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[1996] FCA 697
Federal Court of Australia
1996-06-24
North J
Original judgment source is linked above.
The applicant's case before the Tribunal was that he was associated with the JVP which is the Janatha Vimukthi Peramuna, a Marxist oriented pro-Singhalese party opposed to the then Government. He claimed that he had donated money to the JVP, provided publicity material for it, and had been forced into co-operating with some of its activities in Sri Lanka. At the forefront of his case, he claimed to have participated in the murder of a well-known Sri Lankan TV personality, Mr Premakirthi de Alwis. He claimed that, shortly after the murder of Mr de Alwis, a suspect of the murder with whom he had acted had been detained, and he feared that the Security Forces were made aware of his involvement in the murder by that suspect. He claimed that, consequently, he and his wife went into hiding to escape from the scrutiny of the Security Forces. He claimed that the Security Forces pursued his relatives and, at one stage, detained his brother in law as part of the search for him. He further claimed that in order to escape from this harassment he paid a large amount to procure a passport out of Sri Lanka. At some later time, he alleged that another brother in law had been assassinated by reason of his association with the applicant. The applicant's case involved the proposition that he had a well-founded fear of the JVP by reason of the fact that it would see him as having, in effect, deserted their cause by escaping from Sri Lanka. He claimed that the JVP retained an influence in Sri Lanka and would be a dangerous threat to him if he returned. At the same time, the applicant claimed that he feared persecution from the Security Forces loyal to the Government in that they would seek him out in order to punish him for his involvement in the murder of Mr de Alwis.
The Tribunal recited the evidence which was before it and carefully analysed all of the evidence. It made damning conclusions in respect of the applicant. It found that, on every material fact relevant to the application, the applicant and his wife were not credible witnesses. It concluded that the applicant had not had an involvement in the murder as he claimed, and was not satisfied that the applicant's brother in law had been assassinated at all. By way of example, I refer to three passages from the decision of the Tribunal. Early in its decision it said: "The Tribunal found neither the Applicant nor his wife to give credible evidence on the facts that are material to the Applicant's claims." About half way through its analysis of the facts it said: "The Tribunal does not accept that the Applicant stored the arms that were allegedly used in the killing of de Alwis. This claim is integral to the claim regarding the killing of de Alwis and flows from that claim, which the Tribunal finds is fabricated. Nor is it accepted he performed other roles for the JVP or that he was in hiding from August 1989 until he left." And then at the end of the analysis of facts the Tribunal said: "In considering the claims of the Applicant and the evidence before it, the Tribunal finds that neither the Applicant nor his wife were witnesses who could be believed in relation to material questions of fact and that the Applicant's claims were concocted. The Tribunal concludes that the Applicant was not a refugee when he left Sri Lanka and that there has not been a change in his circumstances or the situation in Sri Lanka that would lead to a conclusion that he has become a refugee sur place." GROUNDS OF REVIEW The review relied on a number of grounds. One ground relied upon s.39B of the Judiciary Act 1903. As a result of the passing of s.39 of the Migration Reform Act 1992 and s.485 of the Migration Act 1958, the applicant is restricted to the grounds of review contained in Part 8 of the Migration Act 1958: see Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693, and a number of cases which have followed that decision. In my view, the ground which relies upon s.39B of the Judiciary Act 1903 is not open to the applicant in this case because the application for review of the decision of the Refugee Review Tribunal and, indeed, the decision of the Tribunal itself, both occurred after 1 September 1994, which was the date of commencement of s.39 of the Migration Reform Act 1992. I turn now to the grounds of review brought under Part 8 of the Migration Act 1958. Actual bias The central criticism of the Tribunal was brought under s.476(1)(f) of the Migration Act 1958 which provides that an application may be made for review by the Federal Court of a judicially reviewable decision on the ground "that the decision was induced or affected by fraud or by actual bias". The applicant contended that the decision of the Tribunal in this case was affected by actual bias. This involves demonstrating that the Tribunal did not, in fact, bring an unbiased mind to the issues before it. It means that the applicant must show that the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case.
