Ariyasinghe, Ex parte - Re Min for Immigration & Anor B41/2000 [2000] HCATrans 568 (14 September 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B41 of 2000

In the matter of -

An application for Writs of Prohibition, Mandamus, Certiorari and Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

JANET WOOD

Second Respondent

Ex parte -

SASTHA SANJAYA ARIYASINGHE

Applicant

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON 14 SEPTEMBER 2000, AT 10.32 AM

Copyright in the High Court of Australia

MR D.C. RANGIAH: I appear for the applicant. (instructed by Nicol Robinson Halletts)

MR R.M. DERRINGTON: May it please your Honour, I appear on behalf of the first and second respondents, although the second respondent filed a notice of appearance but will, of course, abide the order of this Court. (instructed by the Australian Government Solicitor)

HIS HONOUR: Thank you, Mr Derrington. Yes, Mr Rangiah.

MR RANGIAH: I read the affidavit of Fraser Syme which has been filed. I do not have the filing date, I am afraid.

HIS HONOUR: Yes, I have got that affidavit, Mr Rangiah.

MR RANGIAH: A draft order nisi was filed, or at least lodged. I have prepared an amended draft order nisi and can I hand up the draft order nisi and my outline of submissions in a bundle of cases?

HIS HONOUR: Yes, all right. Thank you, Mr Rangiah. Would you like me just to read these for a moment?

MR RANGIAH: Yes, thank you.

HIS HONOUR: Mr Rangiah, what is the date upon which the Full Federal Court decided Baljit Kaur Singh.

MR RANGIAH: It is 30 June.

HIS HONOUR: 30 June. I think we might have the point reserved, you know.

MR RANGIAH: The High Court?

HIS HONOUR: Yes.

MR RANGIAH: Yes, that is so, your Honour. There are two - - -

HIS HONOUR: In Aala, I think is one of the cases, is it not?

MR RANGIAH: I think there is a decision called Israelian which is one and I just for the moment cannot think of the name of the other one but special leave has been granted in two cases, but after the special leave - - -

HIS HONOUR: So, special leave has been granted in two. I do not think I sat on those applications.

MR RANGIAH: No, I do not think you did, your Honour.

HIS HONOUR: Where were they heard, in Sydney or Melbourne?

MR RANGIAH: I think it was in Sydney. I think, from recollection, Justices Kirby and Gaudron were involved in either one or both of those. Special leave was granted before the decision of the Full Federal Court and the High Court was aware that the Full Federal Court decision was pending.

HIS HONOUR: Pending, yes. I am just wondering whether it might not be better to adjourn your application until those cases are decided.

MR RANGIAH: I have to accept some merit in that course - - -

HIS HONOUR: I do not know, I have an idea we may have considered the point in another case in which we have not given judgment, a case of Aala.

MR RANGIAH: Yes, I am not aware of that.

HIS HONOUR: I am just getting my associate to get down the papers in that - because, your point is a very narrow one, really, is it not?

MR RANGIAH: Yes.

HIS HONOUR: One episode, which your submission is, is a very important episode that called for an express finding and no finding was made on it and, therefore, there was a failure to take into account a relevant matter.

MR RANGIAH: Yes.

HIS HONOUR: It is no broader than that, is it, and it just goes to one incident, is that correct?

MR RANGIAH: Yes, it is simply a failure to deal with, in the reasons, one incident.

HIS HONOUR: Yes.

MR RANGIAH: There are two aspects of it, of course. One is an alleged breach of section 430(1)(c) of the Act and the second is a failure to take into account a relevant consideration.

HIS HONOUR: Yes.

MR RANGIAH: I have to accept that if the decisions of the High Court, in Israelian and the other case, fall in a particular way and the scope of section 430 is limited, then it will at least destroy one aspect of my client's application.

HIS HONOUR: Yes. Let me just see what Mr Derrington has to say about this preliminary aspect of the matter.

MR DERRINGTON: Your Honour, with respect to the draft order nisi, the new one, can I hand your Honour an outline of submissions which was prepared hastily. We only saw the draft this morning.

HIS HONOUR: Yes, certainly, I will look at those, but what about the matter I have just asked Mr Rangiah about?

