Thevendram v Minister for Immigration & Multicultural Affairs

The Tribunal's decision 13 In this account of the Tribunal's decision I shall identify by bold type the findings which formed the subject of the applicant's case in this Court. They correspond to particulars (a) to (g) under ground 1 of the further amended application. 14 The Tribunal accepted that the applicant was caught up in communal rioting in 1983 and that he had had quite a harrowing time then and in 1984 at the hands of the security forces. His ordeal ceased soon afterwards; his adverse treatment was short-lived and occurred at a time of serious rioting and after the death by ambush of several soldiers. He was freed from suspicion of any involvement in those deaths. Since then there has been a significant change in his circumstances. He relocated to Colombo and established a business there. 15 The Tribunal found that the adverse treatment of the applicant some 15 years ago did not signal a real chance of persecution of him now or in the foreseeable future for any Convention reason. The Tribunal accepted that the applicant practised as a lawyer in Jaffna from 1980 and that he was involved in work with the Rural Courts. It noted that he destroyed all documentation relating to those courts in 1987. The Tribunal accepted that his house was damaged on more than one occasion in general fighting and that he fled the area with his family in late 1987. 16 The Tribunal then said: "In relation to the questioning of the applicant after his return home in 1988 and his alleged detention, variously described as being for two or three days, the Tribunal notes that the applicant was, in any case, released with the support of prominent citizens. No reason was given for the applicant's detention. He informed the IPKF, whose presence has long since ceased in the area, that he had no dealings with militants. [a] Even if the applicant was detained as he has claimed, the fact that he was released, even if on monthly reporting conditions at that time, indicates he satisfied the authorities at least that he was not a serious threat to security. The Tribunal finds that given significant changes in the applicant's personal circumstances; the length of time since the IPKF was involved on the Jaffna Peninsula; the release of the applicant after no more than three days; and the prominent support he received from others in the area, any questioning and detention of the applicant in 1988 does not indicate a real chance of persecution of him now or in the foreseeable future for any Convention reason. In his statement of 23 September 1996 the applicant said that members of the EPRLF threatened his wife and children with death the day after he fled upon learning of the death of a former colleague from the Rural Court. At the hearing before this Tribunal he said that the threat to his family occurred a month after he fled. In his aforementioned statement he said that the threat from the EPRLF in 1988 related to 'LTTE sympathisers and supporters'. The Tribunal finds [b] it inconceivable that the applicant would abandon his family to their fate when there was a perceived risk of death to him and, therefore, to them as immediate family members of someone regarded as a strong supporter of the LTTE by reason, at least, of his former public role. Considering that improbability and the discrepancy in the applicant's evidence as to when his family was threatened, the Tribunal finds that the story of threats to the applicant and his family from the EPRL is a concoction designed to embellish a claim to refugee status. In reaching that finding the Tribunal also gives weight to the fact that the applicant made no arrangements for his family to leave the Jaffna area until some 10 months after he was ensconced in Colombo, notwithstanding his claim that his family moved away from the family home and his assertion in the aforementioned statement that the entire family was threatened with death if he did not return from Colombo when it was somehow discovered he had relocated there. The Tribunal also notes that [c] no harm ever befell the applicant's wife or children. He has since relocated to Colombo. In considering all the circumstances of this case it finds that the demise of someone else connected with the Rural Court, or others such as rural traders to whom the applicant has occasionally referred, does not indicate a real chance of persecution of the applicant himself." 17 The Tribunal accepted that the applicant later returned to Jaffna and that he had an involvement of a few months with NEDRO. 18 The Tribunal referred to the applicant settling in Colombo in 1991 and establishing a legal practice and owning a house. The Tribunal noted that it was in relation to living in Colombo that it had to assess whether the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal then said: "In relation to the applicant's claim that he was detained in August 1996 due to suspicion of involvement with the LTTE, the Tribunal makes the following observations. The applicant had resided in Colombo for five and a half years. He functioned there openly and had no problems with the authorities during the intervening period. He did not have any connection with the LTTE after 1987, and even before then his connection was indirect. He was not apprehended by the authorities while in the north due to any perceived connection with the LTTE. He claims that he came to the attention of the authorities after the security forces swept through his area. During the course of his application for a protection visa he has provided discrepant evidence as to when that sweep occurred, alternatively claiming that it occurred in December 1995 and in mid-1996. In fact a sweep by the army on the Jaffna Peninsula took place in mid-1995 (see, for example, Inform, July 1995). No action was taken against the