Tharairasa v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-04-20|Before: Carr J

Introduction 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 18 November 1999, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, a 22 year old citizen of Sri Lanka of Tamil ethnicity, arrived in Australia on 3 August 1999. On that date he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department"). On 20 September 1999 a delegate of the respondent refused to grant the applicant a protection visa. On 27 September 1999 he sought review of that decision by the Refugee Review Tribunal.

The Decision of the Tribunal 2 In its reasons for decision the Tribunal first set out the relevant article of the Refugees Convention and the law relating to the interpretation of that article. No issue is taken with its exposition of the relevant law. The Tribunal then outlined the applicant's claims, submissions and evidence made and given orally and in writing to the Tribunal and to the Department. 3 The claims made by the applicant can be conveniently summarised as follows: · at a time between April 1996 and November 1998, while the applicant was at school in Jaffna, unfounded rumours started circulating that he was a member of the Liberation Tigers of Tamil Elam ("the LTTE"); · after the LTTE had attacked an army convoy, members of the Sri Lankan army attended at the applicant's home and asked him to show them where the LTTE members were. The army indicated that they intended to take the applicant away with them, but his mother was able to persuade them to leave him. The army took the applicant's identity card and ordered him to report at their nearby base every day. Thereafter the applicant attended at the army base every day and, as ordered, carried out menial tasks for the army; · a person named Arunan, who is now missing, informed the army that the applicant supported the LTTE. The applicant was beaten and tortured by the army while in Jaffna from August 1996 onwards, on many occasions. He and his family decided that they could not continue living in Jaffna under those circumstances; · the family sold some of their property and the applicant's uncle took him to Colombo. In November 1998 the applicant started living with his uncle at a place called "Westcourt Lodge". He had to bribe police in Colombo to obtain registration; · at midnight on 28 November 1998 an army unit in Colombo arrested him and handed him over to the police on suspicion of membership of the LTTE. On 29 November 1998 he was taken by the police to Welikade Prison where he was kept in company with Sinhalese prisoners who had committed serious crimes, including murder. He was deprived of sleep and assaulted by both the prisoners and, on occasion, prison officers. The latter beat him with rubber truncheons. He was also denied proper food. Eventually his uncle bribed the police to accelerate the proceeding of his case and the court set him free on 7 December 1998; · on 31 December 1998 the applicant was again arrested. While in detention he was assaulted by the prison officers who inserted a stick into his anus causing him injury from which he still suffered by bleeding. He was released the next day; · in February 1999 he was again arrested, but released the next day; · on 30 July 1999, while coming out of the Ganesh Temple the police again arrested the applicant. His uncle bribed the police and he was released on the same day on condition that he reported to the police on the following day. His uncle's friend, a Tamil, had guaranteed personally to take him there; and · the applicant was told by his uncle, by telephone, in September 1999 that he (the uncle) had been arrested. 4 In summary, the Tribunal's findings were as follows: (a) The Tribunal accepted that the applicant was a Sri Lankan citizen and further that he was a Jaffna Tamil. (b) The Tribunal accepted that the applicant had been taken into custody for 9 days from 28 November 1998 to 7 December 1998. (c) The Tribunal also accepted that the applicant had been detained for a day or less on 31 December 1998, 3 February 1999 and then again on 30 July 1999. The Tribunal found that it was clear from the applicant's evidence that in each of these cases he was not being targeted specifically "… but was caught up in the general security processes in Colombo." The Tribunal found that the security forces were no longer interested in the applicant, but were simply carrying out their security procedures. The Tribunal rejected the applicant's claim that he was freed "under conditional release" on 30 July 1999. Nor did the Tribunal accept that the applicant was asked, on that occasion, to return the next day to make a further statement. The Tribunal said that if the security forces had not been satisfied with the applicant's explanations they would not have released him. The applicant's evidence before the Tribunal was that he was stopped at a temporary checkpoint when on his way back from the Ganesh Temple and released after six hours. The Tribunal noted that on the applicant's arrival at Perth Airport he had said that the Sri Lankan police had not recorded this incident as they only wanted money. (d) The Tribunal rejected the applicant's claim that the Sri Lankan army suspected him of being an LTTE member. In that regard the Tribunal made the following observations: "The fact that he was able to leave Jaffna is consistent with a view that the security forces did not have any interest in him. The Tribunal finds that the Applicant's profile in Jaffna is not such that would indicate that he is suspected of belonging to or a sympathiser of the LTTE. [The Tribunal examined country information including a cable dated 9 June 1999 from the Australian