MR DERRINGTON: Well, because the draft - because my outline deals with that point. The point is simply this, section 430(1), and a breach of it by failing to set out in the reasons of the Review Tribunal a specific finding relating to a material fact will, as the law now stands after the Full Court of the Federal Court decided, amount to a ground of review under the Act which the Federal Court can rely upon or can use to set aside the decision or quash it or send it back. It does not, however, amount to a jurisdictional error founding the ground of relief by way of any of the prerogative writs. That was decided by his Honour Mr Justice McHugh in the decision of Singh v The Minister for Immigration.

HIS HONOUR: I think I referred to Singh in a case in which Mr Rangiah appeared before.

MR DERRINGTON: I am sorry, no, it was Durairajasingham.

HIS HONOUR: Is that right, Mr Rangiah, I think I referred to that in another case that you had before me?

MR RANGIAH: Yes. The case that your Honour dealt with was the matter of Colombage.

HIS HONOUR: Yes, and I, in effect, applied what Justice McHugh had said in the case that Mr Derrington is referring to, is that right.

MR RANGIAH: Yes. Your Honour found on the facts, though, that the Tribunal had made a finding in relation to the matter which my client complained of.

HIS HONOUR: Yes, I did. Yes, you are quite right.

MR DERRINGTON: Indeed, your Honour, so there is no jurisdictional error simply from the fact that section 430(1) was not complied with by the RRT. So, if one takes it on the theoretical basis - assuming for the present purposes that it was not dealt with by the RRT - then there is no jurisdictional error found in the grant of the prerogative writs. That being the case, no certiorari or mandamus or prohibition will issue.

HIS HONOUR: Just remind me why Justice McHugh said that was so.

MR DERRINGTON: This was simply because section 430(1) of the Act sets out a procedure by which the Tribunal must prepare its decision, or that is what is now said, it prepares its decisions in that fashion. It is actually set out in my submission. Perhaps if I could find a way to get them from the bar table to your Honour.

HIS HONOUR: Ask your instructing solicitor to bring them up.

MR DERRINGTON: Yes, thank you, your Honour.

HIS HONOUR: Thank you. Perhaps I should read these, Mr Derrington.

MR DERRINGTON: Thank you, your Honour.

HIS HONOUR: You can sit down.

MR DERRINGTON: Thank you, your Honour.

HIS HONOUR: Yes, thank you.

MR DERRINGTON: And the answer directly to your Honour's question is in the part quoted from Justice McHugh on the second-last page halfway down, that it is not a jurisdictional error. Now, that has not been doubted, such that the position then is that, in respect of the orders nisi that are sought, there is no basis for, regardless of the way in which any appeal to the Full Bench of this Court would resolve itself, it will not make any difference to this case, because that issue, as far as I understand it, is not part of - - -

HIS HONOUR: All right. I should hear from Mr Rangiah. Have you seen Mr Derrington's outline?

MR RANGIAH: Yes I have, your Honour. Can I make two points in response to my friend's submissions.

HIS HONOUR: You just feel free to argue whatever you wish to argue now, because I do not think I should adjourn the matter; certainly not at this stage.

MR RANGIAH: All right. I might just make a couple of brief points while we are on the topic and then return to that later. Firstly, Durairajasingham establishes that jurisdictional error is not required in order to obtain injunctions and the draft order nisi seeks injunctions as well as prerogative relief. Secondly, a failure to take into account a relevant consideration is clearly a jurisdictional error both on the authority of Durairajasingham and Craig, and prerogative relief is available, if your Honour decides that there was a failure to take into account a relevant consideration.

HIS HONOUR: There may be a distinction between a failure to take into account a relevant consideration and a failure to make a specific finding in relation to a particular matter; they may not be the same thing.

MR RANGIAH: Yes, your Honour.

HIS HONOUR: It may be a problem to you, you see.

MR RANGIAH: Yes. I accept that there is a distinction between the two and that distinction was made clear by Justice McHugh in Durairajasingham and perhaps I will deal with that in due course. Your Honour, can I first take you to the material which is relevant in the affidavit of Mr Syme and in particular to exhibit D first.

HIS HONOUR: What is that document?

