FEDERAL COURT OF AUSTRALIA SRL v Minister for Immigration & Multicultural Affairs [2001] FCA 765 MIGRATION – review of RRT decision to affirm Minister's decision to refuse to grant protection visa – whether ground of review contained in Migration Act 1958 (Cth)s 476(1)(g) as read with s 476(4)(b) enlivened – whether no evidence or other material to justify making of decision – whether prediction as to future a "particular fact" within meaning of Migration Act 1958 (Cth)s 476(4)(b). Migration Act 1958 (Cth) ss 476(1)(g), 476(4)(b) Mohammed Rasel v Minister for Immigration & Multicultural Affairs [2001] FCA 443 approved L Jaffe Judicial Control of Administrative Action 1965 at p 548 S A de Smith Judicial Review of Administrative Action 2nd ed 1968 p 114; 5th ed 1995 p 277 SRL v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1373 of 2000 SUNDBERG, FINKELSTEIN & KATZ JJ 28 JUNE 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1373 of 2000 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SRL APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGES: SUNDBERG, FINKELSTEIN & KATZ JJ DATE OF ORDER: 28 JUNE 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1 The appeal be dismissed. 2 The appellant pay the respondent's costs of the appeal. 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 1373 of 2000 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SRL APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGES: SUNDBERG, FINKELSTEIN & KATZ JJ DATE: 28 JUNE 2001 PLACE: SYDNEY REASONS FOR JUDGMENT SUNDBERG J 1 I agree with the reasons given by Katz J and with the orders that he proposes. I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Date: 28 June 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1373 of 2000 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SRL APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGES: SUNDBERG, FINKELSTEIN & KATZ JJ DATE: 28 JUNE 2001 WHERE MADE: SYDNEY REASONS FOR JUDGMENT FINKELSTEIN J 2 I agree with Katz J, except in one respect. He is of opinion that a prediction as to the future cannot be a "particular fact" for the purposes of s 476(4)(b). The distinction between findings of fact and findings of law is important in many areas of the law, including the law relating to judicial review. In that area a number of commentators accept that a finding in relation to a future event can be a finding of fact. For example, L Jaffe in "Judicial Control of Administrative Action" 1965 at p. 548 writes: "A finding of fact is the assertion that a phenomenon has happened or is or will be happening independent of or anterior to any assertion as to its legal effect". This passage was approved by S A de Smith, "Judicial Review of Administrative Action" 2nd ed. 1968 at p. 114; see now the 5th edition, 1995 at p.277. I subscribe to this view, at least in the area of discourse with which this case is concerned. Accordingly, if made, each of the following findings would be of a fact: "Recently X bought a motorbike" (a past fact); "X's husband, Y, does not like motorbikes" (a present fact); "If given the chance, Y will sell X's motorbike" (a future "fact" or prediction). I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Date: 28 June 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1373 of 2000 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SRL APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGES: SUNDBERG, FINKELSTEIN & KATZ JJ DATE: 28 JUNE 2001 WHERE MADE: SYDNEY REASONS FOR JUDGMENT KATZ J: 3 There is before the Court an appeal from a judgment of a Judge of the Court (Stone J), which judgment was pronounced on 7 December 2000. By that judgment, the primary Judge dismissed an amended application which had been made to the Court under subs 476(1) of the Migration Act 1958 (Cth) ("the Act") by a male person identified before her (and on the present appeal) as SRL. That amended application had been one for review of a decision which had been made by the Refugee Review Tribunal ("the RRT"). By its decision, the RRT had dismissed an application which had been made to it for review of a decision which had been made by a delegate of the Minister for Immigration & Multicultural Affairs that SRL was not entitled to the grant of a protection visa. 4 The application which commenced the proceeding before the primary Judge having been filed on some earlier date, solicitors then acting for SRL filed, on 13 November 2000, the amended application for review. That amended application alleged that the RRT's decision had enlivened four of the grounds of review set out in subs 476(1) of the Act, namely, those set out in pars (a), (c), (e) and (g) of that subsection. As to par 476(1)(a) of the Act, it was claimed that, in two respects, the RRT had not observed procedures that were required by the Act to be observed in connection with the making of the decision. As to par 476(1)(c) of the Act, it was claimed that, in two respects, the decision had not been authorised by the Act or regulations made thereunder. As to par 476(1)(e) of the Act, it was claimed that, in five respects, the decision had involved errors of law. Finally, as to par 476(1)(g) of the Act, it was claimed that there had been no evidence or other material to justify the making of the decision, the sole particular of that ground being stated to be: "The Tribunal based the decision on a particular fact, being that protection would be forthcoming from the Sri Lankan police were the applicant to seek it, and that fact did not exist". 