Department of Foreign Affairs and Trade, the 1996 UNHCR Current Guidelines on newly-arriving Sri Lankan asylum seekers and an edited fax dated 1 July 1998 from UNHCR Canberra to the Australian Government on deportations to Sri Lanka]. The Applicant claims that young Tamils are suspected of being LTTE and the country information supports this to some extent. It provides that young men from the North or East may be at particular risk in Colombo after LTTE attacks in that city, especially if those people cannot provide an adequate reason for being in Colombo. In relation to the North and part of the East of Sri Lanka the country information is that it is Tamils who are suspected of association with the LTTE who are targeted by the authorities. The Applicant does not fall into this group. The Tribunal does not accept, on the basis of country information, that all young Tamils face a real chance of persecution because they are Tamil or that the Applicant faces a real chance of persecution for reasons of his ethnicity. In respect to his arrival in Colombo, referring to the country information above pertaining to the situation for returnees, which is more applicable to the Applicant as he is not from Colombo, the Tribunal draws the conclusion that the Applicant may well be stopped and questioned at Colombo Airport since he does not have extensive documentation but such detention would not constitute persecution as it is a legitimate means for Sri Lanka to deal with its security. The Tribunal is further satisfied that the Applicant would not be persecuted for a Convention reason on return, given it has found that he is not a member of the LTTE. Nor does it accept that he would be persecuted on arrival because he is a young man from the North." (e) The Tribunal then examined the question whether the applicant would be able to return to Jaffna. On the basis of some independent country information, the Tribunal found that it was safe for returning asylum seekers, originally from Jaffna, to resume residence in the Peninsula by travelling there either by air or sea. (f) The Tribunal did not believe the applicant's account about how he had obtained a passport. Originally the applicant claimed that he had obtained the passport in Colombo in November 1998 about one week after making application for it. He subsequently changed this part of his statement to say that he had obtained the passport in March 1999 from an agent who facilitated his departure. It would appear that the Tribunal did not accept this. In any event, it found that the fact that the applicant was able to obtain a legal passport in his own name was a further indication that he was not of any interest to the authorities. The applicant's evidence was that he handed the passport to an agent/people smuggler at Singapore. The Tribunal found that to be "implausible" and concluded that the applicant had destroyed his passport to bolster his claim that he would be liable for a fine or imprisonment if returned to Sri Lanka without documentation.

Application for Order of Review 5 The applicant, who was represented by Mr H Christie of counsel (instructed by Legal Aid WA) relied upon three grounds of review. The First Ground - Failure to comply with s 424A of the Migration Act [when read with s 476(1)(a)] 6 Section 476(1)(a) of the Migration Act 1958 (Cth) ("the Act") relevantly provides that application may be made for review of a decision of the Tribunal on the ground that procedures that were required by the Act to be observed in connection with the making of the decision were not observed. 7 Section 424A of the Act provides as follows: "424A (1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) . . . (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." 8 Mr Christie, on behalf of the applicant, submitted that the Tribunal, in reaching its decision, had relied on country information (which I have described above) which included information that it was reasonably safe and practical for the applicant to return from Colombo to Jaffna, if returned to Sri Lanka, provided that he was not suspected of being a member of the LTTE. 9 It was common ground that the Tribunal had not informed the applicant of any of the country information on which it intended to rely. 10 Mr Christie submitted that the exception provided in s 424A(3)(a) should not be interpreted "broadly" so that it excluded all country information, except that which specifically referred to the applicant and what he described as "other special individuals", but as only excluding country information which was by way of a general background nature. When the country information was to be specifically applied to the applicant by the Tribunal, he contended that the Tribunal should have provided the applicant with such information. It should have been made available to the applicant, so that he had an opportunity to comment on it or counter it. The restrictions placed on the natural justice requirements of s 424A should, so it was put, be interpreted narrowly to refer to information which was being used by the Tribunal by way of background only. 11 The applicant relied upon the similarity between the provisions of s 424A and the requirements which s 57 of the Act placed on the Minister and his delegates at the primary decision-making stage. Decisions such as Cho v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 487 (at first instance) and Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339 (Full Court) and Meadows v Minister for Immigration and Multicultural Affairs (1998) 54 ALD 654 were relied upon by the applicant as indicating a beneficial interpretation of s 57 which should be applied to its analogue at the Tribunal review stage, s 424A.