MR RANGIAH: It is a submission prepared by the South Brisbane Immigration Community Legal Service.

HIS HONOUR: Yes, I think I have got that.

MR RANGIAH: Can I ask your Honour to read paragraphs 12 to 19.

HIS HONOUR: Yes.

MR RANGIAH: Your Honour, as you would have no doubt realised by now, my client's case for a protection visa was essentially that he had been a member of a political organisation known as the JVP; it became illegal; he came to the attention of the police; he then desisted from involvement with the JVP. In 1994 it became legal again, with a change of government - - -

HIS HONOUR: And then he is harassed by the JVP Party because he would not rejoin.

MR RANGIAH: Yes, that is essentially it, and then the police refused to protect him, because he had previously been involved with the JVP, and the material that I have just taken you to are the instances of the threats that he received from the JVP, and your Honour will see that they are essentially in three parts: one is that on five or six occasions he was accosted on a road by persons who threatened him; secondly, there was some anonymous letters delivered to the school at which he worked. Now I should say, to make it clear, that the Tribunal found both of those groups of allegations to be incredible. The complaint, however, that is agitated before this Court is that the Tribunal's reasons simply did not make any finding in relation to the incident referred to in paragraph 18 as occurring on or about 12 April 1997.

HIS HONOUR: Mr Derrington puts against that in paragraph 6(e) in his submissions that there was, as I understand it, a dealing in general terms by the Tribunal with, if I can call them that, road incidents, and in sufficiently wide terms to embrace the particular incident that you are referring to. I think that is the substance of what he puts. How do you respond to that?

MR RANGIAH: Well, could I respond in two ways: first of all, I accept that there was an overall finding of an absence of credit in his allegations. However, a finding on the ultimate fact does not relieve the Tribunal of its obligation to make specific findings on each material question of fact, which is required by section 430(1)(c) and the complaint is that there was no specific finding of fact in relation to the incident on 12 April 1997. Can I take your Honour to exhibit E to make good that submission. Can I take you first to page 7.

HIS HONOUR: Yes.

MR RANGIAH: Your Honour will see in the last paragraph of page 7 there are references to the threats that were made, and that goes over onto page 8, and the third last paragraph on page 8 deals with the incident in April 1997.

HIS HONOUR: Yes.

MR RANGIAH: Now that is the last reference in the reasons to that incident and I should just say that it comes under the heading, which is given on page 4, of "Claims and Evidence", so the member of the Tribunal is setting out the claims made and the evidence given. Then, on page 20 there is the heading "Recent harassment by the JVP" and the Tribunal there deals with its findings and reasons in relation to the harassment by the JVP. First of all, the Tribunal, in the first two paragraphs, discusses difficulties it has with my client's credit and his claims, and then, in the second-last paragraph, which begins "The Tribunal found the Applicant's account", et cetera, that is where it specifically deals with allegations of the threats that were made. Your Honour will see that it says that:

The Tribunal found that the applicant's account of how these threats that were made against him to be unconvincing. First of all, those who threatened him were largely unknown to him. He gave evidence that he had a friend who urged him to re-join and who seems to have extorted money from him but the main source of the threats was unknown. Given that the JVP was a political entity at the time the alleged threats were made, it is not clear why the Applicant was accosted by unknown people. The Tribunal also has taken into account that the incidents allegedly took place when he was alone on roads near his village.

So, in my submission, the sentences that precede that refer to the incidents he alleged occurred on roads near his village, which is the first of the three categories of incidents. Then it says:

While the Tribunal must not be too ready to disbelieve, the `unknown people on a lonely stretch of road' is not convincing.

And then the next sentence deals with his claim about the letters and the remainder of the paragraph deals with the claims about the letters and then the last paragraph deals with it generally. But there is simply no reference at all in there to the incident on 12 April 1997. The last sentence on page 20 is relevant, because it says:

To find that the claim of threats from the JVP are unconvincing is to find that his core claim to need protection in Australia is not sustainable.

On one view it might be thought that that sentence encompasses a finding on the incident of 12 April, but, in my submission, the cases to which I will take your Honour establish that section 430(1)(c) requires specific findings in relation to each of the incidents, which are said to constitute - - -

HIS HONOUR: They are Federal Court decisions, are they not?