applicant after the initial sweep. Indeed, he was able to travel on his own passport to India in May 1996 and to Canada in June 1996. Even on his return from overseas in August 1996 he was not arrested despite his claim that the authorities, at least by then, had information linking him to the LTTE. The applicant has given evidence that he destroyed all documentation in relation to his civil employment in a former administration under the auspices of the LTTE. Any such involvement would have given the applicant some kind of public profile that some of his evidence indicates was known to the IPKF and the EPRLF. It was at least open to those organizations to learn of the applicant's role if it was of any interest. [d] The authorities were not reliant on information provided as late as April 1996 following a sweep of the applicant's former location in the north of Sri Lanka as to his participation in public affairs in that area. It is apparent that a public role the applicant undertook with the Rural Court or in other public affairs would have been widely known well before any sweep of his area, yet no action had been taken against him. The applicant was never charged with any offence. When interviewed by a Departmental officer the applicant, a lawyer, was unable to name the Act according to which he was arrested. The Tribunal does not accept that the applicant omitted in the initial stages of his application a claim that he was released on reporting conditions because it would have made his statement overly long. He is [sic] a lawyer would have well understood the nature of his application and the importance of making all relevant claims in a timely way. The Tribunal rejects his claim that he signed a document in Sinhala that he thinks refers to reporting conditions. In view of the seriousness of any charges under the Prevention of Terrorism Act [e] the Tribunal does not find it credible that the applicant would have been released from custody by the payment of a bribe if he had been of any interest to the authorities." 19 The Tribunal observed that the applicant was able to depart Sri Lanka legally the month after his alleged arrest. He left on his own passport, with a visa granted on the basis that he was attending a legal conference. He passed through all security checks at the airport. Although the applicant might have left Sri Lanka in the company of high profile lawyers, the Tribunal did not find it credible that their presence would have enabled his exit if he had been suspected of complicity with terrorism, such that he would have been of official interest under the Prevention of Terrorism Act. 20 The Tribunal then went on to consider various letters tendered from legal organisations in Sri Lanka. These were not the subject of any submissions in the present application for review, although some other correspondence was. That other correspondence consisted of letters from the applicant's wife of 15 December 1996 and 9 April 1997 alleging that the authorities had visited since the applicant's departure, damaged the property and asked questions about any association of the applicant and his sons with the LTTE. 21 The Tribunal informed the applicant it would need to consider whether such letters were contrived. Following the hearing the applicant submitted a letter of 9 February 1999 from his mother, making an identical allegation about inquiries by the authorities, and a letter of 15 February 1999 from his wife, relaying the same news and making some other general comments. 22 The applicant also claimed he had received many other similar letters from home but had destroyed them due to the distress they had caused him. The Tribunal then said: "The applicant is a lawyer who understands the importance of keeping relevant and significant information. He retained some letters purportedly sent from home and his explanation that he has destroyed others of a similar nature to avoid pain defies credulity. There is no reference to the existence of the last two letters or of other correspondence in the submission of 12 May 1999 from the applicant's then adviser, even though they predate that submission by some three months. It was open to the applicant to at least allude to the existence of that correspondence in a timely way even if translations could not be afforded then. The applicant left Sri Lanka legally in mid-1996. [f] Any prospect that the authorities would, in the circumstances of this case, be searching for him for a Convention reason due to any perceived political role or perceived human rights activity several years after his abandonment of his role in Jaffna and some three years after his legal departure from Sri Lanka is not credible, and the Tribunal finds accordingly." 23 The Tribunal then went on to find that in view of the last mentioned considerations, the letters were contrived and self‑serving. 24 In assessing all of the information before it and for the reasons outlined above the Tribunal found that the applicant was not detained in 1996. It found he was not of any official interest and his coming to Australia was consistent with the information provided in relation to his visa application, namely to attend a conference. It found that he had since fabricated claims to refugee status. The Tribunal was not satisfied that the applicant's wife or other family members had been asked about the applicant since his departure from Sri Lanka or that the family home had been searched for any Convention reason. It was not satisfied that the applicant's wife or other family members had encountered any harassment by reason of the applicant's actual or perceived profile or that the applicant himself faced a real chance of persecution if he returned to Colombo. 25 In conclusion, the Tribunal found that the applicant did not have a well-founded fear of persecution for any Convention reason.

