FEDERAL COURT OF AUSTRALIA Hettige v Minister for Immigration & Multicultural Affairs [1999] FCA 1084 MIGRATION - application for judicial review of Refugee Review Triunal decision refusing grant of a protection visa - applicant is a citizen of Sri Lanka and his wife is a citizen of Malaysia - whether Tribunal's approach to factual claims raised by the applicant involved error of law - whether the Tribunal failed to give the applicant to opportunity to appear before it and given evidence as comprehended by the then s 425 of the Migration Act 1958 (Cth) - whether Tribunal's failure to make a finding on a material question of fact was in breach of s 430(1)(c) of the Act - Tribunal expressed substantial doubt about whether the incident occurred but did not make a finding that the incident did not occur - whether this failure satisfies the ground of review available under s 476(1)(a) of the Act. Migration Act 1958 (Cth) ss 425, 430(1)(c), 476(1)(a), 476(1)(e) Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946 Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 288 JANAKA HETTIGE & ANOR v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 420 of 1999 MOORE J SYDNEY 12 AUGUST 1999 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 420 OF 1999 BETWEEN: JANAKA HETTIGE & ANOR Applicant AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: MOORE J DATE OF ORDER: 12 AUGUST 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal is set aside. 2. The matter is referred to the Refugee Review Tribunal for further consideration according to law. 3. Respondent pay the applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 420 OF 1999 BETWEEN: JANAKA HETTIGE Applicant AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: MOORE J DATE: 12 AUGUST 1999 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application by Mr Janaka Hettige ("the applicant") and his wife Mrs Thara Hettige for the judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 8 April 1999. In that decision the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the applicant and his wife. 2 The applicant is a citizen of Sri Lanka and his wife a citizen of Malaysia. They both arrived in Australia on 21 June 1996 and lodged a combined application for a protection visa on 21 November 1996. Section 36 of the Migration Act 1958 (Cth) ("the Act") provides that such a visa may issue to a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. Both the delegate of the Minister and the Tribunal concluded that the applicant and his wife were not refugees. 3 The applicant is a thirty seven year old Sinhalese Buddhist who was born and educated in Kurunegale in the north western provinces of Sri Lanka. He is a marine engineer. His father was born in India and his mother in Sri Lanka. He married in Malaysia on 2 June 1996 and his wife is a Malaysian Tamil. Both her parents were born in Malaysia. Her maternal grandparents were born in India and her paternal grandparents were born in Sri Lanka. The applicant's account of his experiences in Sri Lanka directed to establishing that he had a well founded fear of persecution related to three stages in his life: the first as a student, the second as a marine engineer and the third as the proprietor of an employment agency. 4 When he was a student at the University of Moratui he was an active member of the Independent Student Union ("ISU"). In his account to the Tribunal the applicant said that in November 1991 he and fellow students had been attacked by police during a peaceful march prior to university elections. During the elections a boarding house in which he had been living was forcibly entered by soldiers who took the occupants, including the applicant, to an unknown location where they were beaten and kicked. They were later taken to a military camp where they were accused of being anti-government and the applicant was interrogated and beaten with rubber hose pipes filled with sand. He was detained for three days. He was kicked in the face and head which required hospitalisation. At the hospital he gave the police a statement. The applicant said that in 1982 he was a leading member of the ISU's organising committee but did not sit for his final exams because of the intervention of members of the government supported union. 5 In 1993 he joined the Sri Lankan Shipping Corporation ("the Corporation") though was continuing with his studies. He gave evidence of two incidents which indicated he was of interest to the authorities as a supporter of the Tamils. The second involved his abduction in November 1993 by army personnel. He said he was stripped naked, tied upside down and beaten with PVC pipes before being dropped into a water barrel. His account, it appears, is that in 1995 he commenced working on ships for the Corporation. Part of his account was that during the period 1986 to 1989 he was sailing on Corporation vessels though did not leave the vessels when they docked in Colombo because he feared what would happen to him. He later qualified this answer by saying that on occasions he did get off the ship to visit his friends. His account was also that various times in this period members of the armed forces attended his home and that on one occasion took all his clothes, books and documents and set them on fire. Because of these problems the applicant joined another shipping company and in 1982 went to England to study. He there met his wife. 6 In August 1994 there was a change of government in Sri Lanka. In mid February 1995 the applicant