MR RANGIAH: Yes, they are, your Honour. In particular Singh, which is the five judge bench, and Yusuf, established that proposition which I have made.

HIS HONOUR: There has to be a view formed that a matter is material.

MR RANGIAH: Yes, your Honour. The cases also refer to the question of how the materiality of a question is to be determined and perhaps it would be useful if I took your Honour to the cases at this stage. Or, perhaps before I move onto that, I should just say that the last part of the Tribunal's decision that I was going to point out to your Honour was on page 22, in the second-last paragraph.

HIS HONOUR: I just want to make sure I understand your submission, Mr Rangiah. The relevant incident is referred to - is that at page 8, third-last paragraph.

MR RANGIAH: Yes.

HIS HONOUR: The Applicant described further threatening incidents. Is that the incident that "once in April 1997", or is it something else?

MR RANGIAH: No, that is the one, because it says, "including once in April 1997 when a man came to his home and threatened his family", that is the one that I rely on.

HIS HONOUR: Right. But you say it was a visit to his home.

MR RANGIAH: Yes, or his parent's home.

HIS HONOUR: Parent's home. Well, if you go to page 20 under the heading "Recent harassment by the JVP":

The Tribunal discussed with the Applicant the problems in accepting that unknown people would pressure him so much to re-join the JVP.

So that this was an unknown person who visited him at his parent's home?

MR RANGIAH: Yes.

HIS HONOUR: So that the Tribunal is there recounting that it put to the applicant that there were problems about those matters and then lower down:

The Tribunal found the Applicant's account of how these threats were made against him to be unconvincing.

Well, why would not that finding embrace the threat that was made at his parent's home, that the Tribunal was just not convinced about that. It was not convinced about any of the threats and the visit to the home was the occasion of one of the threats.

MR RANGIAH: Further down in that last paragraph your Honour pointed to it says:

The Tribunal also has taken into account that the incidents allegedly took place when he was alone on the roads near his village.

In my submission, the incidents that are referred to - - -

HIS HONOUR: But the incidents may be different from the threats or perhaps the expressions are being used interchangeably. Let me just put this to you, how tentatively it strikes me. The visit to the home is the occasion of a threat, on any view.

MR RANGIAH: Yes.

HIS HONOUR: That opening sentence in that paragraph on page 20, the second-last paragraph, is a reference capable of being read comprehensively as a reference to all the relevant threats, including the one at the home. Why is not that possible? Indeed, why is that not so?

MR RANGIAH: In order to reach that conclusion your Honour would have to draw that inference from the reasons, in the absence of any explicit statement, that it takes it into account - - -

HIS HONOUR: But why would I not, Mr Rangiah, particularly when earlier there has been a specific reference to this threat. So that the Tribunal has not overlooked it, the Tribunal has actually referred to it. It is a matter that the Tribunal has referred to, specifically, in the same way as it has referred specifically in the narration of the facts to a number of other incidents and then, when the Tribunal comes to deal with the matters and to reach its decision, instead of treating each of them singly the Tribunal groups them together and includes the incident that you want to rely upon as one of the threats found to be unconvincing.

MR RANGIAH: Your Honour, it has dealt specifically with the other incidents - - -

HIS HONOUR: But, also, let me say this to you, Mr Rangiah. If the Tribunal disbelieves your client with respect to the occurrence of incidents on lonely roads, it seems to me to follow almost inevitably that the Tribunal would disbelieve him in relation to an incident which is said to have occurred at a place where the threats might have been observed by other people. The relevant finding might be simply that your client's evidence is not credible and that is a material finding that covers every incident which he wants to rely upon.

MR RANGIAH: If that is what the finding is, then it is not stated explicitly and, in my submission, it does not amount to a finding, then.

HIS HONOUR: But the Tribunal does not have to refer to every incident that your client gives an account of and then, when the Tribunal comes to give its reasons, it just does not have to set out a catalogue of the incidents and say, "Found, not found, convincing, unconvincing". Surely the Tribunal does not have to do that.

MR RANGIAH: It does not have to do it in so far as the matters about which evidence was given by my clients are not material questions of fact but if they are material questions of fact then, in my submission, it is bound to make a finding on each one of those. Can I just answer one of the questions which your Honour posed to me?

