THE PRESENT APPLICATION FOR REVIEW
28 On the hearing, Mr and Mrs Visvanathan relied on one ground of review: that provided for in s 476(1)(a) read with s 430 of the Act. The ground provided for in para (a) of s 476(1) is, relevantly, that procedures that were required by the Act to be observed in connection with the making of the decision were not observed. The particular procedure required by the Act to be observed on which reliance is placed is that laid down in s 430, namely, that the RRT must prepare a written statement that sets out its reasons for its decision and sets out its findings on any material questions of fact, and refers to the evidence or any other material on which the findings of fact were based.
29 Counsel for Mr and Mrs Visvanathan referred to the making of a particular claim by his clients and submits, in substance, that this claim was not addressed by the RRT, or, if it was, that the RRT's Reasons for Decision did not set out its reasons and findings or refer to the evidence in relation to that claim.
30 I will elaborate. The particular claim was undoubtedly made. In its most explicit form it was expressed as follows in the body of Mr Visvanathan's application for a visa:
"Sri Lankan forces suspects [sic] us as [sic] harbouring, financing and supporting the terrorists."
In less explicit form, the claim that the Sri Lankan forces suspected the Visvanathans of actively supporting the LTTE was made elsewhere. For example, in their joint statement to which I referred earlier, the following passage appears:
" … The Sri Lankan army somehow came to know that we were harbouring the terrorists in our house and we were also financing them."
(In context, "know" should be read as "believe," "suspect" or "think".)
31 Did the RRT address this claim? In its Reasons for Decision, there appears the following passage:
" … even if I accept Mr Roshan Visvanathan's claims at face value, I find the claim that his parents were of interest to the authorities because the authorities were interested in him prior to his departure from Sri Lanka to be far-fetched and implausible and do not believe that they were repeatedly interrogated by the police about their son while they were in Colombo, nor that members of the security forces are looking for them because they are believed to be associated with the LTTE." (emphasis supplied)
Immediately following this passage, the following occurs:
"Mr and Mrs Visvanathan are an elderly couple; Mr Visvanathan is unwell. They are not members or supporters of the LTTE and never have been. They do not claim to have been suspected of LTTE involvement by the army or other Sri Lankan officials in their home area."
32 On its face, the passage which I have emphasised above suggests that the RRT did deal with the very claim in question. The passage is expressed in the present tense ("are looking" and "are believed") and the words, "associated with" are wide enough to include the notion of "harbouring, financing and supporting". No doubt, an expression more explicit than "associated with" could have been chosen showing that the form of "association" being addressed was that of "harbouring, financing and supporting", but I do not think that this alone indicates that there has been a failure to comply with s 430 of the Act.
33 Counsel for the Visvanathans, in his helpful submissions, says that the passage referred to did not address the claim about what had happened after his clients had left Sri Lanka, but I think that the use of the present tense indicates otherwise. He points out that the passage appears at the end of a larger passage that explains why the RRT did not accept that the Visvanathans had been harassed because of "the Roshan incident". He submits that given this context, it was that claim rather than the one of "harbouring, financing and supporting" which the RRT had in mind. I do not think that the context, fairly read, does limit the passage in the way suggested by counsel. It is true that the RRT, in much that preceded the passage in question, deals with the Roshan incident. But I do not think that this detracts from the words, "nor that members of the security forces are looking for them because they are believed to be associated with the LTTE". Indeed, the opening word "nor" suggests that the RRT is embarking on a subject different from that which precedes.
34 Counsel for Mr and Mrs Visvanathan also submits as follows:
"… a belief by the authorities that the [a]pplicants had harboured or financially supported the LTTE had the potential to lead to far greater harm to the [a]pplicants than what they claimed had happened to them in the past. Yet the Tribunal did not address what the [a]pplicants claimed they were suspected of having done."
35 This submission refers to the claim that Mr and Mrs Visvanathan were suspected of having harboured terrorists in their house at Manipay and of financing them, and, in particular, that the house had been used to store grenades. The RRT's account of Mrs Visvanathan's evidence in this last respect is as follows:
"The LTTE had stored grenades in their house and had come later and taken them away. She said that when the army came the LTTE would hide and throw grenades at them."