My Reasoning 12 Neither counsel was able to cite to me any authority on the interpretation and application of s 424A. That is perhaps not surprising because it was one of six new sections inserted into the Act last year, all of which came into effect on 1 June 1999. Lee J referred to s 424A in Mr A v Minister for Immigration and Multicultural Affairs [1999] FCA 1086 as imposing the same obligation on the Tribunal as is imposed on the Minister by s 57. Since the hearing of this matter, Hill J has made some observations about the application of s 424A in Naing v Minister for Immigration and Multicultural Affairs [2000] FCA 344. But the facts and circumstances of that case were so different to the present case that I have not derived any assistance from his Honour's observations in deciding this matter. 13 I accept that the provisions of s 424A are relevantly identical to those of s 57, which applies at the primary decision-making stage. Nevertheless, I found nothing in the three decisions referred to by the applicant which assisted his case. On the contrary, there is a passage in Cho at first instance (at 495) which confirms that the information which s 57 requires to be given to an applicant is information specifically about an applicant or another person which "would be the reason, or part of the reason" for refusing to grant a visa. I could not find anything else in the authorities which might assist in the disposal of this matter. 14 The explanatory memorandum circulated when the relevant legislation [Migration Legislation Amendment Bill (No. 1) 1998] was introduced does not assist other than to indicate that the six new sections are to provide a code of procedure which the Tribunal is to follow in conducting its review. 15 In my opinion, the language of s 424A is clear. Section 424A(1) is expressed to be subject to subsection (3). Subsection 3(a) provides that the section does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. 16 I think that the exclusion worked by subsection (3) should be applied according to its terms in this matter. The country information upon which the Tribunal relied was not specifically about the applicant or another person and it was just about a class of person of which the applicant is a member i.e. Tamil civilians, deportees to Sri Lanka, young Tamils, and Tamils wishing to return to Jaffna from other parts of Sri Lanka. In those circumstances, I do not consider that s 424A required the Tribunal to give particulars of this information to the applicant. Accordingly, I reject the applicant's first ground.

Third Ground - Failure to Comply with s 430 when read with s 476(1)(a) of the Act 17 The applicant contended that the Tribunal had incorrectly applied the law relating to persecution and, possibly, also the law relating to such persecution being caused for a Convention reason (Ground 2). The applicant further claimed that the Tribunal had failed to comply with s 430 of the Act in that it had not set out its findings on certain material questions of fact (Ground 3). 18 It is convenient to consider both of these grounds together because, on the applicant's case, they overlap by reason of the Tribunal's alleged failure to consider specifically the instances of persecution recounted by the applicant. 19 The applicant contended that the Tribunal, by expressly accepting certain aspects of his claims, had impliedly accepted his other, associated, claims. The applicant submitted that the Tribunal generally indicated which claims it did not accept, rather than making positive findings of fact. It was implicit, so it was put, that the Tribunal accepted the applicant's account except where it was specifically rejected. The details were as follows: · the Tribunal appeared to accept the applicant's evidence that his immediate reason for leaving Jaffna was the requirement by the army that he report to their camp on a daily basis and there perform menial work which amounted to "slave labour"; · the Tribunal accepted that the applicant was imprisoned from 28 November 1998 for nine days. It did not appear to dispute, so the applicant argued, his evidence that during this period he was placed in a cell with Sinhalese prisoners and beaten up by them and also beaten by the guards of the prison with rubber pipes; · the Tribunal also accepted the applicant's claims of instances of detention on 31 December 1998, 3 February 1999 and 30 July 1999. This meant, on the applicant's case, that the Tribunal accepted the applicant's claim that he was assaulted by having a stick inserted into his anus causing him injury from which he still suffered bleeding. 20 All of these incidents would, so it was submitted, appear to be incidents of persecution and for a Convention reason, namely that the applicant was a young Tamil male, even if he was not suspected of being a member of the LTTE. 21 It was one thing, so the applicant argued, for the Tribunal to find that questioning and detention overnight was not, in itself, persecution but simply a routine security operation. However, the Tribunal had, so the applicant contended, fallen into error when it ignored the fact that questioning and detention were accompanied by torture or gross physical or sexual assault. 