HIS HONOUR: Yes, certainly.

MR RANGIAH: That is that your Honour questioned why it would not be inevitable that once an adverse finding of credit had been made in relation to the threats on the road the same finding would not be made in relation to the incident in the house. In relation to the house, at least part of the evidence indicated that a complaint had been made to the police about the incident at the house and before the Tribunal there was produced evidence of that complaint to the police. In relation to only one of the incidents on the road had a complaint been made to the police and in relation to the ones before that there had been no complaint, so, it may have made a difference. Had the Tribunal specifically considered this incident, it may have reached a different conclusion on whether the threat actually occurred. It may be useful if I take you to the decision in Singh.

HIS HONOUR: Yes.

MR RANGIAH: You should have a copy of it in the bundle of cases which I handed up. I think it should be the first case in the bundle.

HIS HONOUR: Thank you. Yes.

MR RANGIAH: Can I start with paragraph 47?

HIS HONOUR: Was this a unanimous decision?

MR RANGIAH: No, your Honour, Justice Kiefel gave a separate judgment, but four of the five judges gave a joint judgment. Paragraph 48 is also relevant. Then, paragraph 50 which refers to your Honour's judgment in Eshetu. If I can ask your Honour to read right down to the end of paragraph 57?

HIS HONOUR: Yes.

MR RANGIAH: Can I point out, first of all, that in paragraph 53 it is said:

The view has been consistently taken in the past that where, for example, the well-founded fear of persecution is said to derive from past experiences, s430(1)(c) obliges the RRT to set out its findings in relation to those claims because of their relevance to the ultimate question.

I accept that it does not say in relation to each of those claims but there is a different decision which has been approved by Singh which suggests that each of those claims must be addressed. At paragraph 56 it was said:

Accordingly if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one.

In the last sentence in paragraph 57 it was said:

A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists.

In this case where the question which the Tribunal essentially had to answer was whether the applicant had "a well-founded fear of persecution for a Convention reason if returned to his country of nationality" the answer really depended ipon whether or not the events of which he complained did or did not take place and, in my submission, each of those events was therefore central and crucial to the decision to be made and it required a finding of fact to be made in relation to each of them.

Can I take your Honour briefly to a decision of Yusuf [1999] FCA 1681; (1999) 95 FCR 506 which is also in that bundle. It should be the next case down. Can I take you to page 514, paragraph 35?

HIS HONOUR: Yes, I have that.

MR RANGIAH: It was said that:

a specific instance of alleged maltreatment upon which the asylum-seeker's fear of persecution for a Convention reason was said, in part, to be based, would usually constitute a material question of fact.

The issue in this case is referred to at page 509. Your Honour will see in paragraph 8 there is a quotation from the primary judge's reasons. It says:

Leave was given to further amend the application to insert this particular ground. At the outset of submissions, counsel for the applicant indicated that the Tribunal in its reasons dealt only with two of the three alleged incidents which gave rise to the applicant's fear of persecution.

I have already indicated in passing that the Tribunal did not deal with the alleged attack on the house of the applicant. Then there is a reference to the incident itself and at the bottom of the paragraph it is said:

It can properly be said, in my view, to be a matter that was central to the events relied upon by the applicant as grounding her fear of persecution.

The Full Court upheld the decision of the primary judge that the Tribunal was required:

to consider the matter and in its reasons to indicate whether or not it accepted or rejected that event

HIS HONOUR: Say I were to assume that the Federal Court's test is the right test.

MR RANGIAH: Yes.

HIS HONOUR: They have this notion in it of a fact being material if it is central.

MR RANGIAH: Yes.

HIS HONOUR: Assuming that to be the right test, why would this one incident be central to your client's claim of a fear of persecution? It does not stand out. It is no different - indeed, in a sense it is a less threatening event than the encounters on the isolated road because it occurs in the presence, presumably, of other people, or other people could easily come along at the applicant's home. Why would this event be central?

