Perera v Minister for Immigration & Multicultural Affairs [2001] FCA 59 (9 February 2001)

Last Updated: 16 February 2001

FEDERAL COURT OF AUSTRALIA

Perera v Minister for Immigration & Multicultural Affairs

[2001] FCA 59

MIGRATION - application for protection visa - Tribunal's conclusions inconsistent with findings of fact - illogical conclusion - reasoning of Tribunal to be shown to be rational - failure of Tribunal to fulfil statutory requirements of review process.

Migration Act 1958 (Cth) ss 5(1), 36(2), 65, 476, 476(1)(a), (b), (c), (e), (g)

Migration Regulations 1994 (Cth)

Dornan v Riordan (1990) 24 FCR 564 referred to

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 applied

PATHIRAGE DON MAHINDA PERERA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 58 OF 2000

LEE J

9 FEBRUARY 2001

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 58 OF 2000

BETWEEN:	PATHIRAGE DON MAHINDA PERERA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEE J
DATE OF ORDER:	9 FEBRUARY 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal be set aside.

2. The matter be remitted to the Tribunal for reconsideration according to law.

3. The respondent pay the applicant's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 58 OF 2000

BETWEEN:	PATHIRAGE DON MAHINDA PERERA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LEE J
DATE:	9 FEBRUARY 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1 The applicant applies under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision made by the Refugee Review Tribunal ("the Tribunal") on 17 March 2000 that a "protection visa" not be granted to the applicant.

2 The applicant is a citizen of Sri Lanka and is now 38 years of age. He arrived at Perth Airport in March 1997 and entered Australia on a "visitors visa". His wife and two daughters, then aged 5 and 2, had arrived in Western Australia on a "visitors visa" in December 1995. His wife's sister was an Australian citizen who resided in Western Australia. The applicant applied for a protection visa for himself and family in July 1997.

3 Section 65 of the Act provides that if after considering an application for a visa the respondent ("the Minister") is satisfied that, inter alia, criteria prescribed by the Act or Migration Regulations 1994 (Cth) ("the Regulations") have been satisfied, the Minister is to grant the visa.

4 Under s 36(2) of the Act, a criterion for the grant of a protection visa is that the applicant be a person to whom Australia has protection obligations under the "Refugees Convention" as amended by the "Refugees Protocol", referred to collectively hereafter as "the Convention". Section 5(1) of the Act defines the "Refugees Convention" as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the "Refugees Protocol" as the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

5 The Tribunal, carrying out the duties of the Minister, was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

6 The grounds of review relied upon by the applicant were the failure of the Tribunal to observe procedures required by the Act to be observed (s 476(1)(a)), and an error of law by the Tribunal in the making of that decision (s 476(1)(e)).

7 Counsel for the applicant submitted, firstly, that the Tribunal erred in law and failed to exercise the function committed to it by the Act when it stated that there was "no evidence before it to establish that the break-in, looting and damage of [the applicant's] house...was motivated by either [the applicant's] actual or imputed political opinion" when there was material before the Tribunal from which such an inference could be drawn.

8 The Tribunal accepted that until 1991 the applicant had been a "strong supporter" of the United National Party ("UNP"). At that time the UNP had governed Sri Lanka for some years. The applicant was involved in distributing leaflets, pamphlets and posters and in fundraising and recruiting members for the party. He also acted as a "bodyguard" when the local UNP Member of Parliament, Mr Athulathmudali, campaigned in that constituency. The applicant was a Chief Organiser of the local branch of the UNP.

9 In 1991 the applicant supported the formation by Mr Athulathmudali of a breakaway party, the Democratic United National Front ("DUNF"). Thereafter, the applicant performed similar functions for the DUNF to those he had carried out as a supporter of the UNP.

10 The Tribunal accepted that the applicant's work for the UNP was well-known and had attracted harassment and death threats from supporters of the opposing Sri Lanka Freedom Party ("SLFP") and that his home had been stoned and "vandalised".

11 In early 1993 Mr Athulathmudali was assassinated. The applicant claimed, and the Tribunal appeared to accept, that threats to the applicant that he would suffer the same fate and vandalism of the applicant's home increased markedly after the assassination. The applicant feared for his safety and that of his family. The applicant and his family left their home to go into "hiding" until "things had settled down". The applicant said that upon returning to their home some time later they found the house had been broken into and damaged and property stolen.

12 If in saying that there was "no evidence before it" that the damage to, and looting of, the applicant's property was "motivated" by the actual or imputed political opinion of the applicant, the Tribunal understood that there had to be direct rather than inferential evidence of such a connection, the Tribunal would have erred in law. But the ground for review of error of law provided by s 476(1)(e) would only arise if it could be said that the Tribunal incorrectly applied to the facts the law relating to a well-founded fear of persecution, and that such error was involved in the ultimate decision of the Tribunal that it was not satisfied that the applicant had a well-founded fear of persecution. That is to say, it must be seen that the decision of the Tribunal was affected by that error. The question whether the damage caused to the applicant's residence in 1993, whilst the applicant was absent, was inspired by the perceived political opinions of the applicant, was a minor part of the case which the applicant put before the Tribunal. Any view formed by the Tribunal on that question was not material to the ultimate determination made by the Tribunal. Accordingly, the first submission cannot succeed.

13 The applicant further submitted, however, that the Tribunal erred in law as follows.

14 After Mr Athulathmudali's assassination, his widow took the deceased's place as a member of parliament and as leader of the DUNF. The applicant continued to support Mrs Athulathmudali and the DUNF after he returned to the family home but he kept a "low profile" thereafter.

