Rerukana v Minister for Immigration & Multicultural Affairs

Reasoning of the Tribunal 12 The Tribunal accepted that Mr Wathiyage had been involved, under orders, in the transfer of arms and ammunition to the LTTE in 1989 and that a Sri Lankan Commission of Inquiry had accepted Mr Wathiyage's claims. The Tribunal also accepted that Mr Wathiyage had continued to speak out about the arms deal and that he had been on the stage with a number of people at the last People's Alliance Rally before the 1999 Presidential election at which there was a bomb blast when the President was injured and many people killed. The Tribunal concluded that Mr Wathiyage had a role in the election campaign of the People's Alliance, but it had been a limited role. The Tribunal considered that Mr Wathiyage's involvement had been exaggerated in the evidence provided in support of the applicant's case. 13 The Tribunal identified the central issue before it in the following terms: "The central matters in the present case are the nature and extent of the applicant's involvement with the issue concerning the provision of arms to the LTTE in 1989 and whether this gives rise to a well‑founded fear of persecution. This involves a consideration of whether the applicant has, in the past when he was in Sri Lanka, suffered persecution as he has claimed for the reason he has claimed." 14 The Tribunal doubted that the applicant's association with the arms deal issue was as he had claimed for the following reasons: (a) The extremely close correlation between the applicant's statement and the evidence of Mr Wathiyage as set out in the Commission of Inquiry reports led the Tribunal to conclude that the person who wrote the applicant's claims in English, or the applicant when he wrote part of the 38 pages of his statement in Sinhalese, had extracts of one of the reports close to hand. The Tribunal said: "That the applicant's claimed knowledge of what occurred, as revealed at the hearing, rarely went beyond what was in the reports has contributed to my doubt that what he has claimed is a true account of his involvement." (b) The applicant's evidence was that he was simply with Mr Wathiyage when he met with important people. The Tribunal considered Mr Wathiyage's evidence that the applicant provided him with moral support was difficult to reconcile with Mr Wathiyage's rank and the seriousness of the issue at hand. The Tribunal noted that the applicant was not armed and could not have been regarded as providing a protective role for Mr Wathiyage. (c) The Tribunal had concerns about the credibility of the apparent ease of access the applicant had to a number of political leaders in Sri Lanka, notwithstanding his limited and low level political involvement with them. (d) Although the applicant had said that he was one of a few people who knew about the arms deal and that this was the issue which lost the United National Party the 1994 election, the evidence showed that many people knew about the arms deal by the time of that election. (e) The applicant's knowledge of what had occurred was very limited and was confined to what was in the reports of Inquiries "coupled with some allegations against some individuals, only one of whose names he could recall when [asked]". 15 The Tribunal made the following significant finding: "I do not accept that the applicant knows anything significant about what occurred which has not been well publicised or that the evidence indicates that he would be thought to have any such knowledge by politicians or party officials. I accept that he may have known Mr Wathiyage and known about the arms deal and its consequences for Mr Wathiyage and that he may have assisted Mr Wathiyage to stay with his aunt but all of his evidence about the nature and extent of his involvement has led me to conclude that he was not involved in all of the meetings and discussions and messages as he has claimed and that much of the account of his involvement has been fabricated on the basis of the information included in publicly available documents." 16 The Tribunal then considered a number of elements of the applicant's evidence which were not important to the conclusions it had reached, but which provided examples of what it called the "unconvincing nature" of aspects of the applicant's account. 17 The Tribunal considered the episodes in which the applicant claimed to have been threatened, questioned and injured. The Tribunal was unable to accept that it was the applicant's exposure to information about the arms deal with the LTTE which led to the treatment he had described. The Tribunal concluded: "I am not satisfied that the applicant experienced the harm which he claims to have suffered between 1991 and 1994 for the reason he has described and there is no other evidence before me about why he may have been harmed to suggest that any of the reasons in the Refugees Convention might be engaged." 18 The Tribunal then turned to the question whether there was a real chance that the applicant would face persecution if he were to return to Sri Lanka in the reasonably foreseeable future for any of the reasons which he had claimed. The Tribunal set out three reasons why it considered that there was no such real chance that the applicant would face such persecution. The Tribunal expressed its first reason in the following terms: "… I consider that he has not more than a tenuous link with Mr Wathiyage's involvement in the provision of arms and ammunition to the LTTE in 1989. I do not accept that the applicant knows anything about what occurred which has not been publicised already and I do not accept that he would be thought to know more than the little he does. Even if the applicant was one of the very few people who knew where Mr Wathiyage was between late 1989 and Mr Wathiyage's arrest in 1991 and at some other times as he claims to be, I am unable to accept that such information is relevant today, ten years later when the reason why Mr Wathiyage may have been lying low has been revealed." 19 The Tribunal also took into consideration the delay of almost four years between the applicant's first arrival in Australia on 9 April 1995 and his application for a protection visa on 3 June 1999. The Tribunal considered that this delay was not consistent with the applicant having a well‑founded fear of persecution if he returned to Sri Lanka. 20 The Tribunal's third reason which it took into account was that the applicant had made two extended return visits to Sri Lanka, each of some weeks, after arriving in Australia. The Tribunal found implausible the applicant's claim that he had been provided with assistance and protection on those visits by a customs officer and army officers.

