrongly decided. Mr Karp referred to Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181; 64 ALD 1 ("Indatissa") and Jegatheeswaran v Minister for Immigration and Multicultural Affairs [2001] FCA 865. 43 Paragraph 476(1)(g) of the Act provides that the following is a ground upon which the Court may review a decision of the Tribunal: "That there was no evidence or other material to justify the making of the decision." However, the ground of review specified by par 476(1)(g) is qualified by par 476(4)(b) which provides: "The ground specified in paragraph (1) (g) is not to be taken to have been made out unless: (a) … (b) The person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 44 Mr Karp contended that on the proper construction of par 476(1)(g) it is a question of fact and degree whether the evidence or other material before the Tribunal justified the making of the decision. He submitted that "it will almost inevitably be necessary for the Court to engage in a qualitative assessment of the remainder of the evidence". 45 However, in Indatissa the Court (Sundberg, Emmett and Conti JJ) at [26]-[29] said: "There are three requirements for establishing the ground of s 476(1)(g), as qualified by s 476(4)(b). The first requirement, to be found in s 476(1)(g) itself, is that there was no evidence or other material to justify the making of the decision. The second requirement, as found in the first limb of s 476(4)(b) is that the decision under review is based on the existence of a particular fact. The third requirement, found in the second limb of s 476(4)(b), is that that fact did not exist. Unless each of those requirements is satisfied, the ground is not be [sic] made out. It is not sufficient simply to establish the two matters referred to in s 476(4)(b). That paragraph qualifies s 476(1)(g). It does not constitute a definition of what will amount to there being no evidence or other material to justify the making of the relevant decision. That is to say, it is not sufficient to show that a decision was based on the existence of a particular fact and that that fact did not exist. If that was sufficient, any decision of a Tribunal based on the existence of a particular fact could be challenged in the Federal Court by adducing evidence designed to persuade the Federal Court to reach a different conclusion concerning the existence of that fact. Such an approach is demonstrably unsound. It is beyond question that the power of the Court under s 476(1) generally and s 476(1)(g) in particular does not extend to a re-examination of any of the factual matters ventilated before the Tribunal. In other words, it is only if it can be shown that there was no evidence or other material to justify a decision that it is necessary to consider s 476(4). If there is before the Tribunal any evidence or material capable of supporting the particular fact on the existence of which the decision is based, the ground cannot be made out. Assuming, for present purposes, that the Tribunal's decision was based on the existence of a particular fact, namely, the discrepancy between the evidence of Mr Indatissa and the evidence of his father's letter, there was in the present case evidence capable of supporting the existence of such a fact. That was the evidence tendered by Mr Indatissa himself, namely, Mr Jayakody's translation of his father's letter. The first enquiry should have been whether there was any evidence or material capable of supporting the so-called particular fact. Once that enquiry established that there was such evidence, that should have been an end of the matter. It was impermissible to take account of further evidence designed to contradict evidence before the Tribunal upon which the Tribunal based its decision." 46 A Full Court comprised of five judges considered the issue of circumstances in which one Full Court of this Court should embark on a reconsideration of a previous Full Court decision in Transurban City Link Ltd v Allan (1999) FCA 1723; 95 FCR 553. The Full Court at [27]-[31] said: "It is not in doubt that a Full Court of this Court has power to decline to follow the previous decision of a differently constituted Full Court. The Court is not bound to perpetuate error if error there be. Nor is it in doubt that while the Court has that power, it is a power which should be exercised with great care. The doctrine of precedent, which is fundamental to the common law, brings with it the consequence that decisions of an intermediate court of appeal will be binding on single judges within the same court hierarchy. They will be relied upon by the broader community and the profession. Decisions of a Full Court of this Court are entitled to due respect and will not be lightly departed from. In Nguyen v Nguyen (1990) 169 CLR 245, at 268‑269, Dawson, Toohey and McHugh JJ, observed that the extent to which the appellate court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself, citing the judgment of Bowen CJ and Forster J in Chamberlain v The Queen (1983) 72 FLR 1 at 8‑9, and noted also that the Full Court of the Federal Court will depart from a previous decision if convinced that it is wrong. Their Honours then said: 'Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law ...'. See also Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492. A differently constituted Full Court would, of course, decline to follow the decision of another Full Court if it concluded that the previous decision was clearly erroneous. It would be wrong to do this merely because the matter was one on which minds might differ: cf Magman International v Westpac (1991) 32 FCR 1 at 20 per Hill J. What their Honours said in Nguyen must be read in the context of their previous remarks. The statement of principle in Chamberlain v The Queen, cited with evident approval by their Honours, was qualified by the word "normally". The use of expressions of this nature leaves the way open for an approach that is appropriate to the circumstances of a particular case: see La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204. Towards the conclusion of their joint judgment in Nguyen, Dawson, Toohey and McHugh JJ, noting that appeals to the High Court were now by special leave only, and that the appeal courts of the Supreme Courts of the States and of the Federal Court were, in many instances, courts of last resort for all practical purposes, observed (at 269‑270): 'In these circumstances, it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions. In cases where an appeal is not available or is not taken to this Court, rigid adherence to precedent is likely on occasion to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty.' Beyond this principle, we do not think it possible, or even desirable, to formulate exhaustive criteria upon which this Court should act when asked to reconsider an earlier decision, for so much will depend upon the nature of the controversy, the strength of the arguments and the particular circumstances attendant upon the case. …" 47 In my view, it cannot be said that the decision of the Full Court in Indatissa is clearly erroneous. It is consistent with long established authority that an administrative body such as the Tribunal does not commit an error of law merely because it finds fact wrongly or on a doubtful basis, or because it adopts unsound or questionable reasoning (see Minister for Immigration and Multicultural Affairs v Rajalingam (1999) FCA 719; 93 FCR 220 per Kenny J at [146]). I consider that it would be wrong for the Court to decline to follow Indatissa. As Mr Karp acknowledged, the adoption of this view means that ground 5 of the further amended notice of appeal must fail. 48 The appeal, in my view, should be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson

Rajanayake v Minister for Immigration & Multicultural Affairs

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (12)