Contentions on review application 26 The first ground relied on was failure to observe procedures required by the Migration Act 1958 (Cth)or the regulations and in particular a breach of s 430(1)(c) and (d) of the Act in failing properly or at all to set out the findings on material questions of fact or to refer to the evidence on which those findings were based. As I indicated to counsel in the course of argument, I take the view that at the moment a single judge of this Court is bound by the decision in Yusuf v Minister for Immigration and Multicultural Affairs [1999] FCA 1681 and that such an argument is open as a matter of law. 27 I turn then to the particulars that have already been identified in these reasons. Particulars (a) to (f) are said to be findings of material fact in respect of which the Tribunal failed to refer to evidence. In the course of argument, counsel was granted leave to add a further particular which was said to be of a failure to make a finding as to a material fact: "(g) Having found the applicant did not leave Sri Lanka by reason of fear of persecution, the Tribunal made no finding as to the motive for the applicant's departure." 28 Particular (a) in my opinion is not a finding of fact at all, still less a material finding of fact. It is but an observation or comment, which the Tribunal is making as part of its assessment and evaluation of the evidence. As to (b) my conclusion is the same. As part of its fact‑finding function, the Tribunal was entitled to test the plausibility of the applicant's accounts by reference to its understanding of human nature and how people react in particular situations; whether the comment that the Tribunal made was one which would appeal to a judge is beside the point. The Tribunal was not obliged to refer to any evidence or other material upon which this comment was based. Indeed, it is in the nature of such a comment that it is not "based" on particular evidence or material, but rather is the Tribunal's own view of the inherent probabilities or otherwise of the applicant's account. 29 As to (c), counsel did not really press this point, other than to observe that if there were threats, there must have been some harm. Obviously this is a question of fact. Counsel for the applicant fairly conceded that the criticisms that I have dealt with up until now concerning events in the 1980s were less important than what follows in that part of the reasons which deals with the critical incident of the applicant's alleged detention in August 1996. 30 As to (d), I do not think that this is a material finding of fact. It is part of a general theme in the Tribunal's reasoning which was in essence that the longer the applicant lived in Colombo without interference by the authorities, the less likely they were to have damaging information implicating him with LTTE‑sponsored activities in the 1980s and, accordingly, the less likely would be his alleged detention in August 1996. In that context, the passage that is criticised is merely making the point that up to and including April 1996 there had been no knowledge received by the authorities to provoke them into any action against the applicant. 31 As to (e), it was said that there was no reference to any evidence as to the practice of payment of bribes in Sri Lanka. Again, this passage is not a finding of material fact at all, it is simply an observation, which may or may not be valid, that the release on payment of a bribe becomes the less likely the more serious the offence, for the simple reason that the receiver of the bribe is the more likely to be laying himself open to the attention of authorities. 32 As to (f), this is again a comment. 33 As to (g), it is no function of the Tribunal to make findings as to Convention-unrelated reasons for the applicant's departure. It is not difficult to speculate as to why somebody, particularly a lawyer, might want to leave Sri Lanka and live in Australia, but that is not the point. The Tribunal was charged with a function of reaching satisfaction or otherwise as to whether the applicant had a well-founded fear of persecution in Sri Lanka for reasons of his imputed political opinion. 