MR RANGIAH: It was something which obviously influenced my client and his conduct, if it is to be accepted, because following this event and following the absence of any protection by the police in May, in the following month, he left his home and moved away to stay with other relatives for six months before eventually coming to Australia. It was obviously a crucial event in my client's mind, but even if it is looked at in isolation, even assuming that the other events are just simply made up and they did not occur, if someone came to his house and said, "I'm from the JVP", an organisation which had been known for a campaign of brutality and political violence in the past, and said that, "If you don't join the JVP I'm going to kill you and I'm going to kill your family", then that single threat, in my submission, coupled with the failure of the police to do anything about it, would be capable of satisfying the test for whether a person is a refugee. Even if your Honour is not convinced that the Federal Court is correct, in my submission it is arguable that it is.

HIS HONOUR: Yes.

MR RANGIAH: Your Honour, that is all I had proposed to say about the facts and the question of the centrality of the question. The next issue I propose to deal with is relief and I have referred to that issue at paragraphs 22 to 26 of my outline. Your Honour, can I take you to paragraph 31 of the decision in Durairajasingham.

HIS HONOUR: Yes.

MR RANGIAH: Your Honour will see that there is a reference there to an injunction being sought against the third respondent. Now, in that case, the third respondent was the principal member of the Refugee Review Tribunal and the injunction sought against the principal member was that he have the matter determined by a different member of the Refugee Review Tribunal. The injunction which was sought was not directed towards either the Minister or the member of the Refugee Review Tribunal who heard the matter. His Honour said:

No doubt the power to grant injunctions under section 75(v) is not confined to jurisdictional error, and, if an injunction was appropriate, in some situations certiorari would also lie to quash a decision or order so as to effectuate the grant of an injunction.

Your Honour, it occurs to me that the draft order nisi which I proposed may not seek certiorari. I just cannot recall whether that is so or not.

HIS HONOUR: If I were minded to uphold your application, I would not grant final relief anyway.

MR RANGIAH: Yes.

HIS HONOUR: So you would only need an arguable case for an injunction or some alternative form of relief.

MR RANGIAH: Yes. And, his Honour went on to say:

But there is nothing in this case which would warrant the grant of an injunction against the third respondent -

That is the principal member -

unless the decision of the Tribunal was void.

It goes on to say:

Indeed, no order could be made against that respondent unless relief was obtained against the first and second respondents.

He then went on to say:

Nor is there anything in the case which would justify an injunction against the first and second respondents if mandamus or prohibition is not available.

Even though an injunction was not actually sought there.

There is nothing to suggest that, even if the first and second respondents have acted within their jurisdiction, they have acted or are threatening to act unlawfully in some way that infringes or threatens to infringe the legal rights of the prosecutor to stay in this country.

But, that passage must be taken in the context that his Honour rejected each of the applicant's arguments. There was nothing unlawful about the decision that was made and therefore there was no basis for the grant of an injunction. In this case, of course, if your Honour accepts that my client's argument is correct, then the decision would have been unlawful. It would not have complied with section 430 and, in my submission, that would found the basis for the grant of a mandatory injunction and a prohibitary injunction against the first respondent to prevent the first respondent from taking my client into custody and deporting him.

Your Honour, I have referred in my submissions to a decision of Glossop, and I have included a copy of that.

HIS HONOUR: Yes, I am aware of that.

MR RANGIAH: I will not take your Honour to it, but it suggests that, in circumstances where it sought to compel a public body in order to fulfil a statutory duty, mandamus is the appropriate remedy, but not an injunction. But there is an exception to that, and that is where there is also a wrongful act which causes an injury to a private individual and, in this case, the statute is very much - my client made the application, his application has been rejected and there is a wrongful act, in my submission, which affects his rights.

Your Honour, at paragraph 25 of my submissions I have indicated that a declaration has been sought. Can I indicate a couple of things about this: first of all, the reference to Order 26 rule 15 should be to rule 19 and I should have also referred there to sections 31 and 32 of the Judiciary Act 1958 . I will not take your Honour to those because of what I am about to say. I have referred in paragraph 26 to a decision in Punton v Ministry of Pensions and National Insurance and that decision was followed by the New South Wales Court of Appeal in a decision of Simons v Commissioner of Taxation (1980) 1 NSWLR 404. I have included a copy of that in your Honour's bundle, but the proposition which was established in Punton seems to be well established now in Australia. The decision in Simons refers to a number of other decisions in which it was adopted.