In order to satisfy this very demanding test, the applicant identified four occasions during the hearing before the Tribunal, which the applicant claimed showed actual bias on the part of the Tribunal. The first occasion is recorded at page 19 of the transcript. The issue being discussed was the reference in the applicant's application to the fact that he claimed to have been working until 1990. This entry in the application appeared to contradict the case the applicant put to the Tribunal that he went into hiding immediately after the murder of de Alwis at the end of July 1989. The Tribunal posed the question thus: "If somebody went into hiding in August why on your application form do you say you were working until 1990?" The applicant responded through an interpreter as follows: "Yes, I can say that I went into hiding. In the application I wanted to show that as normal I was working, had to run my normal life." The Tribunal responded: "Yes, well, I probably won't accept that. Look, you've had the advantage of Mr Ravindran's [sic] advice and you've submitted this a long time after you arrived in Australia and it's not as if you - you didn't have the opportunity to contemplate why - what you were doing. It just looks to me like you're probably -" and then the comment tapered off. Following the Tribunal's response to the applicant's explanation, the solicitor for the applicant intervened to explain that the application form was filled in by the solicitor and that it might not be fair to visit all the consequences on the applicant. It is noteworthy that the Tribunal used the word "probably" in response to the explanation given by the applicant. The use of that word demonstrates that the Tribunal was expressing a tentative view; it was expressing an immediate reaction which would give the applicant a chance to respond to the impression which the Tribunal had then formed. Taken on its own, it seems to me that the Tribunal's response falls a long way short of establishing that it had a closed mind. Indeed, the Tribunal then listened to the solicitor's response and, shortly afterwards, again asked the applicant the question: "Why do you say you were employed until 1990 on your application form?" And the response was: "I had nothing else to say. I couldn't say that I was in hiding." The matter was then further debated with the applicant. Indeed, the debate continued for over one page more of transcript. The second occasion which is said by Mr Burns, who appeared as counsel on behalf of the applicant, to demonstrate actual bias occurred at page 23 of the transcript. In this passage, the Tribunal was concerned with ascertaining the date upon which the applicant went into hiding. Before the Tribunal, the applicant contended that he went into hiding shortly after 31 July 1989 when Mr de Alwis was murdered. In a statutory declaration dated 9 May 1994, the applicant had referred to his going into hiding at a time when two chiefs of the JVP were assassinated. The Tribunal ascertained from the applicant that the date of those assassinations was in 1990. The Tribunal was therefore seized of an apparent contradiction between the statutory declaration which indicated that the applicant went into hiding in 1990, and his case before the Tribunal in which he claimed to have gone into hiding shortly after 31 July 1989. The Tribunal on page 23 said about the two contentions: "It is a bit of a contradiction." - to which the solicitor for the applicant responded in the following words, partly recorded in transcript: "No, it's - I mean, it's ...(indistinct)... and the language will work ...(indistinct)... but that he continued his threat even after that. It was not possible and he continued to be in hiding. Maybe ...(indistinct)... we would have him back but not ...(indistinct)... [sic]" The Tribunal responded to the solicitor's comments as follows: "We probably won't accept that, Mr Ravindran [sic]. Well, I will not swallow that ...(indistinct)... [sic] Tell me, when you first went into hiding where did you go first?" It was suggested to the Court from the bar table that Mr Raveendran was saying to the Tribunal that the statutory declaration and the case put before the Tribunal were reconcilable. That is to say, that the applicant went into hiding in July 1989 and stayed in hiding until 1990 and that the two contentions were thus not contradictory. Again, I observe that the Tribunal responded by saying that it would probably not accept that attempted reconciliation. It is noteworthy that the response is made not to the applicant but to his solicitor and, again, the intervention of the Tribunal was followed by a substantial discussion with the applicant in relation to the date on which the applicant went into hiding.
I find that this intervention was no more than an indication by the Tribunal of a tentative response to the apparent contradiction between the earlier statutory declaration and the case being put before the Tribunal. Far from being evidence of bias, it seems to me to have been a perfectly proper way for the Tribunal to ensure that the issues concerning it were properly ventilated. The third occasion about which criticism is made flows from an interchange recorded on pages 26 and 27 of the transcript. The subject here being dealt with was the alleged death by assassination of the applicant's brother-in-law. The applicant had produced a death certificate from Sri Lanka unsigned by any doctor and with the word "assassinated" given as the cause of death, the certificate being dated two days after the date of death. In those circumstances, the following exchange occurred. The applicant handed the death certificate to the Tribunal. The Tribunal then said: "Certificates of death give you the physical causes of death. You know, they tell you things like maybe you had a heart attack. Like, in your father's case he was asthmatic, but I have never seen a death certificate give a verdict, assassinated." The applicant replied through an interpreter: "If somebody has been assassinated in Sri Lanka they give the death certificate to say that he has been assassinated." The Tribunal