22 The applicant contended that the Tribunal's failure to deal with these incidents in its reasoning clearly showed that it had failed to understand and apply the law relating to persecution, to the facts as found by it. 23 Further, so the applicant contended, the Tribunal had at most only dealt with whether the applicant was at risk of persecution for the Convention reason of imputed political opinion. The Tribunal was also required to consider, so it was put, whether the applicant had suffered in the past and would suffer in the future from persecution simply by reason of being a young Tamil male (i.e. on grounds of race). The question which the Tribunal should have asked was whether there was a real chance that the applicant, if returned to Sri Lanka and whether detained at the airport in Colombo or as a result of periodic sweeps against young Tamil males in Colombo who did not have papers showing that they were born there, would not merely be detained and questioned but would suffer from beatings, sexual assault or other torture. Further, so it was submitted, the Tribunal was required to ask whether, if the applicant did return to Jaffna, there was a real chance that the army would again require him to attend at that camp on a daily basis and work for them, effectively as slave labour. This, so it was submitted, had nothing to do with the army suspecting the applicant of being a member of the LTTE, but rather the army's treatment of the Tamil civilian population. 24 The applicant submitted that asking a wrong question or failing to ask the right question may be error of law, or might indicate the Tribunal's misunderstanding of the law to be applied. A failure to consider a particular issue that is required to be considered would, on the authorities, so the applicant submitted, be an error of law. The applicant cited Meadows at 661, 665, Mohamed v Minister for Immigration and Multicultural Affairs [1999] FCA 371 at para 17 and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at para 99.

My Reasoning 25 The applicant relied, in part, upon the beatings which he said that he sustained at the hands of the army before he left the Jaffna area. I am prepared to infer, and do so, that the Tribunal did not accept those claims (see its reasoning at p 7 lines 6-11). Counsel for the applicant acknowledged as much at the hearing. 26 The applicant also claimed to have been beaten by prisoners and, more importantly, by prison officers when imprisoned between 28 November 1998 and 7 December 1998. Then there was the further occasion, on 31 December 1998 when he claimed to have been beaten and then tortured by the sexual assault described above. Finally there was his claim to have been beaten when imprisoned on 30 July 1999. 27 I turn first to the applicant's submission that the Tribunal impliedly accepted his claims of assault and torture (see para 19 above). I do not think that it is an accurate assessment to say (as the applicant submitted) that the Tribunal generally indicated which claims it did not accept, rather than making positive findings of fact. 28 It is true that the Tribunal (at p 7 of its reasons) said: "There are a number of aspects of the applicant's story which the Tribunal does not accept and these are detailed below." 29 However, on a fair reading of the reasons, I think that the Tribunal can be seen to have expressly accepted various matters almost as often as expressly or specifically rejecting them. I do not think that it is safe to make the implication which the applicant suggests. I think that the appropriate course is to treat the Tribunal as having accepted what it expressly says it accepted, as having rejected what it expressly said it rejected and as otherwise not having made a finding. 30 There was a separate strand to the applicant's arguments, namely, that the Tribunal's finding that the authorities were not interested in and did not suspect the applicant of being a member of the LTTE, did not resolve the question whether there was persecution for a "Convention reason". The applicant submitted that at most the Tribunal had dealt with imputed political opinion. The Tribunal was also required, so the applicant submitted, to consider whether the applicant had suffered in the past and would suffer in the future from persecution of the nature specified above simply by reason of being a young Tamil male (i.e. on grounds of race). 31 I can dispose of that separate submission fairly briefly. 32 The Tribunal had regard to country information and then made this finding: "The Tribunal does not accept, on the basis of country information, that all young Tamils face a real chance of persecution because they are Tamil or that the applicant faces a real chance of persecution for reasons of his ethnicity." 33 That conclusion was open to the Tribunal on the evidence and clearly shows that it considered both imputed political opinion and race as alternative potential Convention reasons. 34 However, the Tribunal's failure to refer to the allegations of beatings by the prison guards during the November-December 1998 imprisonment and the allegation of torture on or about 31 December 1998 suggests, in my view, that it made at least one reviewable error. 