Subramaniam v Minister for Immigration & Multicultural Affairs

Federal Court of Australia (Full Court)|2002-08-27|Before: Hayne JJ, Gleeson CJ, Finkelstein JJ, Drummond J

background 37 The relevant background facts which give rise to this appeal are contained in the reasons of Drummond J.

the issues 38 There are two separate but related issues raised by this appeal. Both concern the use which the appellant contends the Refugee Review Tribunal ("RRT") made, or failed to make, of the medical report by Dr Laila Rotstein, the report of a psychologist, Erna Thomas, and the report of Leo Sexton, another psychologist. 39 The appellant contends that the RRT failed to recognise and to deal with these reports as expert evidence of a psychological and medical nature and treated the material as hearsay, and presumably did not give them proper weight. Such a failure, it was submitted, was a jurisdictional error which was reviewable under s 476(1)(b), (c) and (e) of the Migration Act (1958) (Cth) ("the Act"): Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, 21. 40 The appellant also contends that the RRT failed properly, or at all, to consider, or take into account, relevant material being the psychological and medical reports. Such a failure, it was submitted was a further jurisdictional error which was reviewable under s 476(1)(b), (c) and (e) of the Act.

discussion and conclusion 41 The appellant's first contention is based upon the following statement of the RRT : "The psychological reports that have been provided by the Applicant indicate that he suffers from various psychological ailments. Given the atrocities visited on his family in 1989 there is no reason to doubt that he continues to suffer. However, the Tribunal does not accept other aspects of the Applicant's claims, for the reasons set out above, and does not find those claims to be any more believable because they have been repeated to a number of medical or psychological practitioners." The appellant submits that this statement demonstrates that the RRT regarded the psychological evidence merely as hearsay evidence. It was submitted that the RRT had no regard to the evidence to determine whether or not there was consistency between the psychological symptoms and the claims of persecution. 42 The statement of the RRT, to which the appellant referred, has to be construed in the context of its reasons as a whole. In those reasons, the RRT records the appellant's case as put to it and says with respect to the reports: "The Applicant has provided reports from Erna Thomas, psychologist and Dr Laila Rotstein, consulting physician, (dated 21 July and 21 August, respectively). The former states that the Applicant sought counselling on 22 June 1998, after DIMA rejected his application. It does not provide a history of his counselling but concludes he suffers from Post Traumatic Stress Disorder 'as a direct result of his earlier experiences in his home country' and that 'it is detrimental to [his] psychological welfare to be denied a protection visa ...' The latter states that the author initially met him three days before the report was made. It reiterates the history he related to the author, although it adds that he and his mother went to Colombo before they fled to India and that, after he returned to Colombo 'riots recommenced again in 1995 and he was arrested on several occasions and detained for questioning merely because of his birth place ...' The author concludes that she 'would like to lend my support to his application based on extremely emotional stress he has and continues to suffer as a result of his past experiences.' Another letter from Dr Traill of Melbourne University seeks an expedited review application. The Applicant also provided a report from Mr Leo Sexton, psychologist, dated 4 December 1998. The report is based on 10 counselling sessions between August and December 1998. It more or less recounts the history the Applicant provided in his claims. It adds that 'he was easily identified as a Tamil as he could not speak Sinhala and his ID card showed his place of birth to be Jaffna'. The report concludes that 'from the age of 13 [the Applicant] and his family have been identified as LTTE supporters which has resulted in several life-threatening traumas, the tragic loss of his father and brother, and constant police harassment and persecution. ... For the most part he has been resilient, and developed strong and successful coping strategies. In response to the stress and threat of a negative primary decision in his refugee application his psychological defences were shattered and he experienced symptoms which were consistent with a delayed post-traumatic stress reaction'. It goes on to conclude that Applicant 'is now coping well' and recommends further counselling should the trauma be re-triggered." 43 The RRT accepted the evidence of the appellant as to the murder of his father and brother by the Indian Peace Keeping Force ("the IPKF") in 1989. It said: "The Tribunal accepts that the Applicant's brother was detained in 1984 and that he was killed, along with his father, by members of the IPKF in 1989. He claims that they were killed because they were involved with the LTTE, although the evidence he provided suggests that the IPKF went on a rampage of revenge after some of its members were killed in the village where the Applicant's family lived, and generally attacked males in that village. The eye-witness accounts suggest that may [sic] of the victims were innocent, although that does not exclude the possibility that the IPKF believed they were all associated with the LTTE. The Applicant was 13 years old at that time and was able to escape. He returned to his house with his mother after