replied: "I have not seen it on Sri Lankan certificates of death before. It makes me think this one is a fake." The applicant through an interpreter replied: "It is a genuine one and I have got a copy of the original." The Tribunal then replied: "It may be on a genuine piece of paper, but I haven't seen any death certificate that has ever said the reason for death is assassinated. Usually they would tell you gunshot wounds or a severed artery or they give you the physical symptoms. They wouldn't tell you a reason like assassination. That is more the job of a coroner, not somebody who is reporting a death two days after it happened." The applicant replied through an interpreter: "This is not a fake. It is a genuine certificate. No one would like to say that one of your own brother, or whoever, was killed like this. That's what I say; he was killed because I was not there, and this is the certificate issued for that death." And the Tribunal said: "Yes, and I am suggesting this certificate might be a fake." Now, again, it is said that by suggesting that the death certificate was a fake on two occasions in that passage, the Tribunal indicated an actual bias. Remembering that actual bias involves the state of mind which prevents any persuasion to a view different to the one then held by the decision maker, it seems to me that this exchange again falls short of demonstrating actual bias. In both the passages referred to, the Tribunal expressed its doubts about the veracity of the certificate. On both occasions, the terminology used was not the terminology of final determination, but of exploratory argumentation: "It makes me think this one is a fake", not even, "I think this one is a fake", which may itself have been perfectly acceptable in any event. On the second occasion the terminology was: "I am suggesting this certificate might be a fake". Not: "I have formed a view (from which I cannot be shifted) that it is a fake". In my view, the Tribunal again fairly raised its doubts before the applicant, thereby according the applicant a chance to dispel those doubts if he could. The fourth and final occasion upon which the applicant relies is recorded at page 32. This passage deals with some letters from family members of the applicant in Sri Lanka, or from friends of the applicant, which generally supported his case. The Tribunal said in relation to a number of the letters from Sri Lanka: "It seems to me you have got a whole lot of letters from Sri Lanka that are basically very self serving. They look like they're all contrived to make your claim look good." The applicant responded through an interpreter: "In all his letters it is mentioned about the situation - about the condition of the country - the state the country is in - and in those letters it was mentioned that they were happy. I left the country." The Tribunal said: "The priest said: 'I know you are innocent and you have nothing to do with the murder but unfortunately you have become their victim.'" The applicant replied: "Yes, that's right."
Then the Tribunal said: "They are all a similar pattern like that; very self-serving, as if you've told them what to write." And that prompted the applicant to reply: "There was no necessity for me to get people to write to me like that. This priest is a family friend of ours since my childhood." Again, the Tribunal made an observation about the letters which it needed to raise with the applicant in order that the applicant could put his case. Again, the language is not language of final determination. The Tribunal effectively said, "It seems to me they look like they're all contrived", not "(you can't persuade me from my view that) these are contrived letters". The language used, the subject matter of the interchange, and the fact that, in each case, the reference by the Tribunal was followed by some further argument about the issue and further evidence and submissions by the applicant tells conclusively, in my view, against the four incidents, or any of them, amounting to evidence of actual bias. A number of factors confirm this view. No objection alleging bias was made to the Tribunal at the time of the hearing despite the fact that the applicant was represented by a solicitor. On the contrary, at pages 48-49, the Tribunal specifically sought assistance from the solicitor for the applicant in relation to its doubt about the evidence of the applicant and his wife and the following exchange occurred. Mr Raveendran, the solicitor for the applicant, said in relation to the likely length of submissions: "No, it all depends on what - you have only indicated that you have doubt and I probably will have to add to some of those issues unless the tribunal makes its mind -" The Tribunal then said: "Well, if you listen to what he said and what his wife said there is a lot of reason for doubt." Mr Raveendran replied: "I certainly agree." Had the circumstances of the various interchanges in the course of the hearing given rise to a real case of actual bias, I seriously doubt that such an interchange would have occurred. I now turn to the remaining grounds of review. Error of law The applicant argued that the Tribunal acted in breach of s.476(1)(e) of the Migration Act 1958, which provides for the following ground of review: "that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision". The errors falling under s.476(1)(e) were stated by counsel for the applicant in four different ways. First, the Tribunal applied the wrong test in determining whether the applicant had a well-founded fear of persecution in terms of the Convention Relating to the Status of Refugees 1951 and the Protocol Relating to the Status of Refugees 1967. Secondly, he said that the manner in which the Tribunal applied the test did not take into account the cumulative effect of events occurring since the applicant left Sri Lanka and up until the time of the decision. Thirdly, he contended that the Tribunal erred in not considering changes which occurred in Sri Lanka between those two dates, in particular, certain parts of the applicant's evidence relating to his involvement in the murder of de Alwis, his