FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 MIGRATION – Refugees – whether Refugee Review Tribunal failed to recognise material difference between a Sinhalese phrase translated as "several times a month" and "several times for a month" – whether Minister conceded a material difference - whether this constituted a fact for purposes of s 476(4)(a) – whether decision was based on fact for purposes of s 476(4)(b) – whether there was no evidence or other material to justify the making of the decision for the purposes of s 476(1)(g)- whether satisfying s 476(4) is sufficient to satisfy s 476(1)(g) – whether s 476(1)(g) permits Court to make a qualitative assessment of evidence Migration Act 1958 s 476(1)(g), s 476 (4) THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v PUBUDU KUMAR INDATISSA AND JENNIFER VIJAYANTHI INDATISSA V 661 of 2000 SUNDBERG, EMMETT & CONTI JJ 5 MARCH 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY NO. V 661 OF 2000 JUDGES: SUNDBERG, EMMETT & CONTI JJ DATE OF ORDER: 5 MARCH 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The respondents pay the appellant'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 VICTORIA DISTRICT REGISTRY NO. V 661 OF 2000 BETWEEN: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT AND: MR PUBUDU KUMAR INDATISSA FIRST RESPONDENT AND: MS JENNIFER VIJAYANTHI INDATISSA SECOND RESPONDENT JUDGES: SUNDBERG, EMMETT & CONTI JJ DATE: 5 MARCH 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The first respondent is a citizen of Sri Lanka. The second respondent is his wife. Both are of Sinhalese ethnicity. They arrived in Australia on 7 July 1996. On 27 June 1997, they lodged applications for protection visas. On 8 August 1997, a delegate of the appellant, the Minister for Immigration and Multicultural Affairs ("the Minister"), refused to grant a protection visa. The respondents applied to the Refugee Review Tribunal for review of the decision of the Minister on 26 August 1997. On 26 November 1999, the Tribunal affirmed the decision not to grant protection visas. 2 The respondents then filed an application for an order of review of the decision of the Tribunal. On 10 August 2000, a judge of the Court ordered that: 1. the decision of the Tribunal be set aside; 2. the application for protection visas be remitted to the Tribunal, differently constituted, to be dealt with according to law; 3. the Minister pay the respondent's costs of and incidental to the application. 3 The Minister now appeals from those orders to the Full Court. The Minister seeks orders that: · the appeal be allowed; · the orders made by the primary judge be set aside; · in lieu thereof it be ordered that the application for review be dismissed with costs. 4 The respondents' claims to be refugees are based principally on experiences of the first respondent ("Mr Indatissa") and his family. Mr Indatissa claimed that he and his wife had resided in a large four bedroom house in Colombo and that about twice a month various Tamil friends and their relatives had stayed overnight at their home, while those people finalised arrangements to leave Sri Lanka. He claimed that he was not aware, at the time, of any political connections that they may have had; he permitted them to stay at his home because, at that time, Tamil homes were constantly being raided by the police and the army. 5 Mr Indatissa claimed that in about October 1996, several months after he arrived in Australia, he was telephoned by his mother and told that a group of soldiers had raided the family home and arrested a number of Tamils who were staying there at the time. The Tamils were suspected of being involved with the Liberation Tigers of Tamil Eelam ("LTTE"). He was told that the house had been damaged and that both his parents had been subjected to harassment. He claimed that after this telephone conversation he appreciated there may have been connection between the Tamils who had stayed at his home and the LTTE. However, he said that it was not until that telephone conversation that such an appreciation came to him. He claimed further that he understood that the number of Tamils who came to stay at the family home had increased significantly after he left Sri Lanka. He claimed that it then became apparent to him that the Tamils had taken advantage of the willingness of his parents to provide sanctuary to those who were in a desperate plight. 6 Mr Indatissa relied upon a number of letters, which, he said, supported his claims. One of those letters was considered by the primary judge to be of crucial importance to the application to the Court. It is dated 3 September 1997 and purports to have been written by Mr Indatissa's father. It is in Sinhalese. Before the Tribunal, the respondents relied upon a translation of the letter made at their behest by Mr Wimalasiri Jayakody. Mr Jayakody is a practising solicitor in Victoria who claims to be proficient in both Sinhalese and English. 