Your Honour, in relation to my argument about failure to take into account relevant considerations, my argument is simply that, while the incident to which I have referred to in April 1997 was set out in the facts and contentions part of the decision, it was simply not referred to again, although your Honour suggested that it may have been implicitly referred to and, in my submission, there is simply nothing in the decision to suggest that that was a matter which was actually taken into account.

Your Honour, I accept that the decision in Peco-Walsend holds that there must be something in the scope, subject matter or purpose of the Act which requires the matter to be taken into account before there can be a suggestion that it was not taken into account, but the effect of section 36, importing the Convention, suggest that the facts upon which the fear of persecution is based must be taken into account. Unless there is anything further, your Honour, those are my submissions.

HIS HONOUR: Thank you, Mr Rangiah. Yes, Mr Derrington.

MR DERRINGTON: May it please, your Honour. Your Honour, can I say with respect to my learned friend's submissions that they fail to keep steadily in mind that the apparent ground of release sought is by way of granting of the prerogative writs of various sorts, because, from time to time, my friend's submission strayed into the statutory grounds of review granted by section 476 of the Act and in reliance on section 430. To put that perhaps more clearly is to say simply that the ground of review under the Act, that is that all procedures required by the Act or the regulations to be observed, must be observed, and that picking up section 430, about the writing of decisions and the manner in which decisions are expressed, has nothing to do with the granting of prerogative relief, yet, despite that, my learned friend's submissions vacillate between identifying for your Honour what is alleged to be material facts rather than identifying where a fact was not taken into a consideration.

Your Honour, if I can simply very quickly go to the facts, and all I need to do is to refer to paragraph 6 of my outline, because your Honour did identify to my learned friend that, in fact, the Refugee Review Tribunal identified expressly the terms of the complaint, which was at page 8 of their decision. Your Honour, at page 8 of their decision they expressly refer to the:

threatening incidents, including once in April 1997, when a man came to his home -

This is in the context of the Refugee Review Tribunal setting out at length the claimed incidents on reliance of which the applicant has for claiming a fear of persecution. The paragraph immediately preceding the paragraph setting out the alleged incident at his home identifies that:

the most threatening of the approaches -

occurred on the roadway - on some isolated roadway. Now, in the context of the material before the Tribunal, the applicant's submissions which identified seven or eight different occasions where these events had taken place, the point being simply that if one keeps steadily in mind the obligation of the court in granting prerogative writs to identify whether or not the Tribunal took into account a relevant consideration, its listing of its considerations, the things that it considers were material to his determination, is unequivocal evidence that it took that into account. I think, as your Honour said to my learned friend, it would seem that even the applicant considered the event at his own home to be of less significance than those when he was alone.

Your Honour, the Refugee Review Tribunal said to my learned friend, it would seem that even the applicant considered the event at his own home to be of less significance than those when he was alone. Your Honour, the Refugee Review Tribunal in its reasons set out the claims made, identified at page 13 in the penultimate paragraph, that they had discussions about the various incidents, et cetera, and, more importantly, on page 20, which is under the heading "Recent harassment by the JVP", does, as your Honour indicated, identify that the Refugee Review Tribunal had a discussion with the applicant as to its concerns about believing him.

Your Honour, my learned friend's argument comes down to this, that the Refugee Review Tribunal found that there were some more particular reasons why the other allegations were not sustainable and identified them. That does not take away from the reasoning, and the whole of page 20 of its reasons, as to why it disbelieved the whole range of alleged threatening incidents. So, your Honour, at the end of the day it is simply a question of, is there a jurisdictional error? There is no jurisdictional error because clearly this matter was taken into account. It may have been the case that had the applicant availed himself of the opportunity to seek review under the Act, then this issue might have been ventilated, but, of course, that is now prohibited by the time limitation, this decision being of some age now, the consequence being that what the Court is now being asked to do is to say, well, although the applicant has no visa to stay here and has no opportunity to make a second application and has a decision rejecting the first application, the Minister nor the Department can do anything about it; he is entitled to stay here.