involvement with the JVP, and his involvement or perceived involvement with the UNP. Fourthly, he contended that the Tribunal erred in not accepting evidence as to the existence and resurgence of the JVP since the applicant left Sri Lanka until the date of the determination, and the applicant's own evidence of his fear of persecution, both from the JVP and from the security forces, if he returns. In essence, each of these complaints depended on a challenge to the finding of the Tribunal against the applicant based on credibility. For the applicant to make good these grounds, he had to challenge the findings of fact made by the Tribunal. Once it is accepted that the Tribunal properly rejected the applicant's case on the facts, there is no basis for a finding that the wrong test was applied, or that it was applied in the wrong manner, or that there was any error in failing to consider changes which occurred in Sri Lanka between the date the applicant left Sri Lanka and the date of determination. The challenge which the applicant made to the findings of fact of the Tribunal was limited to the challenge that the Tribunal acted out of actual bias. In my view, that attack has not been made out and, consequently, the attack on the factual findings of the Tribunal have not been made out. Thus, there was no foundation upon which to apply the test of whether the applicant had a well-founded fear of persecution. In my view, the four alternative, or cumulative, ways which the applicant put his claim under s.476(1)(e) fall once the challenge to the Tribunal's findings of fact fail. Failure to observe procedures The final ground of review, as I understood the applicant's case, was that the Tribunal failed to observe the procedures required by the Act. In other words, the applicant relied on s.476(1)(a) of the Migration Act 1958. The procedures relied on were said to derive from s.420 of the Act and, in particular, s.420(2)(b) which requires that the Tribunal, in reviewing a decision, "must act according to substantial justice and the merits of the case". It was said by the applicant that the Tribunal imposed an onus of proof on the applicant which was a procedural injustice in the circumstances. Whether s.420 establishes procedures for the purposes of s.476(1)(a) is a matter which I do not need to determine. On the assumption that it does so, it seems to me that the Tribunal made no error. On page 2 of the transcript, the Tribunal introduced itself to the applicant in the following passage: "I'm not an employee of the Immigration Department. I make an independent decision. I do that by looking at all the information on your file again and any other information I can find during my enquiries, and I've also listened to the tapes of your DORS interviews. The people in this room associated with the tribunal, including me, are bound to keep these proceedings confidential. You're the only person that has the right to talk about these proceedings outside. The same goes for the interpreter, she's bound to keep the proceedings confidential. Now, to satisfy me that you are a convention refugee there are several elements. In your case, you need to satisfy me that you have a fear of persecution or a well-founded fear of persecution on the basis of your political opinion, and in your particular case what you've told me is that you fear being either executed or detained because of your connections or perceived connections with the JVP. And you've said that your persecutors are people from the JVP and people from the security forces." The error which the applicant says the Tribunal committed in this passage is the reference to the applicant needing to "satisfy me". This expression is used twice in two consecutive sentences. It was properly conceded on behalf of the applicant that the Tribunal would have been at liberty to say to the applicant that "I need to be satisfied that ....". In my view, there is no substantial distinction between the two formulations. It was entirely correct to say by way of introduction that the applicant, being present for the purpose of the conduct of the hearing and the Tribunal being present for the purpose of obtaining satisfaction on the application, needed to satisfy the Tribunal of the relevant elements of the refugee application. In my view, there was no error within the terms of s.476(1)(a) committed by the Tribunal in this respect. For these reasons, the grounds of review put forward in comprehensive submissions by the applicant must fail, and the order of the Court will be that the application be dismissed with costs.
I certify that this and the preceding fifteen (15) pages are a true copy of the reasons for judgment of his Honour Justice North. Associate: Dated: 26 July 1996 Counsel for the applicant: G. Burns Solicitors for the applicant: Ravi James & Associates Counsel for the respondent: S. McLeish Solicitor for the respondent: Australian Government Solicitor Date of hearing: 24 June 1996 Date of judgment: 24 June 1996
VICTORIA DISTRICT REGISTRY GENERAL DIVISION No VG 451 of 1994 B E T W E E N : BERNARD REGINALD FERNANDO WANNAKUWATTEWA Applicant AND THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS First Respondent AND REFUGEE REVIEW TRIBUNAL (constituted by JOHN VRACHNAS) Second Respondent MINUTES OF ORDER JUDGE: North J PLACE: Melbourne DATE: 24 June 1996 THE COURT ORDERS THAT: The application is dismissed with costs including reserved costs. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IMMIGRATION - Refusal of refugee status - Judicial review - Jurisdiction - Actual bias - Applicant must show Tribunal had a closed mind to issues raised and was not open to persuasion - Mere expression of doubt not evidence of actual bias - No error of law - Onus of proof - Not imposed on applicant - No failure to observe procedures required by the Act Judiciary Act 1903 s.39B Migration Act 1958 ss. 420, 476, 485 Migration Reform Act 1992 s.39 Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693 WANNAKUWATTEWA -v- MINISTER FOR IMMIGRATION and Anor No VG 451 of 1994 Before: North J Place: Melbourne Date: 24 June 1996
(1996) 135 ALR 693