IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 184 of 1987 ) ) GENERAL DIVISION Between: PREMANAERTHAN THERESA GUNALEELA AND OTHERS Applicants And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: Einfeld J. DATE: 16 June 1987 PLACE: Sydney REASONS FOR JUDGMENT This case concerns a judicial review of certain decisions made ~"by the respondent in respect of applications by four Sri Lankans of Tamil oxigin to remain in Australia under one classification or another. The matter was part-heard on Wednesday, 27 May 1987, when affidavits were read, documents were tendered and some short oral evidence was given. At the conclusion of the hearing on Friday, 29 May 1987, I gave certain directions concerning the future progress of the case which included that the Minister should provide to the applicants copies of all decisions that had been made and were sought to be reviewed, that the parties should file written submissions and that the matter should be continued on Thursday, 18 June 1987. On Wednesday, 10 June 1987, Mr. Gyles of Queens Counsel, on behalf of the respondent Minister, made an application that I should disqualify myself from the further hearing of the matter upon the basis of a letter written by me to the Minister in my capacity as President of Human Rights and Equal Opportunity Commission on 6 May 1987. That letter, which is marked for identification RVG 1, was written on behalf of four quite different Sri Lankans of Tamil ethnic origin who had been refused temporary entry permits at Perth Airport on 25 March 1987. They had subsequently been refused refugee status and had made application to this Court for a review of that and perhaps other decisions. This matter has subsequently been litigated and resolved by a judgment of Mr. Justice French dated 5 June 1987. I have not read his Honour's judgment because I was notified that the Minister was making an application that I disqualify myself and it seemed inappropriate that I should therefore become knowledgeable of the facts and legal matters which are no doubt related in that judgment. The letter from the Human Rights and Equal Opportunity Commission to the Minister was written in anticipation of an adverse decision to the applicants by Mr. Justice French and I am informed that his Honour's decision was in fact adverse to their applications. The letter sought in substance the extension of the special policy in force within the Department of Immigration and Ethnic Affairs for the management of applications for Australian residency by Sri Lankan Tamils and the extension to the particular applicants of compassionate and humanitarian considerations. As far as I am aware, the only parallel between that case and the present case is that the applicants are Sri Lankan Tamils seeking permission to reside in Australia. Mr. Gyles drew attention to two paragraphs of the letter which he says bring this case within the principles laid down by the High Court in Livesey v The NSW Bar Association (1983) 151 CLR 287. In that case the High Court said at page 293: "... a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." Their Honours go on to say at page 300: ",.. a fair-minded observer might entertain a _ reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous. case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent' case or about the credit of a witness whose evidence is of significance on such a question of fact." Mr. Gyles argues that the Minister as one of the litigants in these proceedings might reasonably perceive that I could not bring a dispassionate and unbiased mind to the determination of the issues in this case by reason of the following two paragraphs from the letter: "As you are no doubt aware, the civil strife and potential for human rights abuses of Tamils in Sri Lanka has increased dramatically in the weeks since your decision was first made. This leads me to suggest that the complainants would, in all likelihood, encounter severe racial discrimination and serious interferences with their human rights, if required to return to Sri Lanka at the present time. The direct link between human rights abuses and the return of individuals to Sri Lanka against their will appears to be well established. I recognise that the presence of these four persons in Australia places the Government in a difficult position. Nonetheless because of the desperate risks which the Department's ordinary policy considerations in such circumstances would cause to such people, I understand that the Department's Sri Lankan Case Management policy was recently reassessed at the request of the United Nations High Commissioner for Refugees." As I understand the evidence in the current case, the Minister raises or seeks to raise no issues at all about any of these matters so far as they are of general application. Indeed, one of the Minister's witnesses at the hearing conceded that such matters are taken into account and were taken into account by the DORS Committee in this particular case. In addition, the applicants tendered, without objection, a considerable volume of material from Amnesty International which provided ample statistical and detailed support for the assertions in those two paragraphs. At the time of their tender, counsel for the Minister said that while he did not admitt every single statement in the material, he did not object because this material was before the DORS Committee at the time it made its determination. The matters which are for decision in this case are quite different to the matter to which the letter was directed. It has often been pointed out that the Court in exercising its jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 does not put itself in the place of the decision-maker. It is not for the Court to determine whether the general statements made in those two paragraphs are correct, nor whether the persons concerned in that case or this are entitled to be permitted to remain in Australia on compassionate and humanitarian grounds. The Court's role is by now well known and does not need repetition here, but it certainly does not involve a consideration of such questions. In any case, as I have said, there does not appear to be any issue in these proceedings that Sri Lankan Tamils are actually and potentially liable to discrimznation and human rights abuses in Sri Lanka. In these circumstances this case cannot turn on the appropriateness of remarks about the situation generally. Counsel for the Minister drew attention to evidence given in this case that Sri Lankans do not generally suffex serious problems in the south of Sri Lanka. I do not know whether that is true or not, but assuming it to be true, there is nothing in the letter which contests it. I do not know whether the present applicants come from the south, the north or any other part of that country, nor from where the persons who were the subject of the letter come. The applicants, through their counsel, have indicated that they may be asking the Court to find that they are entitled to refugee status. Regardless of the present issue, I have said that I would take considerable persuasion that even if the Court has power to make such a ruling, it should do so in this or in any other case. Counsel could not identify a case, nor do I know of one, in which such an order has been made. My impression is that authority which is binding on me would make such an application extremely difficult, if not impossible, to accede to. In any case, it would obviously have to depend upon its own facts and these facts would necessarily be different to those in the cases of the persons about whom the letter was written. For myself, I do not know what were the relevant facts concerning the persons referred to in the letter, as the letter made no application for a reversal of the decision of the DORS Committee. In my view, there is no substance to the application that I _ should disqualify myself from the further hearing of the matter. No party or fair minded observer could, in my opinion, reasonably perceive that [I could not deliver decision in this matter in the usual completely dispassionate way, nor do I believe that there is available any reasonable perception of prejudgment of any issue in this case by reason of anything in the letter. It is as equally unavailable in perception as it is in fact. The application is refused. ene eee UTE \- ones t arity tee thoan td 84 s leorvy wo. fos proce tee eT ccry cf the Re 27743 %cr ¢ Jiri roca of &.s Honour Min, deohew od . Zuve st ' fecicc's Counsel for the Applicant: Mr. M. Smith, instructed by Mr. J. Fitzgerald, Australian Legal Aid Office Counsel for Respondent Minister: Mr. R. Gyles, QC with Mr. P. Hastings, instructed by Australian Government Solicitor.