36 It is difficult to know what to make of this passage (there is no reason to doubt that it is a faithful reflection of the evidence). The first sentence suggests that the storing of grenades had ceased and was a "spent event" before the Visvanathans returned to Manipay in April 1996. According to this view, the second sentence could also be an account of what had happened in the past, that is, before, rather than after, the return of the Visvanathans to Manipay. Another construction is that Mrs Visvanathan's evidence of the throwing of grenades is not of a throwing of grenades from the Visvanathans' house at all but a generalised account of an LTTE activity which took place in the Manipay area. Of course, a third construction is that at the time when the Visvanathans were living in the shed, the LTTE were throwing the grenades from the house on their property and that it was only later that the LTTE took the grenades away.
37 It is true that the RRT does not explore this particular form of "suspected harbouring" in the decisive part of its reasoning. I do not think, however, that the absence of any discussion of this evidence constitutes a failure to observe the requirement of s 430. Counsel for the Visvanathans relies upon the Full Court judgment in Logenthiran v Minister for Immigration and Multicultural Affairs (Wilcox, Lindgren & Merkel JJ, 21 December 1998, unreported). In that case, however, the Full Court was dealing with egregious events (arrests and beatings) which had befallen the applicant on two occasions shortly before he left Sri Lanka, to which the RRT had referred in the "Claims and Evidence" section of its Reasons for Decision but not at all in the "Findings and Reasons" section. The relevant present evidence is of a much less direct and striking kind. It is not simply of the use of the house made by the LTTE. In substance, it is that friends and relatives understand that the Sri Lankan Army believes that Mr and Mrs Visvanathan were harbouring the LTTE in their house and will prosecute them for that reason. I do not think that in these circumstances the RRT's omission to address "the grenade evidence" in the reasoning section of its Reasons for Decision is in the same category as its omission in Logenthiran.
38 Counsel for the Minister refers to Mrs Visvanathan's evidence which the RRT recounted as follows:
"I asked whether she thought she would have problems with the army in the Jaffna area. She said that she did not believe she would have any problems with the army unless something emerged relating to the incident in Colombo."
39 This is strong evidence against the proposition that Mrs Visvanathan feared retaliation from the Army in the Jaffna area, including Manipay, arising out of the LTTE's having stored grenades in, and thrown grenades from, the Visvanathans' house.
40 I think that the criticisms levelled at the Reasons for Decision in the present case are, with respect, of the kind referred to in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 291 and Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 (FC) at 414 (Sackville J). The terms in which the RRT has expressed its Reasons for Decision are not to be over zealously scrutinised in pursuit of error (Wu)and the RRT is not required to produce reasons dealing with every matter raised before it and it is sufficient that it deal with the substantial issues (Muralidharan).
41 In the result, I do not think that the failure to comply with s 476(1)(a) is made out.
42 Before parting with this case, I think it appropriate to note that of the six living children of Mr and Mrs Visvanathan, four are in Australia and two are in Germany. Accordingly, they have no children remaining in Sri Lanka. The Visvanathans are an elderly couple. According to the application for the visa, Mr Visvananthan was born on 14 October 1931 and is therefore sixty-eight years old, while Mrs Visvananthan was born on 19 July 1933 and is therefore sixty-six years old. Mr Visvananthan, according to a medical report which was apparently relied on before the RRT to explain why he could not give evidence before it, is unwell, having had several hospitalisations, and "is quite disabled and breathless at rest." The report dated 28 January 1999 of Dr John C. Beattie, Consultant Physician in General Medicine, said of Mr Visvananthan:
"He has chronic airflow limitation and has on a number of occasions been extremely unwell due to infection and been close to not surviving."
43 The claim of Mr and Mrs Visvananthan, on a humanitarian basis, to be able to see out their remaining years in Australia with four of their six children seems to be a strong one.
44 It is not, of course, the Court's role to make recommendations and if there is another category of visa appropriate in the particular circumstances in which Mr and Mrs Visvanathan now find themselves, no doubt advantage can be taken of it. But if, for some reason, this is not the case, perhaps the Minister could consider whether the case is an appropriate one in which his discretion under s 417(1) of the Act might be exercised in their favour.