15 In early 1994 the DUNF disintegrated and a group led by Mrs Athulathmudali under the acronym NDUNLF, went into coalition with the SLFP and the Peoples Alliance Party ("PA"). The remaining members of the DUNF returned to the UNP. In a general election in August 1994 the PA coalition replaced the UNP as the governing party.

16 When the split occurred in the DUNF, the applicant opposed the shift in political allegiance undertaken by Mrs Athulathmudali and he did not support the NDUNLF. The applicant said that in 1994 he was assaulted on three occasions by "PA people". A number of threats were made to the family and his home was stoned on numerous occasions.

17 The applicant left a family business in electrical contracting and retailing in electrical goods in Sri Lanka in December 1994 and went to Japan where he obtained employment. The applicant claimed he left Sri Lanka in fear for his safety. As noted earlier, his wife and children departed Sri Lanka in December 1995 to visit the wife's sister in Australia and have remained here. The applicant returned to Sri Lanka from Japan in November 1996. He said that he was harassed by PA supporters from February 1997. He left Sri Lanka for Hong Kong in March 1997 where he obtained a visitors visa to enter Australia.

18 The Tribunal did not accept that the applicant was harassed by PA supporters in February 1997 but as discussed below the reasons provided for that finding involve an internal inconsistency.

19 The Tribunal found that the applicant did not approve of Mrs Athulathmudali's support of the PA and that "he was not a supporter of the UNP or the NDUN[L]F or the DUNF after 1994". The description "after 1994" in that passage must refer to the period after the formation of the NDUNLF in 1994. The evidence before the Tribunal was that Mrs Athulathmudali took the NDUNLF into the elections in August 1994 as a supporter of the PA coalition.

20 The Tribunal stated that it was prepared "to give [the applicant] the benefit of the doubt" in respect of the claims of assault and harassment he and his family suffered at the hands of PA supporters during the 1994 election campaign. If the Tribunal accepted that those events occurred as claimed by the applicant, it could not be said that the applicant was seen by PA supporters to be a supporter of the NDUNLF, or of the PA, in August 1994. The finding by the Tribunal that "there is no real chance that...[the applicant] would now be persecuted by the PA supporters for supporting one of their coalition partners [or at least a predecessor of it]" is not consistent with the facts accepted or found by the Tribunal.

21 In respect of the applicant's claims as to later events, the Tribunal made the further finding that it rejected the applicant's claims to have been threatened and harassed "after 1994" (by which the Tribunal means February 1997) and based that finding on the fact that the applicant had ceased political activity and had given support to Mrs Athulathmudali's party "siding with the PA". The latter "fact" relied upon was not a fact found by the Tribunal. As stated above, the Tribunal found earlier in its reasons that the applicant did not approve and did not support the formation of the NDUNLF by Mrs Athulathmudali nor the alliance Mrs Athulathmudali formed with the SLFP in the PA coalition. Furthermore, the Tribunal had accepted that the applicant was attacked by PA supporters in the campaign leading up to the August 1994 election that was contested by the NDUNLF as part of the PA coalition.

22 The Tribunal made no findings on the state of affairs in Sri Lanka at the time of its decision. There was material before the Tribunal that suggested that at the time the applicant applied for a protection visa in July 1997, PA supporters had continued to be responsible for a number of assaults upon, and the assassination of, political opponents. The Tribunal went no further than to say that the applicant's fear of persecution at the hands of PA supporters "should have gone as soon as [Mrs Athulathmudali] supported the PA and therefore gained the protection of the Government for her supporters (as well as them no longer being targets of the PA supporters)". As noted above, that was inconsistent with relevant findings of fact made by the Tribunal on the issue and represented an illogical conclusion.

23 The question the Tribunal had to address was whether, on the facts as found or accepted, there was a real chance that the applicant may suffer persecution for a Convention reason. The Tribunal appeared to accept that the actions of PA supporters involving harassment, assault and intimidatory threats to the applicant and his family did amount to such persecution, being conduct engaged in by reason of the perceived political opinion of the applicant. The remaining question was whether there was any real prospect that such conduct might occur again if the applicant were returned to Sri Lanka. The Tribunal restricted its consideration of that question to saying that it was satisfied that there was no real chance of such an occurrence because the applicant was perceived by PA supporters to be a supporter of the PA coalition through his support for Mrs Athulathmudali's NDUNLF party. That involved a non sequitur and the reasoning of the Tribunal did not meet the requirements of the Act that the decision be made, and shown to be made, by a rational process. (See: Dornan v Riordan (1990) 24 FCR 564.) The Tribunal failed to carry out the review process required of it by the Act and ground for review of the decision purportedly made is established under s 476(1)(b), (c), (e) or (g) of the Act. (See: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 per Gummow J at [154].)

24 There was sufficient material before the Tribunal to raise for adjudication by the Tribunal the question whether the applicant had a well-founded fear of persecution. Therefore, an order returning the matter for re-determination by the Tribunal would not lack utility.

25 The decision of the Tribunal must be set aside and the matter remitted to the Tribunal for reconsideration according to law.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated:

Pro Bono Counsel for the Applicant:	A J Goldfinch
Solicitor for the Applicant:	Goldfinch & Co
Counsel for the Respondent:	M T Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 October 2000
Date of Judgment:	9 February 2001