Thirukkumar v Minister for Immigration and Multicultural Affairs

The Tribunal's findings 8 The Tribunal accepted that the first applicant had been displaced from Kandy to Kilinocchi and that she had undergone some training in nursing, including at the Jaffna hospital. It found that she had left Jaffna for Colombo in August 1987, that is before the attack of the IPKF on the Jaffna hospital, which occurred on 21 October 1987. It also found that she had not been detained for fourteen months in 1990 as she claimed, nor had she been detained in 1992 as claimed. It found that she did not have a history of LTTE support such as would attract the interest of the security forces. Finally, the Tribunal accepted that the first applicant may have been detained in 1995, following the explosion at the Kolonnawa oil refinery, until her bona fides could have been established and following intervention by her lawyer. However, it found that this was not persecution and was part of a legitimate security measure. After referring to independent country information, the Tribunal found that the first applicant did not have a well-founded fear of persecution by reason of her ethnicity or her political opinion. 9 Essentially the Tribunal made adverse credibility findings in respect of the first applicant based largely upon inconsistencies in her claims at various stages in the application process. It further found inconsistencies between her claims and those of her husband and other material relied upon. It also found inconsistencies between those claims and the independent country information. Further, the Tribunal expressed concerns about the "timeliness, veracity and probative value" of some of the documentation provided by the applicant. 10 The Tribunal's reasons included the following observations as to inconsistencies in the applicants' case: (a) the first applicant originally claimed that she had left Jaffna in August 1987. However, it was only after the decision of the delegate, in which express reference was made to country information indicating that the IPKF attack on the Jaffna hospital was in October/November 1987, that the first applicant changed her claims about the date of her departure from Jaffna; (b) country information indicated that official alterations to passports in Sri Lanka required the attendance of the passport holder unless they were ill or disabled. The first applicant's passport was altered on 27 October 1995, recording her marriage to the second applicant, at a time when she claimed she was in detention; (c) the description of how the passport was altered had changed a number of times in the course of the application process. First it was claimed the first applicant's husband had taken the passport to the authorities on 27 October 1995; then it was claimed that a travel agent had made illegal alterations in the passport; this was later expanded to a claim that the travel agent had made the changes in order to enable the first applicant to leave the country. Yet the altered name did not remove the first applicant's maiden name but simply added to it. Moreover, the first applicant's photo was not altered and the passport contained her actual signature; (d) it was implausible that the first applicant would leave her husband and travel to the north of the country by herself, in view of the fact that neither she nor her husband is a Jaffna Tamil and their National Identity Cards (NIC) would have so stated and in view of the fact that, contrary to the first applicant's claims, country information indicated that, at the relevant time, it was safer in Colombo than in the north of Sri Lanka; (e) given the first applicant is not a Jaffna Tamil and it would have been so stated in her NIC, and given that her only connection with Jaffna was that she had lived there three years earlier, it was not plausible that she would have been detained in 1990 as she claimed; (f) there was an inconsistency between her protection visa application which stated that she commenced work at the Manner Geriatric Hospital in June 1991, while she had also claimed that she had not been released from detention until December 1991.

The psychologist's report 11 There was before the Tribunal a ten page report from psychologist Christina Curry of The Victorian Foundation for Survivors of Torture Inc. The report is undated but was sent to the Tribunal by fax on 9 March 2000. 12 The report includes a detailed history taken from the first applicant and records depressive symptoms including severe weight loss and suicidal thought, difficulties with disclosure, post traumatic and other anxiety symptoms and physical symptoms including stomach pain, menstrual pain, chest constriction and intense intermittent headaches. The report concludes as follows: " Conclusions Mrs Thirukkumar's present difficulties, particularly her somatic symptoms, avoidance, and psychosexual difficulties, are highly and specifically consistent with her history of trauma. Her eating difficulties can be interpreted as an attempt to regain some control over her life, and as a means of not dealing with her problems. Mrs Thirukkumar is living in the 'here and now', unable to move forward as a result of her undetermined status, and unable to move backwards, as a result of the frightening and terrifying thoughts that she finds difficult to control. I believe that Mrs Thirukkumar's personality and current coping strategies are also consistent with the major life events that she has experienced as traumatic and largely outside her control. She is fearful of making decisions, and has placed her confidence in others, at times to her detriment. She adopts a largely passive, dependent coping style. This coping style, although it can be attributed to other factors, is also consistent with the history of trauma that she has related. The combination of these factors, taken together, is highly consistent with a history of trauma and imprisonment, and provides evidence in support of the substantial nature of Mrs Thirukkumar's claims for protection." 13 The only reference to the Curry report in the Tribunal's reasons comes in the context of discussion of the first detention, alleged to have occurred in 1990-91. The Tribunal says: "Given the above discussion, the Tribunal is not satisfied that the applicant was detained as claimed for 14 months either in Thandikulam or Thalladi. This finding does not dismiss the claim that the applicant has made about being raped twice. The Tribunal simply notes that its finding is related to her claimed detention in Thandikulam and other camps during that period. The Tribunal concludes that the applicant was not raped in detention. There is no other evidence before the Tribunal which would allow it to make a finding that rapes did occur and if so that they occurred for a Convention reason. The reports from medical practitioners and other health professionals represent a reflection of the applicant's own recounting of her story, indeed the applicant may well have been subjected to rape at some point and in some location but given the findings above, the Tribunal is not satisfied that if rapes did occur they are related to a reason under the Refugees Convention." 14 There were some other medical reports before the Tribunal. It is not necessary to refer to them for present purposes. It was common ground that "reports from medical practitioners and other health professionals" includes the Curry report.