decided to return to Sri Lanka to start up an employment agency. That required a business license which in turn required a police report. The agency opened in May 1995. The applicant recounted to the Tribunal several incidents in 1995 evidencing harassment by the authorities. One incident occurred in October 1995 when the applicant, on his account, was taken from his office and detained for three to four days at an army camp. During this period he was tortured and interrogated about his Tamil connections. He thereafter went into hiding. In November 1995 his office was entered by members of the armed forces and its contents burnt and destroyed. During his period in hiding the applicant lived at the home of his sister-in-law who died in March 1996. In November 1995 the applicant applied to attend a course at the Maritime College in Launceston, Tasmania. The course was to commence in February 1996. The fees of a little over $8,000 were paid by his fiance in January 1996. The applicant received a student visa to enter Australia in March 1996 but did not leave Sri Lanka till May 1996. After spending six weeks in Malaysia he entered Australia in June 1996. It was during this stay in Malaysia that he married. The preceding account is not an exhaustive description of the Tribunal's account of both the applicant's evidence and submissions nor an exhaustive summary of the evidence and submissions themselves. Rather it is an outline of the background drawn from the Tribunal's decision which provides sufficient detail to deal with the submissions of counsel in these proceedings. The grounds of judicial review of a decision of the type presently under consideration are identified in and limited by s 476 of the Act. Counsel for the applicant identified twelve aspects of the Tribunal's decision which were said to establish one or a number of the grounds for judicial review found in s 476. It is convenient first to set out each aspect in summary form and then identify how it is said they establish a ground of review. They were: (i) The Tribunal rejected the applicant's contention that he had been a leading and active member in student politics though the Tribunal characterised the contention as being that the applicant was a high profile political figure. It rejected the contention only on the basis that the applicant had not held office in the student union. (ii) The Tribunal doubted the account given by the applicant of having been removed from his boarding house with the other occupants by armed soldiers in 1981 and the subsequent physical abuse of the applicant and his fellow students when in detention. One matter pointed to by the Tribunal as founding its doubt was the applicant's evidence concerning the manner in which the police were notified of the attack when the applicant was hospitalised. (iii) The Tribunal also had substantial doubts about the applicant's account of having been tortured in November 1993 and, in particular, stripped naked, tied upside down, beaten with PVC pipes and dropped into a barrel of water. The Tribunal found it hard to believe that had these events occurred the applicant would not have required medical assistance. The applicant had said in evidence that he had not sought medical assistance. (iv) The Tribunal rejected the applicant's explanation for why he remained working on ships in 1985 while they were in port. The applicant had explained that he feared he would be arrested and tortured again were he not to remain on the ship. Rejection of this explanation was based on other evidence given by the applicant that he had never been arrested. Seemingly the Tribunal took the view that because the applicant said he had never been arrested then it could not also be asserted by him that he feared being arrested again. (v) A related issue concerned the applicant's account that he remained on the vessels he was working on in the period 1986 to 1989 when they were berthed in Colombo because he feared the consequences of going ashore. The Tribunal contrasted this statement with the applicant's account that, in fact, he disembarked from the vessel on several occasions and visited friends and relatives in Colombo without incident. (vi) The Tribunal doubted the applicant's account that in July 1995 he had been ordered to close his employment agency. That doubt was based on what the Tribunal perceived to be confused and contradictory evidence on, inter alia, the manner in which the order which closed the office was issued. (vii) The Tribunal doubted that the incident in October 1995, in which the applicant says he was abducted and tortured, ever occurred. It reached this conclusion for two reasons. The first was that no explanation was given for the army's sudden interest in the applicant and the second was that the identification of the abductors and torturers as members of the army was not based on those involved being identified as members of the army because they were wearing uniforms. (viii) The Tribunal was not satisfied that the applicant ever intended to attend the Maritime College in Tasmania which was the purported reason for his entry into Australia. The Tribunal expressed the view that the applicant enrolled in the course for the sole purpose of obtaining a student visa to enter Australia as part of laying the foundation for claiming refugee status. (ix) One specific factual issue which may have been of relevance to the Tribunal's consideration of the applicant's reasons for coming to Australia was the time at which the application