35 If the Tribunal did accept that the applicant had been beaten by the guards and subsequently tortured by a very serious assault, then I think it erred in law by not finding that this constituted persecution in the sense of serious enough harm. But it is not possible to discern from its reasons whether the Tribunal accepted or rejected the applicant's evidence on those extremely important matters. In those circumstances I do not accept the applicant's contention that, by failing to deal with these incidents in its reasoning, the Tribunal has demonstrated a failure to understand and apply the law relating to persecution to the facts as found by it. The predicament in which the Court is thus placed demonstrates how important it is that the Tribunal should clearly set out its findings on material questions of fact. 36 The Tribunal has simply failed expressly to make the findings about these assaults and torture. In my view, these were most material questions of fact. I think that s 430(1)(c) of the Act obliged the Tribunal to set out its findings on those questions - see Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 and the authorities cited with approval in that case. 37 The next question is whether a failure to comply with s 430(1) of the Act constitutes reviewable error. 38 The law on this point is, at the moment, in a somewhat fluid state. Yusuf is a Full Court decision of this Court which stands as authority for the proposition that failure to comply with s 430(1)(c) of the Act gives rise to error of law reviewable, under s 476(1)(a). There is obiter dictum in Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 from Whitlam and Gyles JJ (R D Nicholson J expressly disassociating himself on the basis that it was not necessary to decide the matter for the resolution of the appeal) to the contrary. Burchett J had to deal with this conflict of opinion on 4 February 2000, in Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60. I agree, respectfully, with the views expressed by his Honour at paras 13 to 16 in his reasons for judgment in that case which led him to regard himself as being bound by the decision in Yusuf. On the facts in Yusuf, Burchett J dismissed the application, although, as I have said, his Honour held that a failure to comply with s 430(1) did give rise to reviewable error. On 11 February 2000 the High Court of Australia granted the Minister special leave to appeal in the Yusuf matter. A perusal of the transcript of the hearing of the special leave application shows that this issue is raised squarely in that appeal. On 28 February 2000 a specially-constituted Full Court of five judges of this Court heard an appeal on the same point in the matter of Singh v Minister for Immigration and Multicultural Affairs [Application No N980 of 1999]. The Full Court reserved judgment. In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, McHugh J, sitting in the original jurisdiction of the High Court of Australia, dismissed an application by the prosecutor for a writ of certiorari directed to the Refugee Review Tribunal to quash its decision to refuse to grant him a protection visa. The prosecutor relied upon what was claimed to be a failure on the Tribunal's part to comply with s 430(1). His Honour held, following Re Jarman; Ex parte Cooke (1997) 188 CLR 595 at 604 and R v Cooke; Ex parte Twigg (1980) 147 CLR 15, that the High Court had no jurisdiction to grant certiorari otherwise than as an incident of its accrued or expressly conferred jurisdiction i.e. ancillary to the jurisdiction to issue writs of mandamus or prohibition. Therefore the prosecutor had to demonstrate that the Tribunal had made a jurisdictional error in order to establish entitlement to an injunction, mandamus or prohibition, before he could obtain a writ of certiorari. His Honour further held that even if s 430(1) had not been complied with, that did not give rise to jurisdictional error. Section 430(1) presupposed, so his Honour held, that the decision had already been made. At para 70 his Honour noted that his construction of s 430(1) (i.e. that the subsection imposes requirements to be fulfilled subsequent to the decision having been made) was favoured by a Full Court of this Court in Xu. Accordingly, even if there had been such a breach, there could not be a jurisdictional error grounding prerogative relief. 39 McHugh J did not have to decide whether a failure to comply with s 430(1) might otherwise constitute a ground of review i.e. an error of law not amounting to jurisdictional error. 40 In those circumstances I shall follow the course taken by Burchett J in Montes-Granados and regard the present state of the law as being that a failure to comply with s 430(1) may amount to reviewable error under s 476(1)(a). As I have mentioned above, I consider that there was such a failure to comply with s 430(1)(c) in relation to the most material questions of the beatings in late November/early December 1998 and the torture on 31 December 1998. In the circumstances of this matter I consider that the nature and degree of such failure warrants an order that the decision under review be set aside. It is not necessary to consider what the applicant described as the Tribunal's failure to make findings concerning "slave labour" imposed on the applicant before he left Jaffna. In oral submissions, Mr Christie acknowledged that this was "… perhaps a weaker argument". That might have been because there was no evidence that the applicant was not paid for his services or otherwise compensated by the army.

Conclusions 41 For the above reasons, I will set aside the Tribunal's decision and remit the matter to a differently-constituted tribunal for re-hearing, with or without new evidence, and according to law. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 424A, 430, 476(1)(a)

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