7 The translation of the letter provided by Mr Jayakody was as follows: " For your information It was very common that the Tamil friends and their colleagues of my son Pubudu Indatissa visited and stayed at our house very frequently. Since our house is very large they visited and stayed at our house several times for a month. They came and stayed like this mainly for the purpose of getting their documents organized, travel abroad. Staying at our place like this had been happening for a long time." (emphasis added) 8 In addition to the various letters relied upon by the respondents, two witnesses also gave evidence on their behalf before the Tribunal. One was a friend of Mr Indatissa and the other was his brother in law. The evidence of both was directed to corroborating claims that Mr Indatissa's parents had been subjected to mistreatment after his departure from Sri Lanka. 9 Mr Indatissa claimed that the authorities believe that he harboured members of the LTTE and that his parents had suffered as a consequence. He claimed that the family home was often searched and that both his parents are on "reporting conditions". He claimed that the authorities still suspect he is residing somewhere in Sri Lanka. He claimed that his sister was raped, in April 1999, because of suspicion of his own involvement with LTTE operatives. 10 The Tribunal accepted that it may well be common for Tamil people to stay in the houses of Sinhalese people in Colombo. However, as to whether Tamils actually stayed at Mr Indatissa's house, the Tribunal noted what it considered to be discrepancies in the evidence as to the frequency of such stays. The Tribunal concluded that in view, inter alia, of the inconsistencies in the evidence as to the frequency of the stays, the claim of having Tamil guests was not credible. 11 In reaching that finding, the Tribunal also noted that no action was ever taken against Mr Indatissa before he departed Sri Lanka on his own passport. He was motivated to depart wholly for personal reasons and had no fear of the authorities at that time. 12 The Tribunal noted the claims that Mr Indatissa became fearful when he was advised in October 1996 of difficulties faced by his parents, allegedly for harbouring Tamils connected with the LTTE. Even then, he delayed making an application for a protection visa for a further nine months. The Tribunal concluded that the significant delay in applying for asylum indicated that he did not have a strong fear for his personal safety or future well being either when he left Colombo or even when he later had discussions with his family there. 13 The Tribunal found that Mr Indatissa did not himself accommodate Tamils in the family home. It did not find credible that LTTE operatives from the north would seek relative sanctuary at the home of a Sinhalese family that had no links to them, because it would expose both them and the Tamils to unusual risk. The Tribunal considered that that conclusion was re-inforced by the traditional antagonism between Sinhalese people and the LTTE. The Tribunal considered that the fact that Tamils were coming from the north to arrange travel documentation would be bound to arouse some suspicion, especially in view of the frequency of the alleged visits. The Tribunal noted that the claims did not relate to merely renting accommodation to a Tamil from outside Colombo, rather the claims were of providing occasional accommodation over a long period of time to Tamils from a traditional stronghold who would "indubitably have brought suspicion on them by their location and the frequency and purpose of their visits". 14 The Tribunal found that Mr Indatissa was not a person who had accommodated Tamil people such that there could be any basis at all for a suspicion that he was even sympathetic to the LTTE. The Tribunal was prepared to concede that very rare instances might arise where a Sinhalese person might be suspected of harbouring LTTE members, at least temporarily. However, the Tribunal did not consider that the facts supported such a finding or provided any credible basis for a finding that Mr Indatissa faced a real chance of persecution for any Convention reason. 15 The Tribunal accepted that it may well be common for Tamil people to stay in the houses of Sinhalese people. It accepted that some accommodation facilities in Colombo that were traditionally used by Tamils have been closed in recent years and that security raids have generally focussed on Tamil areas. However, as to whether Tamils actually stayed at Mr Indatissa's family house, the Tribunal referred to so-called "discrepancies" in the evidence as to the frequency of those stays. 16 The Tribunal recorded that at the hearing, Mr Indatissa said that Tamils stayed at his house about once a month for about a year immediately prior to his departure from Sri Lanka. In his statement to the Minister of 27 June 1997, he gave similar evidence saying that Tamils stayed once or twice per month. However, in the letter from Mr Indatissa's father of 3 September 1997, according to the English translation provided by Mr Jayakody, Tamils stayed at the family house "several times for a month". The Tribunal concluded that the applicant's evidence that there were occasional overnight visits was in contrast to the evidence of his father's letter that the visits were of much longer duration. 17 The primary judge considered that the Tribunal appeared "somewhat confused" as to the effect of a translation of Mr Indatissa's father's letter furnished by an interpreter who assisted with the hearing. His Honour considered that the Tribunal appeared confused as to whether the interpreter's translation of the letter accorded with that provided by Mr Jayakody. His Honour considered that it was of particular significance that the last matter that the Tribunal addressed in the course of the hearing related to that translation. 