5 On 22 November 2000, at the hearing before the primary Judge of SRL's amended application, counsel with considerable experience in the presentation of applications under subs 476(1) of the Act appeared for SRL. Counsel appearing for SRL chose at the hearing both to abandon all reliance on the grounds of review set out in pars 476(1)(a) and (c) of the Act and to abandon all of the particulars which had been relied on in the amended application in connection with the ground set out in par 476(1)(e) of the Act. Counsel for SRL persisted, however, with the challenge to the RRT's decision in reliance both on the ground set out in par 476(1)(g) of the Act and on the particular of that ground relied on in the amended application. Counsel for SRL was also permitted by the primary Judge to argue that the RRT's conclusion that "protection would be forthcoming from the Sri Lankan police were the applicant to seek it" meant that the RRT's decision had involved an error of law of the second type set out in par 476(1)(e) of the Act. 6 Both of the grounds ultimately relied on by counsel for SRL before the primary Judge had related to the RRT's conclusion that if SRL, a Sri Lankan national of Singhalese ethnicity, were to return to Sri Lanka, he would there have access to effective State protection if he were again to be threatened by members of the People's Alliance ("the PA"), as he had apparently been in the past. SRL had himself been involved with the United National Party ("the UNP"), a rival political party to the PA, although the RRT found both that his involvement with the UNP had been "minimal, sporadic and low level" and that "he ha[d] no interest in being political[ly] active upon return to Sri Lanka". (It will be apparent from what I have already said above that those findings by the RRT concerning both the nature of SRL's past involvement with the UNP and his political intentions for the future were not, at the hearing before the primary Judge, the subject of complaints of judicially-reviewable error.) 7 For reasons which will become apparent below, it is unnecessary in these reasons for judgment to set out the way in which the primary Judge dealt with the submissions of SRL's counsel regarding the ground of review set out in par 476(1)(e) of the Act. 8 So far as concerns the way in which the primary Judge dealt with the submissions of SRL's counsel regarding the ground of review set out in par 476(1)(g) of the Act, the primary Judge accepted that the RRT's conclusion that SRL would have access to effective State protection in Sri Lanka was a particular fact on which the RRT's decision had been based, within the meaning of par 476(4)(b) of the Act. Her Honour held, however, that there had been evidence before the RRT to justify the making of its decision, in particular, the independent country information regarding Sri Lanka on which the RRT had relied. The primary Judge therefore rejected the challenge to the RRT's decision based on par 476(1)(g) of the Act. 9 The notice of appeal which began the present proceeding was filed by SRL in person and it is apparent from the terms of that notice of appeal that it had not been prepared by a legal practitioner. Although the notice does contain material under the heading "Grounds", the notice does not set out grounds of appeal in the accepted sense, but rather sets out extensive submissions. It is unnecessary either to repeat or to summarise those submissions in these reasons for judgment, although I do note that they begin by stating that the appellant does "not disput[e] that the Tribunal identified the correct legal principles and applied those principles to findings of fact that were open to it on the evidence". 10 The reason why it is unnecessary either to repeat or to summarise in these reasons for judgment the submissions set out in the notice of appeal is that that material was overtaken by a later document formally constituting the appellant's written submissions on the appeal, which written submissions sought to raise a great many claims of judicially-reviewable error on the part of the RRT in the making of its decision regarding SRL. 11 On the hearing of his appeal, although SRL was not represented by a lawyer, he was, by leave, represented by a person who is a law student. At the outset of the hearing of the appeal, SRL's representative, who presented SRL's appeal both with ability and fairly, acknowledged that the Court's leave was required before he could press almost all of the claims of judicially-reviewable error sought to be relied on in his written submissions, the only exception being his submissions regarding par 476(1)(g) of the Act, which submissions were similar to those which had been put to, and rejected by, the primary Judge. 12 After hearing argument on the question, the Court, for reasons which it then gave, permitted SRL's representative to argue on the appeal only that the primary Judge had erred by rejecting the grounds and the particulars thereof relied on by SRL's counsel at the hearing before the primary Judge. SRL's representative then chose to limit his submissions on the appeal to the ground of review set out in par 476(1)(g) of the Act and to the particular of that ground which had been relied on in the amended application for review. 13 It is trite law that, in order to succeed on the ground of review set out in par 476(1)(g) of the Act, when read together with par 476(4)(b) of the Act, an applicant must identify some "particular fact" on which the decision-maker's decision was "based", within the meaning of par 476(4)(b) of the Act. The applicant must then establish, by evidence admissible according to the rules of judicial evidence, that that fact did not exist. Additionally, the applicant must establish that there had been no evidentiary material before the decision-maker on which it had been open to the decision-maker to find that that particular fact did exist. 14 As I have already mentioned above, the primary Judge proceeded on the basis that SRL had satisfied the first of the three requirements which I have just set out, but held that SRL had failed to satisfy the third of those three requirements. (I add that the primary Judge also held that SRL had failed to satisfy the second of those three requirements.) 15 It is convenient now to turn to the RRT's statement of findings and reasons. In that statement, the RRT expressed itself as satisfied that there would be effective State protection available to SRL upon his return to Sri Lanka and then, by way of elaboration of that matter, stated (numbering added; emphasis in original), "… the Tribunal is satisfied that even if, as claimed by the applicant and his representative, there is some on-going interest in the applicant by these individuals [that is, individuals from the PA], and if the applicant were to return to his political activities in Sri Lanka, … there is effective state protection for the applicant. The Tribunal is supported in this finding by the independent [evidence] cited above which suggests [1] that the President herself [that is, President Kumaratunga, of the PA], has in the past [cracked down] and has every intention in the future, of cracking down on members of her party who behave in a 'thuggish' manner, [2] that members of the PA have been arrested by the police in the past for such behaviour, and the independent evidence also indicates [3] that members of all parties [the UNP included] have equal access to the law and to police protection." 