a week or so, when the IPKF was still in control, and was not harassed during the following year, although it is common knowledge that the LTTE utilizes the service of young teenagers. The Applicant's brother in Colombo was not harassed and was able to leave the country in 1991 to pursue his studies in Australia. The Applicant's mother also reported damage to her properties to the police without encountering harm, although it is apparent that the police were also opposed to the LTTE. The Applicant and his mother were subsequently able to travel to Colombo, make arrangements about his father's pension and then be sent to India to find refuge. The assistance given by Sri Lankan authorities in those efforts does not sit comfortably with a claim that the Applicant's family was associated with the LTTE or suspected of such an association. The circumstances suggest that the Applicant's father and brother were not affiliated with the LTTE but, even if they were, the IPKF, the Sri Lankan security forces and other relevant authorities did not attack other family members for such an affiliation. Before the Applicant fled to India, the Sri Lankan government had pressured the IPKF to leave in March 1990, in the wake of a violent battle in the north between the LTTE and its allies and militant Sri Lankan groups that supported the IPKF, and an even more violent nationalistic movement in the south (see the Department of Foreign Affairs and Trade (DFAT) publication Refugee Determination Country Profile: Sri Lanka (Canberra, July 1993) at 10 - 12). The Applicant remained in Sri Lanka until November 1990 without encountering any harm at the hands of the IPKF or any of the militant groups that opposed or supported the IPKF or the Sri Lankan authorities. The Tribunal is satisfied that members of his family were killed and property was damaged by the IPKF as a consequence of an ambush of its members. The Applicant was not suspected of involvement in that ambush and the IPKF has long gone from Sri Lanka and no longer poses any threat to the Applicant, notwithstanding that he continues to suffer the effects of the trauma of the attack in 1989." 44 The RRT rejected the appellant's claims that he had been harassed and tortured at the hands of the Sri Lankan authorities between October 1995 and July 1997 when the appellant left Sri Lanka with a student visa to undertake studies at the University of Melbourne. The reasons for the rejection of these claims are set out in some detail in the RRT's reasons, and need not be repeated. 45 Before arriving at the conclusion that the appellant was not "a victim of attack by the Sir Lankan authorities on account of an imputed connection with the LTTE", the RRT "considered the various letters provided by the applicant which are said to corroborate his story". The RRT then dealt with a letter from the appellant's mother, a letter from Dr Ganesan and a letter from Dr Gunnaika. Having considered the alleged corroborative effect of that material, the RRT then dealt with the alleged flight of the appellant's landlord to Canada after the appellant arrived in Australia because the landlord was harassed over the appellant's alleged LTTE connections. 46 It is at this point in the reasons that the paragraph concerning the medical and psychological reports appears. After discussing the reports, the RRT concluded: "In all of the circumstances, the Tribunal is satisfied the Applicant has contrived his story of being harassed by the authorities when he was in Colombo, although it accepts that his family were the victims of the IPKF rampage in 1989, as he described. ..." 47 When looked at in context it is apparent that, contrary to the contention of the appellant, the RRT had regard to the medical and psychological reports. It accepted the experts' opinions that the appellant "suffers from various psychological ailments". It accepted that the cause of those "psychological ailments" were the death of the appellant's father and brother and the circumstances in which they were killed. To the extent that the experts expressed the opinion that these events caused the appellant to suffer post-traumatic stress, the RRT accepted that opinion. However the implicit opinions of the experts that the symptoms were also consistent with the additional claims to persecution, which we think the tribunal took into account, did not persuade the RRT of the truthfulness of the claimed assertions, because the tribunal was of the view that the evidence was not credible. The RRT said that the mere fact that the claims were repeated to the experts did not make them on that account alone any more credible in the judgment of the RRT. 48 In our view, the RRT considered and accepted the reports in question to the extent that the underlying facts relied upon to found the opinions were proved to the satisfaction of the RRT. As to the balance of the reports, it weighed the opinions expressed by the experts (including, we think, the implicit acceptance of the appellant's account of events) against other evidence which it accepted and formed a judgment that the appellant had contrived his story of harassment by the Sri Lankan authorities. 49 It follows that the appellant has failed to make out the underlying basis upon which he sought to base his argument that the tribunal fell into jurisdictional error for the purposes of s 476(1) of the Act. 50 In the circumstances there is no need to consider the ambit of the concept of jurisdictional error as explained by the High Court of Australia in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. Accordingly, we express no opinion on that subject. 51 The appeal should be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Cooper and Finkelstein.