Applicant's argument on review 15 Counsel for the applicants submitted that the "critical issue of the consistency between the (first) applicant's account and her symptomatic presentation" was not addressed by the Tribunal. 16 This was said to amount to (i) a failure to "consider" the application: ss 47, 54, 55, 65 and Pt 7 of the Act and in particular ss 414(1) and 415, Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [70] to [72] and [78]; (ii) a failure to consider a relevant matter: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [75], [76], [78], [80] to [82]; (iii) a failure to determine a substantive issue: Paramantham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 64. 17 On that basis it was said the decision of the Tribunal was beyond its jurisdiction (s 476(1)(b)), not authorised by the Act (s 476(1)(c)), and involved an error of law (s 476(1)(e)).

Conclusion on the review 18 Before it could be said that the Tribunal had failed to "consider" the application in the sense contended for, that is to say to an extent that amounting to want of jurisdiction or error of law, this Court would need to be satisfied that "the ostensible determination (was) not a real performance of the duty imposed by law upon the Tribunal": R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242 per Rich, Dixon and McTiernan JJ, Anthonypillai at [75]. 19 But the Curry report was no more than a piece of evidence. Its importance for the Tribunal's fact finding process depended largely on the Tribunal's acceptance of the truthfulness and reliability of the history given to the psychologist by the first applicant. Moreover, while the psychologist's conclusion might have been based on a history of trauma that was at least partly true, it was open to the Tribunal to consider that the psychologist was in no position to say what, if any, of that trauma was of a kind that is relevant for a claim under the Convention. 20 Even if the Tribunal had not referred to the Curry report at all, no reviewable ground would be established. It was not necessary for the Tribunal to give a line-by-line refutation of the evidence for the applicant, either generally or in those respects where there was evidence that was contrary to findings of material fact made by the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [65] - [67]. 21 The extent to which the considerations ground (taking an irrelevant consideration into account or failing to take a relevant consideration into account) has, notwithstanding s 476(3)(d) and (e), been made available by Yusuf has not yet been authoritatively determined. 22 Counsel for the Minister argued that a consideration is not "relevant" for the purposes of the considerations ground unless the decision-maker is bound to take it into account. He cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42. Counsel further submitted that the Migration Act is not the kind of "particular statute" referred to in Yusuf where McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said (at [74]): "This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts." 23 So, counsel argued, for the purposes of Pt 8 review there are no "relevant considerations "at all". 24 I do not accept this argument. The passage in Yusuf appears in the immediate context of a discussion of the considerations ground as a general principle of administrative law. Their Honours had earlier said (at [73]) that: "The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the (Migration) Act rather than the particular facts of the case that the Tribunal is called on to consider." 25 While heavily qualified, this passage at least leaves open the possibility of particular factual issues being "relevant" considerations. This conclusion is strengthened by a latter passage where their Honours say (at [75], citations omitted): "As was pointed out in argument, applicants for protection visas often, but not invariably, claim that they have been subject to persecution. In Minister for Immigration and Ethnic Affairs v Guo, six members of the Court said: 'In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.' If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past). It is not accurate, however, to say that the Tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well-established limits. If it is not intended to have that effect, it is not useful to formulate the duty in that way. Rather, the relevant inquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations." (Emphasis added) 26 Later their Honours say (at [78]) that a complaint that the Tribunal failed to make some relevant finding of fact "will often amount to a complaint of error of law or of failure to take account of relevant considerations". This would be consistent with a view of the Act as not being a statute which, in respect of the grant of a refusal of protection visas, confers an unconfined discretion: Peko-Wallsend at 40. And Gleeson CJ said (at [37]): "As already indicated, if in its written statement setting out its decision, the Tribunal fails to refer to or fails to make findings with respect to a relevant matter, it is to be assumed, consistently with the clear directive in s 430 of the Act, that the Tribunal has not regarded that question as material. And depending on the matter in issue and the context in which it arises, that may or may not disclose reviewable error. For example, the failure to make a finding on a particular matter raised by the applicant may, in some cases, reveal an error of law for the purpose of s 476(1)(e) of the Act." 27 So it can perhaps be said that while Yusuf closes the s 430 door it opens the door of the considerations ground with the consequence that the ambit of Pt 8 review may be wider than previously thought. There must have been several hundred decisions on Pt 8 review since the 1992 amendments removed a number of judicial review grounds, including the considerations ground, which were available on review under the Administrative Decision (Judicial Review) Act 1977 (Cth). In none that I am aware of has the considerations ground been raised, presumably because of the perceived effect of s 476(3)(d) and (e). 28 Moreover, while Yusuf holds (at [69]) that what is or is not a "material" issue for the purposes of s 430 is a matter for the Tribunal, it would seem the conclusion as to what is or is not a "relevant" consideration for the purposes of the considerations ground must be a matter for the Federal Court on Pt 8 review since considerations ground error is an error of law (see [82]). 29 And while "material" may be virtually synonymous with "relevant", "material issue" is a narrower concept than "relevant consideration": Yusuf at [7] per Gleeson CJ. An "issue" in the context of an administrative decision would usually mean a point or question to be decided, something involving dispute, or at least uncertainty. However a consideration, while including an issue, could extend to take one example, to matters which are not in dispute, for example matters such as the age or health of an applicant. 30 But however the matter is approached, it is clear in the present case that the Tribunal asked itself the correct question, that is to say, whether in the light of the history asserted by the first applicant she had a well-founded fear of persecution on grounds of imputed political opinion and race. In the course of answering that question the Tribunal was not obliged to advert to every piece of evidence which might have supported the claims. In any case, the particular evidence in question, the Curry report, was adverted to. The weight, if any, to be attributed to it was entirely within the province of the Tribunal's fact finding function.

Orders 31 The appeal will be dismissed with costs, including reserved costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Solicitor for the Respondent: Blake Dawson Waldron