34 Grounds 2 and 3 allege respectively that the Tribunal did not have jurisdiction to make the decision and that the decision was not authorised by the Act or the regulations made under the Act. Particulars under those grounds repeated the particulars under ground 1. Counsel said that these did not add anything to what already had been put and were really a fall‑back position in the event that the forthcoming decision in Singh's case overruled Yusuf, so I say no more about them. 35 Ground 4 was not relied on. Ground 5 was that the decision involved an error of law, being an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal: s 476(1)(e). The first particular of that ground was that the Tribunal did not correctly apply or interpret the element of "well‑founded fear" in the definition of refugee as required by s 36(2). Counsel said that the rejection without reference to evidence of the applicant's claim, especially in relation to the August 1996 detention, shows that it would not have accepted his case unless he had shown more than a "real chance". This inference was said to follow from the way it dealt with his central claim. 36 I do not accept this argument. In earlier passages of its reasons, the Tribunal set out the relevant High Court and Full Federal Court authorities which deal with the Refugee Convention. What the Tribunal did was to review the evidence proffered by the applicant in support of this claim and particularly in relation to the alleged detention in 1996. It rejected that central part of his claim and gave rational reasons for doing so. This was within the fact‑finding function with which it was entrusted. 37 The second particular relied on was that the Tribunal failed to ask, "What if I am wrong?" concerning its findings of fact, including the findings of fact set out in the particulars subjoined to ground 1 of the further amended application. 38 In my opinion, as I have explained in S v Minister for Immigration and Multicultural Affairs [2000] FCA 735, the supposed "What if I am wrong?" test plays no part in the decision‑making process with which the Tribunal is charged: see Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719. 39 The third particular under this ground alleged the failure to determine the material question of fact as to the motive for the applicant's departure; the same matter thus was particular (g) under ground 1. For the same reasons, I reject this argument. 40 It was then said that there was no evidence or other material to justify the making of the decision: s 476(1)(g). Counsel argued that failure to comply with s 430(1)(d) by referring to the evidence or material on which finding of facts were based led to the conclusion that there was no evidence to support such findings. For the reasons already mentioned, I am satisfied there was no failure to comply with that requirement. In any case, I respectfully agree with Kiefel J's observation in Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415 at par 21, to the effect that s 476(4)(a) refers to statutory preconditions, not the ultimate conclusion which the statutory criterion for a visa requires. 41 Finally, counsel contended there was actual bias: s 476(1)(f). He referred to a number of findings or observations which disclosed a "pattern of oddity". These were sufficient to show that the Tribunal fell short of its obligation of impartiality. 42 He relied on what was said in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127, where Burchett J said: "In my opinion, the statute, when it uses Devlin LJ's expression "actual bias", [in R v Barnsley Licensing Justices [1960] 2 QB 167 at 187] substituted a test that looks to whether the Tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially." (emphasis in original) 43 The facts of Sun were complex and (one would hope at any rate) very unusual. Prior to the actual hearing which resulted in the Tribunal's decision there were extensive enquiries conducted by or at the direction of the Tribunal member. The details are set out in the judgment of Wilcox J at 83-89. Counsel for the appellant contended that the Tribunal member was not interested in eliciting information in support of the appellant's case; she was biased against him and interested only in facts that might discredit him and his story. After a detailed analysis of the evidence the Full Court accepted this argument. It also found that the Tribunal in its reasons had, in the words of Burchett J (at 127), drawn "extremely adverse conclusions against the appellant on what, upon examination, turn out to be the flimsiest grounds." 