Grounds of review 21 The applicant relied upon the ground of "jurisdictional error" pursuant to ss 476(1)(b), (c) and (e) of the Act, as it provided at the time the application was filed with the Court on 27 August 2001, and placed particular reliance on Craig v State of South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 22. In Craig v State of South Australia, the Court said at 179: "At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd: 'Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision‑making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.' The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." In Yusuf (supra), McHugh, Gummow and Hayne JJ referred to this passage in Craig and continued at 22: "No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in par (d) of s 476(1). Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1). All this being so, there is no reason to give either para (b) or para (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it 'exceeds its authority or powers'. If that is so, the person who purported to make the decision 'did not have jurisdiction' to make the decision he or she made, and the decision 'was not authorised' by the Act." 22 The applicant submitted that the Tribunal had identified the wrong issue and asked the wrong question in a number of instances and had thereby fallen into jurisdictional error. The applicant's grounds can be conveniently summarised in the following terms: (a) the Tribunal wrongly asked whether the applicant's association with Mr Wathiyage and his involvement in the arms deal revealed that he had extensive involvement in the arms deal issue; (b) the Tribunal wrongly asked whether Mr Wathiyage's political profile at the time of the arms deal and following was of such prominence that the applicant's association with him could give rise to a well‑founded fear of persecution; (c) the Tribunal identified the wrong issue in concentrating on whether information concerning the arms deal was well ventilated in the public arena; (d) the Tribunal erred in law in its consideration of what constituted persecution; (e) the Tribunal erred in law by failing to apply the "what if I am wrong test".

Ground 1 23 The applicant submitted that the correct question which the Tribunal should have asked and answered was not only whether the applicant in fact had an association with Mr Wathiyage and knowledge of the arms deal through him, but also whether he was so regarded by Government and non‑Government authorities as having that association and knowledge. I do not consider that the Tribunal asked the wrong question in this way or limited itself to considering only the objective issue of the applicant's association and involvement in the arms deal. As noted earlier (par 13), the Tribunal identified the central issue before it as relating to the nature and extent of the applicant's involvement with the arms deal issue and whether it gave rise in the applicant to a well‑founded fear of persecution. The Tribunal set out five reasons why it doubted that the applicant's association with the arms deal issue was as he claimed. In the passage of the Tribunal's reasoning set out in par 15 above, the Tribunal made a finding based on considered reasoning that not only did it not accept that the applicant knew anything significant about what had occurred which had not been well publicised, but also that, it did not accept "that he would be thought to have any such knowledge by politicians or party officials". Later in its reasons, the Tribunal reiterated this finding when it said: "I do not accept that the applicant knows anything about what occurred which has not been publicised already and I do not accept that he would be thought to know more than the little he does." 24 It can therefore be seen that the Tribunal approached the matter not only on the basis of a finding as to actual involvement in, and knowledge of, the arms deal, but also in relation to an imputed situation, namely whether it might be thought or believed by relevant authorities that the applicant had such involvement and information. 25 The applicant also submitted that the Tribunal had misunderstood the applicant's claims on the basis that he was saying that he had a high level or substantial involvement in the arms deal. I do not accept that the Tribunal misunderstood the claims which the applicant was making in relation to the arms deal. It did not, in terms, state that the applicant was claiming to have a high level of involvement or a substantial involvement in the arms deal; rather, it considered the claims made and the evidence before it relating to the arms deal and drew conclusions as to the extent of the applicant's involvement in the arms deal through Mr Wathiyage and his knowledge of it. In particular, the Tribunal's finding that the applicant was not armed and could not have been regarded as fulfilling a protective role for Mr Wathiyage when he accompanied him on particular occasions was no more than a demonstration or example of the limited involvement the applicant had in the matter.