18 His Honour relied on the following extract from the transcript: "MR BREWER: Now, can I have the file back for a minute, because there's another letter. I'll get the first paragraph of that translated as well. This is another letter of 3 September 97, if you could just slowly read that also to [the interpreter]. INTERPRETER: The Tamil friends of my son Pubudu used to come and to take lodgings in the house of – they were in the habit to come and stay in our house several times a month, as our house is a large one. Primarily they came and stayed in the house in order to get the documents for leaving the country. They have been taking lodgings in our house for a long time. That's the first paragraph. MR BREWER: Okay, well, can I have that back. They would appear to accord with the translations, at least of those paragraphs, but as I pointed out before, are not necessarily consistent with the evidence the applicant gave about frequency of Tamils staying at the house in the period. INTERPRETER: These are the letters sent by my father after my departure from Sri Lanka to Australia. MR BREWER: Yes, I understand that. INTERPRETER: I think the letters suggested they came often and stayed for longer periods in the house after my arrival in Australia. Yes, they had come out three or four times a month. MR BREWER: Okay, well, you've given that evidence, and that is something I'll need to consider, along with all of the other evidence that's been given, the material in the files and the submission that's been made on your behalf, then I'll write a decision, and the reasons for that decision. …" (emphasis added) 19 The words of the interpreter are somewhat equivocal. It is by no means certain that the interpreter was contradicting Mr Jayakody's translation. The Tribunal did not understand the interpreter to be doing so. It is clear that the Tribunal understood the interpreter to be corroborating Mr Jayakody's translation. 20 His Honour considered that the Tribunal was concerned by the discrepancy between what Mr Jayakody had attributed to Mr Indatissa's father and what Mr Indatissa had said in evidence before the Tribunal. His Honour considered that the interpreter who assisted the Tribunal did not support Mr Jayakody's translation. Rather, his Honour considered that the translator's evidence to the Tribunal was to the effect that there was no discrepancy between the account given by Mr Indatissa and that given by his father. His Honour considered that it was significant that why the Tribunal did not act on the interpreter's translation, rather than that of Mr Jayakody, was never explained. 21 Before the primary judge the applicant sought leave to rely upon an affidavit sworn by a NAATI registered interpreter and translator, Ms Tissa Amarasekera. Ms Amarasekera swore that she was familiar with both the Sinhalese and English languages and that she was competent to translate from Sinhalese to English. She had been asked to translate the first paragraph of the letter from Mr Indatissa's father dated 3 September 1997. The translation of the relevant paragraph furnished by the witness was as follows: 'Tamil comrades of Tamil friends of my son Pubudu Indratissa [sic] use to visit and stay at our residence frequently. Since our house is large these people use to come and stay several times a month. They said that mainly they come to organize the documents required for foreign travel. Over a long period they made it a practice to seek accommodation in this manner. (emphasis added)'" 22 There was no suggestion before the primary judge that that translation was other than accurate. No attempt was made by the Minister to adduce evidence to rebut that evidence. His Honour concluded, therefore, that the Minister tacitly conceded that Mr Jayakody's translation was erroneous and that the supposed discrepancy between Mr Indatissa's account and that of his father did not exist. His Honour concluded, on the basis of the new translation evidence and what was said by the interpreter during the course of the hearing before the Tribunal that there was "in fact no discrepancy of the type referred to by the Tribunal in its reasons for decision". His Honour concluded, therefore, that the ground provided for in s 476(1)(g) was established by the respondents. 