44 Two members of the Court (Wilcox J and Burchett J) held that there had been a breach of s 420(2)(b) by the Tribunal failing to "act accordingly to substantial justice and the merits of the case". The decision was given before the reversal by the High Court of Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300. Burchett J and North J also held the decision should be set aside on the ground of actual bias. North J said (at 135-136): "Once it is appreciated that actual bias may exist, even if unintended, any special reticence in pursuing such a case should be diminished. I think such reticence has existed in the past, partly because of the failure to understand the true nature of the allegation. For instance, Coles JA in Ramadan v NSW Insurance Ministerial Corporation (unreported, Court of Appeal, NSW, 7 April 1995) said: 'An allegation of actual bias requires an appellate court if it is to uphold the allegation, to make a finding that the trial judge was, in truth, biased against or prejudiced in the sense of having prejudged against the appellant. It involves a finding of judicial impropriety, and probably of judicial misconduct. It involves a finding of breach of the judicial oath.' Certainly, in the case of unintended prejudgment, this view goes too far. If a court finds that a judge or other judicial officer has made a decision affected by actual bias, then the judge or judicial officer has made an error in the same way that other appellable errors are made. There is no more impropriety, misconduct, or breach of judicial oath in making such an error than in making other errors found on appeal. Unintended actual bias is no special category of error. Thus, when there are grounds for alleging that a decision, reviewable under s 476 of the Migration Act, was affected by actual bias, applicants and their advisers should not feel restricted by the nature of the complaint from pursuing that ground." 45 While accepting that actual bias can exist without conscious intent or awareness of the decision-maker, I would otherwise respectfully disagree with his Honour's observations. Actual bias is a serious and damaging finding. In its context in s 476(1)(f) the expression gains colour from its association with fraud, and from Parliament's clear view that it is something more than even extreme unreasonableness: s 476(2)(b). 46 Other members of the Full Court in Sun treated actual bias as a serious allegation. Wilcox J pointed out (at 123) that such a finding should not be made lightly and that cogent evidence was needed, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 361. Burchett J said (at 122) that "… a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach." 47 In Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 at 289 Finkelstein J spoke of an allegation of actual bias as being "much more serious" than one of presumed or constructive bias. 48 In the present case there were no preliminary investigations of the kind undertaken in Sun. Nor was any complaint made about the conduct of the hearing. All that is left is the contention that the findings and decision are so unreasonable that they are only explicable by actual bias. The problem with such an argument is that even if a court finds unreasonableness so extreme that no reasonable decision-maker could make the decision, other explanations will usually be open. The decision-maker may be incompetent (see the observation of Wilcox J in Sun at 124), lazy, overworked or just plain stupid. Since Parliament in 1992 expressly removed Wednesbury unreasonableness as a ground of review (s 476(2)(b)), it would not be right to revive it under the guise of actual bias. In Addai v Minister for Immigration and Multicultural Affairs [1999] FCA 1702 at par 17 a Full Court said that the primary judge "… was perfectly justified in taking the view that an applicant who claims bias demonstrated only from the reasons of a tribunal has a very difficult task." See also the Full Court's observations at pars 18 and 19. 49 The matters which were said to show actual bias were the rejection by the Tribunal of the applicant's claims (a) to have omitted certain matters from his initial statement because it would have made his statement overly long, (b) to have been released from custody by the payment of a bribe if he had been of any interest to the authorities, (c) to have destroyed some letters from home to avoid pain and (d) concerning the time of submission of some letters and the genuineness of those letters. Some of these matters, for example the bribe, I have already dealt with. As to the others it is sufficient to say that they were, in the overall context of the case, no more than relatively minor factual observations, which the Tribunal was quite entitled to make. They were made at the conclusion of the Tribunal's task, that is to say at the time when it was obliged to give reasons for its decision. They fall far short of demonstrating the kind of attitude which the authorities show is needed before a decision could be set aside on the ground of actual bias. 50 The application will be dismissed. There will be an order that the applicant pay the respondent's costs, including reserved costs.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Solicitor for the Respondent: Australian Government Solicitor