Ground 2 26 I do not consider that the Tribunal wrongly raised and focused on the issue whether Mr Wathiyage's political profile at the time of the arms deal and following it was of such prominence that the applicant's association with him could give rise to a well‑founded fear of persecution. The applicant submitted that the correct question to ask was whether the applicant's association with Mr Wathiyage and the applicant's knowledge of the arms deal through him was the cause of the past persecution claimed by the applicant and a valid basis for a well‑founded fear of future persecution. This question was effectively asked and answered by the Tribunal in its consideration of the applicant's involvement with, and knowledge of, the arms deal. The Tribunal considered in some detail the question whether the applicant's association with Mr Wathiyage and his knowledge of the arms deal was a cause of past persecution and a basis for a well‑founded fear of persecution if the applicant returned to Sri Lanka. The Tribunal considered at some length the applicant's claims that he had been harmed and mistreated, and in a reasoned manner explained why it was not satisfied that the harm he claimed to have suffered was for the reasons he had claimed. The Tribunal also considered and explained why it concluded that there was not a real chance that he could face persecution if he returned to Sri Lanka because of his knowledge of Mr Wathiyage and the arms deal.

Ground 3 27 The Tribunal did not err or identify a wrong issue in its finding that information concerning the arms deal was "well‑ventilated" in the Commissions of Inquiry. That observation was made by the Tribunal in the context of considering and explaining the public knowledge and awareness of the arms deal. Shortly after making this observation, the Tribunal stated that the central matters in the case were the nature and extent of the applicant's involvement in the arms deal and whether this gave rise to a well‑founded fear of persecution on the part of the applicant. The applicant submitted that the correct question was whether the applicant had a well‑founded fear of persecution on the basis of his close association with Mr Wathiyage in relation to the arms deal, which was still alive, and the perception of Government and non‑Government parties that he had knowledge of the matter through Mr Wathiyage which would make him someone that both Government and non‑Government parties could use. The Tribunal asked and answered the question in this way when it explained why it considered that the applicant had no more than a tenuous link with Mr Wathiyage's involvement in the arms deal. The following finding by the Tribunal bears repeating again in the context of this ground: "I do not accept that the applicant knows anything about what occurred which has not been publicised already and I do not accept that he would be thought to know more than the little he does."

Ground 4 28 I do not consider that the Tribunal erred in law with respect to what constitutes persecution. The Tribunal correctly directed itself in relation to the relevant legal principles in considering the nature of the term "persecution". The Tribunal referred to various statements of principle in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. I am satisfied that the Tribunal did not err in its application of these principles to its consideration of the applicant's claims. 29 The applicant referred to the following statement of the Tribunal: "I have accepted that the applicant knew Mr Wathiyage and that the applicant knew about what had occurred and I accept that people associated with Mr Wathiyage may have been questioned by the police or UNP operatives about his whereabouts and the applicant could have been beaten in this context." The applicant then complained that, notwithstanding this conclusion, the Tribunal was not satisfied that there was a real chance that the applicant could face persecution: "… because of his knowledge of Mr Wathiyage and the arms deal, because of any other matter political or for any of the other reasons in the Refugees Convention." The applicant submitted that, in this way, the Tribunal misapplied the test of persecution and failed to make a finding whether the fact that the applicant had been beaten constituted past persecution. 30 However, the Tribunal was not satisfied that the harm suffered by the applicant was connected to his knowledge of the arms deal. The Tribunal was not satisfied that there was any Convention nexus between the harm suffered by the applicant and his knowledge of the arms deal. This was made clear in the following finding of the Tribunal: "I am not satisfied that the applicant experienced the harm which he claims to have suffered between 1991 and 1994 for the reason he has described and there is no other evidence before me about why he may have been harmed to suggest that any of the reasons in the Refugees Convention might be engaged." The Tribunal then explained why it held the view that there was not a real chance that the applicant would face persecution if he were to return to Sri Lanka in the reasonably foreseeable future for any of the reasons for which he had claimed.