for the student visa was made. The Tribunal asked the applicant when the application was made and was told it was "the end of January, early February". Shortly thereafter the solicitor representing the applicant observed that enquiries could easily be made by the Tribunal of the High Commission in Colombo. Observations of the Tribunal make it clear that it accepted this was so. There is nothing in its decision to suggest that such enquiries were made. (x) The Tribunal rejected the applicant's explanation of events surrounding the death of his sister-in-law as utterly unconvincing and fabricated for the express purpose (and at the eleventh hour) for explaining why he did not arrive in Australia to attend the course in which he had enrolled. This conclusion was not open to the Tribunal given that in his original application for a protection visa the applicant had adverted to the death of his sister-in-law and enclosed a copy of her death certificate. (xi) The Tribunal rejected a contention made by the applicant that he feared persecution were he to return to Sri Lanka because he was married to a Tamil. The Tribunal was not satisfied that the applicant's wife would be perceived as a Tamil given that she and her parents were born in Malaysia and were citizens of that country. (xii) The Tribunal was aware that the applicant spoke, read and wrote English. However it invited the applicant at the commencement of the hearing to indicate in which language he would wish the inquiry to be conducted. The applicant indicated Sinhalese. In its reasons the Tribunal expressed the view that the applicant had been reluctant to directly answer many significant and relevant questions. That was not because he failed to understand either the interpreter or the questions but rather wanted to evade giving a direct answer, to equivocate or to falsify his evidence. 7 It is now necessary to consider the preceding matters in the context of the statutory framework creating the right to judicial review conferred by the Act. 8 Each of the preceding matters were said to support a conclusion that the Tribunal had not observed procedures required by the Act: see s 476(1)(a), in that the Tribunal had failed to give the applicant an opportunity to appear before it to give evidence. The entitlement to that opportunity was found in s 425 which provided (at the relevant time): 425 (1) Where s 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary. (2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review. 9 I will return to consider this submission shortly. However it is convenient to deal with two specific submissions made in relation to a more limited number of the matters set out in para 6 above. 10 Counsel for the applicant identified three matters which were said to establish an error of law of the type referred to in s 476(1)(e), that is an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. The first was the approach taken by the Tribunal to the applicant's evidence that he did not leave the vessel in 1985 because he feared being arrested again. As I understood the submission, it proceeded on the basis that the Tribunal adopted an unduly narrow view of what was comprehended by the legal notion of arrest. That is, it proceeded on the basis that arrest comprehended only detention by the police and not, as the applicant contemplated, detention by army personnel. The Tribunal's approach to this issue was unsatisfactory. The fear the applicant appears to have been speaking of was of detention by army personnel. The concession by the applicant that he had never been arrested was a concession concerning arrest by the police. The applicant's evidence that he feared arrest of the type he spoke of and the concession that he had never been arrested by the police were entirely compatible. However I do not view the approach of the Tribunal as manifesting an error of law. It simply manifests a flaw in the logic adopted by the Tribunal to this issue. Secondly, an error of law was said to be manifest in the Tribunal's consideration of whether the applicant had a well-founded fear of persecution because, were he to return to Sri Lanka, his wife would be perceived to be a Tamil. If so, that would heighten interest in him as a perceived Tamil sympathiser. It is true that the Tribunal offered no reason why it took the view that the applicant's wife would not be perceived as a Tamil beyond referring to her country of origin and nationality and that of her parents. However the Tribunal indicated that it was not satisfied she would be perceived as a Tamil. It did not express the positive conclusion that she would not be. The matters pointed to by the Tribunal do have a rational connection with the stated lack of satisfaction and the Tribunal's consideration of this issue does not, in my opinion, illustrate some misunderstanding or misapplication of the law concerning what is comprehended by persecution. 11 This can also be said of the last matter relied upon by counsel for the applicant. It was that the Tribunal, it was submitted, had misunderstood what was comprehended by persecution when it dealt with the applicant's contention that he had left the vessel he was on in Colombo on several occasions and visited relatives and friends. It is true that the applicant could have then feared harm but avoided it and those facts might sustain, or at least not negate, a conclusion that he then feared harm or persecution. However the Tribunal's consideration of this evidence was primarily directed to whether or not, as a matter of fact, the applicant had then feared harm or persecution. The Tribunal took the view that because the applicant visited friends and relatives he had not been fearful of the consequences of leaving the ship. This view was open to the Tribunal though plainly the contrary view was also open. The existence of the fear at relevant times between 1986 and 1989 was a matter of fact for the Tribunal. Its consideration of this issue does not, in my opinion, disclose a misunderstanding of what is comprehended by the notion of persecution. 