16 The source of the independent evidence to which the RRT was referring in the passage from its statement of findings and reasons just set out was the Australian Department of Foreign Affairs and Trade ("DFAT"). Earlier in its statement of findings and reasons, the RRT had set out the DFAT information to which I refer in the following four paragraphs of these reasons. 17 In December 1996, DFAT had advised (emphasis in original) that, in the 1994 Sri Lankan elections, there had been, "… few incidents of violence, relative to previous elections. There had been some fears that an Opposition [that is, PA] election victory might lead triumphant PA supporters to avenge violent incidents in the past by engaging in violence against UNP members and their supporters in the period immediately following the elections, but in the event almost no such incidents occurred. The President has used various platforms to speak out against political violence. Since the 1994 general election, politically motivated violence has decreased considerably compared to the days of the Premadasa [that is, UNP] presidency. Occasional incidents of violence have continued to occur, and in April and August of 1996 there were a couple of well-publicised incidents, in which both PA and UNP supporters were injured or killed. Supporters of both the PA Government and the Opposition UNP have been detained and questioned." DFAT had advised at the same time that none of the reports of political violence had alleged that the Government itself was supportive of, or even turning a blind eye to, violent actions by PA members or supporters against UNP members. DFAT had also advised at the same time that claims of political harassment of UNP members and supporters should be viewed with suspicion and that all parties had equal access to the law and to police protection. 18 In February 1998, DFAT had advised that its assessment of the situation for UNP members and supporters, so far as political violence against them was concerned, had not changed. 19 In early March 1999, DFAT had advised that President Kamaratunga had announced that she would take action against members of her party who engaged in violence in the lead-up to the five provincial council elections to take place in April. 20 In mid-March 1999, DFAT had advised: "One of the PA's main campaign platforms in 1994 was an end to the political violence that had increased under the UNP government. The extensive coverage in the media about election violence during a recent provincial council election was of considerable concern to the president, who had campaigned strongly against election violence during the 1994 parliamentary election and was commended for controlling post-election violence. The president has publicly warned her party members and supporters that action will be taken against any found responsible for violence in the forthcoming provincial elections." 21 In my view, the DFAT material to which I have referred above had indeed suggested that the President had in the past cracked down on thuggery by PA members, that the President intended to continue doing so in the future, that PA members had been arrested for thuggery in the past and that the members of the UNP had access to police protection equal to that of members of other parties, including the PA. The existence of that material meant, as the primary Judge held, that it had been open to the RRT to find that if SRL were to return to Sri Lanka, he would there have access to effective State protection if he were again to be threatened by members of the PA. 22 As I understood the submissions made on SRL's behalf on the appeal, it was in substance submitted that it had not been open to the RRT on the basis of the DFAT material to which I have referred above to find that if SRL were to return to Sri Lanka, he would there have access to effective State protection if he were again to be threatened by members of the PA. That was because the DFAT material had been general in its nature. It had not been specific to SRL nor had it dealt with persons in a situation materially identical to his. 23 However, such a submission was in truth directed, not to whether it had been open to the RRT to find that if SRL were to return to Sri Lanka, he would there have access to effective State protection, but rather to the merits of the RRT's finding in that respect. 24 In light of my conclusion that the primary Judge was correct to conclude that there had been evidentiary material before the RRT from which it had been open to the RRT to find that SRL would have access to State protection if he were to return to Sri Lanka, it is obviously my view that SRL's appeal must fail. 25 However, I do wish to record my further view that, in proceeding on the basis that SRL's having access to State protection if he should return to Sri Lanka was a "particular fact" within the meaning of par 476(4)(b) of the Act, the primary Judge erred on the side of generosity towards SRL. In Mohammed Rasel v Minister for Immigration & Multicultural Affairs [2001] FCA 443 (20 April 2001, unreported) at [20]-[22], I gave my reasons for concluding that a prediction as to the future cannot be a "particular fact" within the meaning of par 476(4)(b) of the Act. A conclusion that SRL would have access to State protection if he were to return to Sri Lanka is such a prediction as to the future. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz. Associate: Date: 28 June 2001 Representative for the Appellant: Mr E Rajadurai Counsel for the Respondent: Mr D Jordan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 June 2001 Date of Judgment: 28 June 2001