Ground 5 31 The Tribunal did not fall into an error of law by failing to apply the "what if I am wrong test". The applicant submitted that the Tribunal erred in not applying the test in relation to the findings concerning the applicant's claims of harm between 1991 and 1994. The applicant submitted that because the Tribunal accepted that he may have been attacked, but did not accept his explanation of the circumstances of the attack, that the finding that it was not for the reasons given by the applicant was a finding that was not certain. 32 However, the Tribunal did not express any doubt about the finding that the harm experienced by the applicant was not for the reasons he had described. A court should not be limited by the actual language used by a Tribunal and should, rather, consider whether, taken over all, its reasons expose any doubt or concern about the conclusions or findings it has reached. In the present context, the Tribunal's finding is found in the passage referred to in par 30 above. When that finding is placed in the context of the reasons which precede it, it is apparent that the Tribunal was not in doubt about its finding. It was not a finding in such terms as required the Tribunal to consider the possibility that its finding might be wrong: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576; Minister for Immigration and Ethnic Affairs v Rajalingam (1999) 93 FCR 220. 33 In this context I adopt, with respect, the observations of Katz J in Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478 at [31]: "I accept, that in determining whether a protection visa applicant has a well‑founded fear of being persecuted for a Convention reason, it is necessary for the Tribunal to have regard to the totality of the case put forward by that applicant. However, when that case depends on the claimed occurrence of certain past events for a Convention reason and a fair reading of the Tribunal's statement of findings and reasons shows that the Tribunal itself had no real doubt either that those claimed past events did not occur or that, if they occurred, they did not occur for a Convention reason, then there is no warrant for holding that the Tribunal was required to have regard to the possibility that those claimed past events occurred or occurred for a Convention reason in determining whether the protection visa applicant had a well‑founded fear of being persecuted for a Convention reason. So much is established by the decision of a Full Court of this Court in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220. See, in particular, the reasons of Sackville J, with whom North J agreed, at 239‑41, [60]‑[67]; see also the reasons of Kenny J at [140]." 34 These observations are apposite in the present case. The applicant referred to a number of passages in the section of the Tribunal's reasons for decision headed "Findings and Reasons" in which it was submitted that there were equivocal remarks or doubts expressed about the claims which had been made. The applicant submitted that in these passages the Tribunal was experiencing some doubt as to the conclusion it was tentatively approaching and expressing some difficulties that the Tribunal was having in assessing the evidence before it. I do not accept this submission. When one looks at the totality of the reasoning of the Tribunal, I am satisfied that it is apparent that the Tribunal did not have any doubt about the findings it had made and the conclusions it had reached. Although one finds from time to time expressions such as "it is difficult to see …", in context, such expressions are no more than an introduction to, or a continuation of, a chain of reasoning which reaches a clear finding or conclusion based upon reasons which are explained. It is in this context that I should bear in mind the observation of Brennan CJ, Toohey, McHugh & Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272: "… the reasons of an administrative decision‑maker are meant to inform and not to be scrutinised upon over‑zealous judicial review by seeking to discern whether some inadequacy may be gleamed from the way in which the reasons are expressed." 35 I am satisfied that the Tribunal did not fall into any jurisdictional error and that no grounds for review of its decision under s 476(1)(b), (c) or (d) of the Act have been made out. 36 The application will be dismissed with costs. 37 I should add that I was greatly assisted in my consideration of this matter by the comprehensive written and oral submissions by counsel for the applicant who appeared pro bono. Counsel are to be commended for appearing pro bono in applications such as this application. Such appearances enhance the administration of justice and assist the Court in its deliberations. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Counsel for the Applicant: B Carew who appeared pro bono

Solicitor for the Respondent: Australian Government Solicitor