23 Section 476(1)(g) provides as follows: "(g) that there was no evidence or other material to justify the making of the decision." However, s 476(4)(b) qualifies that ground in the following terms: "(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 24 His Honour concluded that the Tribunal's finding that there was a discrepancy between the account given by Mr Indatissa and that supposedly given by his father was a critical factor in its decision to reject the claim. His Honour considered that the supposed discrepancy led the Tribunal to take one path in the process of reasoning rather than another, and so to come to a different conclusion. His Honour considered that the perceived discrepancy was one which was "of fundamental importance to the issue of" Mr Indatissa's credibility. Assuming the discrepancy existed, the only possible explanations were that Mr Indatissa was lying or that his father was. His Honour considered that were the Tribunal to make either of those findings, the case of the respondents would suffer irreparable harm. 25 The primary judge concluded, therefore, that it was likely that the Tribunal's finding that Mr Indatissa had deliberately lied about the visits by Tamils to his family home affected its subsequent findings, at least to the extent that they were in any way dependent upon credibility. His Honour was satisfied that the supposed discrepancy constituted a "particular fact" within the meaning of s 476(4)(b) and that, having regard to the evidence before his Honour, that fact did not exist. His Honour concluded, therefore, that the Tribunal's decision to reject the claim of the respondents was relevantly based on the existence of a particular fact that did not exist. 26 There are three requirements for establishing the ground of s 476(1)(g), as qualified by s 476(4)(b). The first requirement, to be found in s 476(1)(g) itself, is that there was no evidence or other material to justify the making of the decision. The second requirement, as found in the first limb of s 476(4)(b) is that the decision under review is based on the existence of a particular fact. The third requirement, found in the second limb of s 476(4)(b), is that that fact did not exist. Unless each of those requirements is satisfied, the ground is not be made out. 27 It is not sufficient simply to establish the two matters referred to in s 476(4)(b). That paragraph qualifies s 476(1)(g). It does not constitute a definition of what will amount to there being no evidence or other material to justify the making of the relevant decision. That is to say, it is not sufficient to show that a decision was based on the existence of a particular fact and that that fact did not exist. If that was sufficient, any decision of a Tribunal based on the existence of a particular fact could be challenged in the Federal Court by adducing evidence designed to persuade the Federal Court to reach a different conclusion concerning the existence of that fact. Such an approach is demonstrably unsound. It is beyond question that the power of the Court under s 476(1) generally and s 476(1)(g) in particular does not extend to a re-examination of any of the factual matters ventilated before the Tribunal. 28 In other words, it is only if it can be shown that there was no evidence or other material to justify a decision that it is necessary to consider s 476(4). If there is before the Tribunal any evidence or material capable of supporting the particular fact on the existence of which the decision is based, the ground cannot be made out. 29 Assuming, for present purposes, that the Tribunal's decision was based on the existence of a particular fact, namely, the discrepancy between the evidence of Mr Indatissa and the evidence of his father's letter, there was in the present case evidence capable of supporting the existence of such a fact. That was the evidence tendered by Mr Indatissa himself, namely, Mr Jayakody's translation of his father's letter. The first enquiry should have been whether there was any evidence or material capable of supporting the so-called particular fact. Once that enquiry established that there was such evidence, that should have been an end of the matter. It was impermissible to take account of further evidence designed to contradict evidence before the Tribunal upon which the Tribunal based its decision. 30 The primary judge accepted that the words of s 476(1)(g) must be given their ordinary and natural meaning. However, his Honour went on to say: "To suggest that this ground of review cannot be made out where there is any evidence or other material which might conceivably have justified the making of the decision would be to deprive the section of any meaningful role as a ground of review. It would be to introduce into the words of the section a qualification which is notably absent from it. If an applicant who has otherwise satisfied the requirements of s 476(4)(b) is to be denied relief because the requirements of s 476(1)(g) are not met, it must be because the evidence or other material relied upon to support the decision is of such weight, that, quite apart from the finding of fact which ought not to have been made, it points strongly to the conclusion that the decision was justified." 31 That is not a permissible approach to the operation of s 476(1)(g), as qualified by s 476(4). In order to satisfy the ground contained in s 476(1)(g) it is necessary, but not sufficient, to satisfy the requirements of s 476(4). Section 476(1)(g) requires that there be no evidence or other material to justify the decision. That, however, does not involve a qualitative assessment, in an application to the Court for review, of the evidence and material before the Tribunal. If it did justify such an approach, review by the Court would entail a reconsideration of the weight that should be given to the evidence and other material before the Tribunal. 