Migration Act 1958(Cth)s 476(1)(b), 476(1)(c), 476(1)(e)

9 As appears from the reference Yusuf at [82] to what was said in Craig, their Honours in Yusuf regarded the Refugee Review Tribunal as a tribunal of the kind the subject of the dictum in Craig, ie, as a tribunal lacking authority to make an order or decision "otherwise than in accordance with the law". 10 I understand their Honours in Yusuf at [82] to hold that, if the Tribunal does make an error of law and if that error affects the Tribunal's exercise of its power, eg, affects its decision to grant or refuse a protection visa, then that error of law will constitute jurisdictional error and provide a ground for review of the Tribunal decision under either s 476(1)(b), (c) or (e), because the Tribunal is not empowered to make a decision otherwise than in accordance with law. Their Honours were careful to indicate that not every error of law will have that consequence; they explained how to identify the errors of law that will. If the Tribunal makes an error of law and if that error causes it to ignore relevant material or to rely on irrelevant material or "at least in some circumstances" to make an erroneous finding of fact and if that in turn affects the Tribunal's exercise of power, then and only then will there be jurisdictional, ie, reviewable, error because the decision, so flawed, will have been made otherwise than in accordance with the relevant law which the Tribunal must apply. 11 That an error in fact finding is only relevant to the existence of reviewable error within s 476(1)(b), (c) or (e) if it results from an error of law and thus can lead to an ultimate decision that is not made in accordance with law and so beyond jurisdiction is stressed in Yusuf at [83] to [85]. In the passage I have emphasised at [84], their Honours stress that for there to be reviewable error within s 476(1)(e), as with s 476(1)(b) and (c), there must be an error of law that leads to an ultimate decision that is not made in accordance with law, in the course of acknowledging that such an error of law may be revealed by errors of fact finding, including ignoring relevant material. But such errors in finding the facts do not show reviewable error unless they can be seen to reveal some error of law such as a failure to correctly understand the law to be applied in the particular case. 12 The proper application of s 476(1)(b), (c) and (e), as explained in Yusuf at [82] to [85] can be illustrated in this way: if the Tribunal correctly identifies the legal principles to be applied in determining whether a protection visa applicant has a well-founded fear of Convention persecution, but, eg, fails to appreciate that certain evidence is probative of the existence in the applicant of such a well-founded fear, it will have ignored relevant material, but that will generally be a mere error of fact. In such a case, the Tribunal will not have made any error of law that has caused it to disregard relevant material. So its ultimate decision not to grant the visa would not be beyond its jurisdiction, limited as it is to deciding in accordance with law, though the Tribunal's decision would be flawed with non-reviewable error of fact. If, however, the Tribunal were to misinterpret the expression "a well-founded fear of being persecuted" in the Convention and if, in consequence of that error of law, it were to ignore material probative of the applicant's claim to fearing persecution and if it were to go on and refuse the visa, the exercise by the Tribunal of its power with respect to protection visas would have miscarried. Its decision would be beyond jurisdiction and so flawed with reviewable error within s 476(1)(b), (c) and (e) since its only authority is to make a decision in accordance with the law. But whether or not the Tribunal states in its reasons what appears to be the correct interpretation of the phrase in the Convention, material ignored by it may be so strongly or clearly probative of the existence of a well founded fear of persecution that it should be inferred that the Tribunal in truth misunderstood the true meaning of the Convention phrase. In that case too, the decision will be one that is not made in accordance with the relevant law and will thus be beyond jurisdiction. However, just to ignore material logically probative of a person's claim of having such a fear will not necessarily justify an inference that the Tribunal misunderstood the true meaning of the Convention phrase. If the material ignored is but a piece of information in the nature of circumstantial evidence that tends to make the person's account of having suffered persecution more believable, that is not likely to involve jurisdictional error: to ignore evidence of that character will not ordinarily be explicable only on the basis that the Tribunal misunderstood the true meaning of the phrase in the Convention. To ignore evidence of that character will not therefore justify the conclusion that the Tribunal made its decision otherwise than by applying the true meaning of the Convention phrase. 13 This reading of Yusuf is, I think, consistent with the decision of the Full Court in SCAV of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 182 (Wilcox, Branson and Marshall JJ). There, after referring to the statement in Yusuf at [82], their Honours said of it that before there could be a reviewable error, it had to occur "in a way that affects the exercise of power" and that that required there to be an error which resulted in "the decision … not [being] one reached in accordance with law". Their Honours accordingly rejected a claim that the Tribunal's decision was flawed with reviewable error because of errors in its factual assessment of the appellant's credibility. In the absence of error on the part of the Tribunal in its understanding of the legal principles to be applied in determining a claim for a protection visa (and none was identified in that case), any errors made by the Tribunal in assessing the applicant's credibility could only be mere errors of fact not capable of review under s 476.

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