12 One specific matter referred to in para 6 above was identified as establishing a failure on the Tribunal's part to comply with the requirements of s 430. That section relevantly required: 430(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on a material question of fact; and (d) refers to the evidence or any other material on which the findings of fact were based. 13 Sub par (iii) of par 6 above sets out the approach the Tribunal took to the question of whether the applicant should be believed in relation to the incident he recounted where he had been stripped naked, tied upside down, beaten with PVC pipes and dropped into a barrel of water. Its approach was to note that such treatment would have required medical assistance but to also note that the applicant had not sought such assistance. There is plainly not a necessary logical discord between the two propositions. A person may require medical assistance but, for a variety of reasons, not seek it. Indeed the applicant's evidence was that he had not seen a doctor because "I would have been subjected to more problems". This, as I understood the submission, constituted a failure of the Tribunal to set out a finding on a material question and/or a failure to refer to the evidence on which the finding was based. 14 While this incident, on the applicant's account, happened many years ago it was nonetheless, in my opinion, a material issue of fact raised by the applicant. It was the second serious incident of what might be characterised as persecution that the applicant said he had experienced. It was one of two matters identified by the applicant as establishing that, at a comparatively early age, he was perceived to be allied to the Tamil cause. It was an incident that, on his account, helped lay the foundation for the ongoing concern he had of being of interest to the authorities in Sri Lanka and of later being harassed by them. Of this incident the Tribunal said: Moreover, I also have substantial doubts about the applicant's story that at the end of November 1983 he was captured and blindfolded by army personnel; detained for 3 days; interrogated about his involvement with Tamil organisations; and stripped naked, tied upside down and beaten with PVC pipes before being dropped into a water barrel. I find it hard to believe that if the applicant had been treated as claimed, he would not have subsequently required medical assistance. However, the applicant told me that he did not seek the assistance of a medical practitioner. In summary, I find that the applicant's lack of high political profile during these years; his lack of association with the union after 1983; and the fact that he was never arrested during this period (or at any other time) leads me to the conclusion that he would have been of little, if any, interest to the authorities in subsequent years on account of his student activities. The Tribunal makes no finding whether this incident occurred. Even taking a benevolent view of the Tribunal's reasons, I do not consider the mere expression of substantial doubt constitutes a finding that the incident did not occur. It is similar to the approach adopted to issues of fact by the Immigration Review Tribunal in Borsa v Minister for Immigration and Multicultural Affairs [1999] FCA 348. The Tribunal has failed to satisfy the requirements imposed by s 430(1)(c) and the applicant has made out the ground of review under s 476(1)(a). As to the scope of this ground more generally – see Paramananthan v Minister for Immigration and Multicultural Affairs (1998)160 ALR 24, Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 and Voitenko v Minister for Immigration and Multicultural Affairs [1999]FCA 428. 15 What appeared to be the primary submission of counsel for the applicant in the written submissions was that in dealing with each of the matters referred to in sub paras (i) to (xii) of par 6 above the Tribunal failed to give the applicant an opportunity to appear to give evidence as it is obliged to, in certain circumstances, by the then s 425. This submission was founded principally on the recent judgment of a Full Court in Minister for Immigration and Multicultural Affairs v Cho [1999] FCA 946. In that matter Tamberlin and Katz JJ, in a joint judgment, discussed the contents of that obligation. Their Honours said at para 32: In Eshetu, four Judges of the Court, Gleeson CJ and McHugh J (at par 49), Gummow J (at par 109) and Callinan J (at par 178), refer with approval to the observations of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324; rev (1997) 81 FCR 71, where he said at 59-60: There is another argument based on [s] 476(2)(a) that leads to the same result. The general law notion of natural justice comprises the 'impartial tribunal' requirement (the 'bias rule') and the 'fair hearing requirement' (the 'hearing rule')…. While [s] 476(2)(a) makes clear that these requirements do not provide the basis of a ground of review, [s] 