32 It is not permissible, in order to establish the ground in s 476(1)(g) to adduce evidence to contradict evidence or other material that was before the Tribunal. The weight to be attached to such evidence and material is a matter entirely for the Tribunal. If it were permissible to adduce further evidence before the Court whenever the evidence and material before the Tribunal did not point strongly to the conclusion that the decision was justified, the Court would be called upon to reassess the weight afforded to evidence or other material by the Tribunal. That was clearly not Parliament's intention. 33 The respondents contended that a particular fact on which the Tribunal's decision was based was the fact that the letter from Mr Indatissa's father stated that there were visitors several times for a month and that that fact did not exist. They contended that the requirements of s 476(1)(g) were satisfied, in the circumstances of this case, by the assertion that little weight should have been given to the translation by Mr Jayakody, in the light of the responses given by the interpreter to questions from the Tribunal. 34 Assuming that the asserted fact relied on by the respondents for the purpose of s 476(4)(b) does satisfy the requirements of that provision (which was not conceded by the Minister) and assuming that that fact was shown, by the additional evidence, not to exist, it is still necessary to demonstrate that there was no evidence or other material before the Tribunal from which that fact could be found. That requirement is simply not established in the light of the translation by Mr Jayakody. 35 In any event, a fair reading of the reasons of the Tribunal points to the conclusion contended for by the Minister. The asserted fact, that there were discrepancies in the evidence as to the frequency of stays by Tamils at the respondent's family house, is but one of many factors that led the Tribunal to its conclusion. The other factors may be summarised as follows: · it defies credulity that it would not have occurred to the respondents that Tamils from a zone of long time conflict between the LTTE and government forces might be associated with the LTTE; · Mr Indatissa's claim that he remained unaware of official requirements to register Tamils staying in Colombo defies credulity; · it was implausible that the authorities would interrogate or harm Mr Indatissa's parents a few months after his legal departure; · no action was ever taken against Mr Indatissa before he departed Sri Lanka on his own passport; · Mr Indatissa delayed making an application for a protection visa for a further nine months after he was allegedly told about the difficulties faced by his parents; · it is not credible that LTTE operatives from the north would seek relative sanctuary at the home of a Sinhalese family that has no links to them, except allegedly through Mr Indatissa's former boss; · independent country information disclosed no recent plausible reports of Sinhalese suspected of sympathising with the LTTE; · the fact that Mr Indatissa, having specifically asked a friend who gave evidence, to visit his family would then remain uninformed until the friend gave evidence as to the serious injury to his father indicates that the claim is contrived; · it is implausible that by Mr Indatissa's brother-in-law showing a Victorian licence to authorities allegedly suspecting and monitoring the family, of which the brother-in-law is a member, would satisfy the authorities as to his own innocence; · although the brother-in-law said he observed disturbing events at the respondent's home in early 1997, he neither told Mr Indatissa about them, despite seeing him each month, nor gave any evidence to what he witnessed until a later stage; · the correspondence purportedly from Mr Indatissa's father's treating doctor appears contrived in its tone; · another letter purportedly from an attorney and public notary relied on by the respondents contains a misspelling "natary"; · the contents of four letters from Mr Indatissa's father appear highly contrived and self-serving. In addition to containing details as to the duration of alleged visits by Tamils that was discrepant from Mr Indatissa's own evidence, they contain also a series of claims that are entirely at odds with available country information as to the risk to Sinhalese people of being accused of involvement with the LTTE, even if they had actually accommodated Tamils. The letters were therefore considered to be contrived. 36 All of those matters indicate that there was clearly evidence and other material before the Tribunal that would justify the making of the decision. The ground provided for in s 476(1)(g) was not made out before the primary judge. Accordingly, his Honour erred in concluding that the decision of the Tribunal should be set aside on that ground. The appeal should be upheld and the orders of the primary judge should be set aside. In lieu of those orders there should be an order that the application be dismissed with costs. The respondents should pay the Minister's costs of the appeal. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sundberg, Emmett and Conti. Associate: Dated: 5 March 2001 Counsel for the Appellant: Mr T Cavanough QC Mr C Fairfield Counsel for the Respondents: Mr J Gibson Solicitor for the Appellant: Australian Government Solicitor Solicitor for the Respondents: Erskine Rodan and Associates Date of Hearing: 13 February 2001 Date of Judgment: 5 March 2001