Sivaram v Minister for Immigration and Multicultural Affairs

THE COURT: 1 This is an appeal from an order of von Doussa J made on 25 June 1999 dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 4 January 1999. In that decision the Tribunal affirmed a decision made by a delegate of the respondent refusing the appellant a protection visa on the ground he is not a person to whom Australia has protection obligations under s 36(2) of the Migration Act 1958 (Cth) ("the Act"). The Tribunal reached that view because it was not satisfied the appellant had a well-founded fear of being persecuted for a Convention reason if he returned to the country of his nationality, which was Sri Lanka. 2 The ground on which review was sought from the Court was that procedures required by the Act to be observed in connection with the making of the decision were not observed: s 476(1)(a) of the Act. This ground relied on the allegation that the Tribunal had failed to prepare a written statement which complied with the requirements of s 430(1) of the Act. That is also the first present ground of appeal. With the leave of the Court a second ground was added at the commencement of the hearing. It alleges that the Tribunal erred in its interpretation and application of the law as to what constitutes a "well-founded" fear of persecution within the meaning of article 1A of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). However, by this second ground it was not intended to raise for the consideration of the Court matters other than those arising in support of the first ground save the application of them to the terms of the second ground. 3 The consequence is that the appeal raises the issue of the scope and purpose of s 430(1) of the Act. Section 430(1) provides: "Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 4 The precise wording of s 430(1) needs to be considered. Leaving aside for the moment the effect of decisions of this Court concerning the sub-section, it seems to us that a plain reading of s 430(1)(c) and (d) supports the following understanding of their effect: (1) paragraphs (c) and (d) are to be distinguished because the latter refers to "evidence or any other material" whereas the former refers to "findings on any material questions of fact." The implication from this is that evidence is to be distinguished from material questions of fact. This accords with the long recognized distinction drawn between facts in issue or principal facts and facts relevant to the issue: Phipson on Evidence 14th ed 1990 pars 7-01 and 7-02. The result is that the statute reinforces the distinction between material questions of fact and pieces of evidence. (2) the sub-section itself does not provide any test of materiality. "Material" is defined in Butterworths' Australian Legal Dictionary as "important, essential or relevant." The word material relates to the reasons for the decision. What is material will be determined by reference to the requirements of the statute: cf Abebe v Commonwealth (1999) 162 ALR 1 at 195 and Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. Because of the distinction drawn between pars (c) and (d) and because of the exclusion from the jurisdiction of the Court of the grounds of judicial review based on relevance (see s 476(1)(d) and (3)(d) and (e) of the Act), the test of materiality will not be determined by relevance alone. It may be that notions of "essentiality" or "significance" could inform delineation of the concept of materiality but it is not necessary here to develop that issue further. There will always, however, be the need for judgment by the Tribunal and courts of review as to whether questions of fact do or do not come within the circle of materiality. Important to that will be consideration of the nature of the claim before the Tribunal. (3) where the findings of fact of the Tribunal are positive findings of fact, par (d) will require reference in the written statement to the evidence or any other material on which those findings are based. (4) where the findings of material fact of the Tribunal are negative findings of fact, that is findings rejecting the existence of material questions of fact, par (d) may require the written statement to refer to the evidence or other material on which the rejection of the fact is based, depending upon the basis for rejection. In our view, there is nothing in a plain reading of the section which requires the Tribunal to set out the evidence which is contrary to the findings of the Tribunal on any material questions of fact where such evidence is not evidence upon which a positive or negative finding is based. It is against this background that we come to the decisions of the Court concerning the application of s 430(1) in the circumstance just mentioned. The chain of decisions and the conflicts within it have been set out by Drummond J in Baljit Kaur Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1126. It is sufficient for the present to state that the view that s 430(1) requires reference to evidence contrary to the findings of the Tribunal is supported by the decisions of the Full Court in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, see particularly Wilcox J at 30-31; Logenthiran v Minister for Immigration and Multicultural Affairs (Wilcox, Lindgren and Merkel JJ, 21 December 1998, unreported); and Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182. The contrary view was held by the majority of the Full Court in Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 (Branson J dissenting) and Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940. In Addo at par 24 the Court (Spender, O'Connor and Emmett JJ) said: "Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s430(1) of the Act." At par 31 the same Court said: "It is not necessary, in order to comply with section 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made." 5 In our opinion the view of the Full Court in Addo is to be preferred. This follows from the considerations which we have set out above. We therefore approach the appellant's case on the basis that a proper understanding of the requirements of s 430(1) shows that it does not require a Tribunal to set out evidence or any other material on which the findings of fact were not based in that such evidence was contrary to those findings. 6 The appellant's grounds previously referred to are particularised in four ways. The reasons of the Tribunal to which they are directed are fully set out in the reasons of von Doussa J and we do not propose to repeat them here, except so far as it may be necessary for the purposes of these reasons. 7 The first particularisation is that there is a lack of logic in the reasoning of the Tribunal. It is contended that when the Tribunal accepted that all the information available to it suggested that it is young Tamils recently arrived from the North or the East who are most at risk of being arrested in Colombo, it does not follow that there is not a real chance that a Tamil from Jaffna who is over forty and does not speak Singhalese will be arrested, detained or questioned by the Sri Lankan authorities in Colombo. This is to be considered in conjunction with the second particularisation which is to the effect that the Tribunal referred to evidence on this point without specificity and that a proper reference would show that those materials do not contain, in terms, the suggestion that it is young Tamils recently arrived from the North or the East who are most at risk of being arrested in Colombo. 8 These, and other particularisations, are said to arise from the following paragraph of the Tribunal's reasons: "The Applicant's representative submitted that it was not reasonable to expect the Applicant to relocate to Colombo because he did not speak Singhalese and because he would face a risk of arrest as a Tamil from the Jaffna Peninsula or more specifically from Valvedditturai. For reasons that I have given above, I do not consider that the Applicant will be at particular risk of arrest merely because he comes from Valvedditturai and I do not accept that there is a real chance that he will be arrested, detained or questioned by the Sri Lankan authorities in Colombo merely because he is a Tamil who comes from Jaffna. As I put to the Applicant in the course of the hearing before me, all the information available to me suggests that it is young Tamils recently arrived from the North or the East who are most at risk of being arrested in Colombo (DFAT cables CL821, dated 13 February 1998, CX28768, CL12970; Amnesty International, Sri Lanka: Wavering commitment to human rights, August 1996, page 21). The Applicant is aged over 40 and therefore can no longer be regarded as a 'young Tamil' nor, if he returns to Colombo now, will he have recently arrived from the North or the East.