476(1)(f) provides that actual bias is such a ground, while [s] 476(1)(a) and [s] 425(1)(a), taken together, have the effect that a failure to give genuine opportunity to appear before the [Tribunal] to give evidence, is also such a ground. This suggest that the legislature turned its mind to the twin requirements of natural justice and intended that [s] 476(1)(f) and [s] 425(1)(a) should occupy the field that would otherwise be occupied by the rules of natural justice. It will be clear that the expression in [s] 426(2)(a), 'the rules of natural justice', is to be read down in some way so that it refers to those rules only in so far as they depend on the general law, and does not detract from any generally expressed requirement of the Act which might otherwise be thought to have the effect of mandating observance of those rules." (Emphasis added) We do not consider that there is any special significance in the reference to the word "genuine" which would expand the content of s 425 beyond the ordinary and natural meaning of the language used. According to its terms the section simply requires that an opportunity be given to the applicant to appear and give evidence. Obviously if there is no real opportunity given then the section has not been complied with. This could arise, for example, where relevant evidence is not admitted or misleading statements are made by the decision-maker which discourage an applicant from calling or proceeding with a particular line of evidence. It should also be noted that the above quoted observations of Lindgren J support the proposition that a failure to comply with s 425(1)(a) may amount to a failure to observe a "procedure" within the meaning of s 476(1)(a) of the Act, although the objectives expressed in s 420 do not." 16 Their Honours then referred to Budiyal v Minister for Immigration and Multicultural Affairs [1998] FCA 243, Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 161 ALR 612 and Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 288. In Hussein the Full Court had said at par 38: It is not the function of the Tribunal to 'lead' a visa applicant to assert a convention-related fear of persecution when, without that direction, the visa applicant has been given the opportunity to explain the reasons for the fear of persecution without being led to a particular answer. Counsel for the applicant also referred to the concurring judgment of Sackville J in Cho (supra). His Honour said at para 70: It does not necessarily follow that the effect of s 425(1)(a) is exhausted once the RRT actually commences to hear the applicant's evidence, adequate notice of the hearing having been given. There may be circumstances – although I think they are likely to be rare – where the RRT conducts the hearing itself in a manner which denies the applicant the genuine opportunity contemplated by s 425(1)(a). To take a hypothetical example, the RRT, having given the applicant timely notification of the statutory entitlement and the hearing, might inform the applicant at the hearing itself that he or she will not be permitted to give evidence on a particular claim within the applicant's own knowledge. If the RRT were to reject the application on the ground that it had not been satisfied of the particular claim, it would not be difficult to conclude that the applicant had been denied the opportunity contemplated by s 425(1)(a). The applicant, although permitted to appear before the RRT and to give evidence, would have been denied the opportunity to appear and give evidence on an issue the RRT itself considered to be critical to the outcome of the case. 17 In the present case the approach the Tribunal took to the evidence that the applicant had given was, in several respects, an unsatisfactory one. However s 425 directs attention to the hearing itself. I have perused the transcript and looked at, in particular, those parts of it relied on by counsel for the applicant to support various criticisms of the Tribunal's decision. It does not appear to me that the Tribunal did not give the applicant an opportunity to give evidence. On each of the matters identified by counsel, the applicant was able to give evidence and was not misled by the Tribunal into not giving evidence about something that was crucial. It is true that in relation to one issue the Tribunal could have made enquiries itself, namely the time at which the applicant applied for his student visa. But that was a matter on which the applicant gave evidence though it may be accepted that it is a matter on which the Tribunal could have precisely ascertained the true position. However the transcript does not reveal that the applicant was uncertain about the answers he gave on this question and that he was desirous of establishing with precision when the application was made. He was not deterred from giving further evidence on this question because of the acknowledgment by the Tribunal that it could make its own enquiries. 18 While the applicant has failed on many of the points raised on his behalf, he has established one of the grounds identified in s 476. The decision of the Tribunal should be set aside and the matter referred to the Tribunal for further consideration according to law. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 12 August 1999 Counsel for the Applicant: Rhonda Henderson Solicitor for the Applicant: Gnana-Karan Solicitors Counsel for the Respondent: Dean Jordan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 21 July 1999 Date of Judgment: 12 August 1999