But were that to be the case, the granting of an injunction would set at naught all the statutory provisions relating to visas, because, despite the expiration of time limits and the absence, and one might even say the absence of any jurisdictional error, the applicant might point to something in the reasons and say, well, had I made an application in time I would have succeeded, therefore it is erroneous, therefore an injunction ought be granted. I mean, that is what my learned friend's submission has come down to and, with respect, the problem is, he has no relief for which the injunction can be ancillary to. In other words, he has no right to stay.

Your Honour, I mentioned I set out in my outline the distinction between the grounds of review and the prerogative writs. I do not wish to say anything more. Largely, all the matters on which we rely in relation to the last application are set out in my outline. I do not know if there is anything in particular that your Honour feels you need me to go to?

HIS HONOUR: No, thank you, Mr Derrington. Mr Rangiah.

MR RANGIAH: I have nothing in reply, your Honour.

HIS HONOUR: I am prepared to give my decision now. The applicant in this case seeks prerogative and related relief against the Minister for Immigration and Multicultural Affairs and the Refugee Review Tribunal with respect to the affirmation by the latter of the decision of the Minister's delegate to refuse to grant the applicant a protection visa.

The applicant contends that the decision of the Tribunal failed to comply with section 430(1) of the Migration Act (Cth) and that the decision of the second respondent failed to take into consideration a relevant consideration, namely, an incident alleged by the applicant to have occurred on or about the twelfth day of April 1997. In substance, that incident is the one that is referred to in the decision and reasons for decision of the Tribunal at page 8. The narration at that page includes this paragraph:

The Applicant described further threatening incidents, including once in April 1997, when a man came to his home and threatened his family. A friend of his also began to put pressure on him and would ask him for money. He bought tickets and newspapers from his friend to hope this would put an end to JVP harassment.

It was the applicant's claim that he had been an activist in the JVP party in the past when that organisation was a proscribed organisation in Sri Lanka. Subsequently, the organisation ceased to be a proscribed organisation but, according to the applicant, instead of being harassed by the authorities as he had been when the organisation was an illegal one, he was now being threatened by it to rejoin it, to donate money to it, and to assist it in various ways.

The applicant's case was that the visit to the place where he was residing was a matter of some importance and was a particularly frightening event. Accordingly, it was submitted, the Tribunal was bound to deal with it explicitly and to make a finding upon it, in short, that it was a material question of fact in respect of which an express finding should have been made, as required by subsection (c) of section 430(1) of the Act.

I am, I think, bound to reject that submission. At page 20 of the Tribunal's reasons the Tribunal says this:

The Tribunal discussed with the Applicant the problems in accepting that unknown people would pressure him so much to re-join the JVP. It was put to him that as a legal political entity, it did not need to work in that way. It also was put to him that he did not seem to fit the profile of a significant figure worth pursuing in such a manner. He responded that it was his role as a school teacher and his influence with his students which was important and that was why the JVP wanted him.

A little later the Tribunal said this:

The Tribunal found the Applicant's account of how these threats were made against him to be unconvincing. First of all, those who threatened him were largely unknown to him. He gave evidence that he had a friend who urged him to re-join and who seems to have extorted money from him but the main source of the threats was unknown. Given that the JVP was a legal political entity at the time the alleged threats were made, it is not clear why the Applicant was accosted by unknown people.

The applicant fastens, then, upon the next sentence which appears in the Tribunal's reasons:

The Tribunal also has taken into account that the incidents allegedly took place when he was alone on roads near his village.

In respect of this last sentence the applicant submits that it shows that, in effect, the Tribunal had overlooked the incident to which I have referred which was not an incident which occurred on a road but occurred at the place of residence of the applicant. That may well be so: that is to say that that sentence does not embrace the incident in question but, in my opinion, the earlier statements which the Tribunal made are wide enough to encompass, and do in fact encompass all of the threats which were made against the applicant, including the one which is said to have been made at the residence. I say this because of the opening sentence under the heading "Recent harassment by the JVP" in which the Tribunal said that it had:

discussed with the Applicant the problems in accepting that unknown people would pressure him so much to re-join the JVP.

I am of the further opinion that all threats, including the one at the residence, are encompassed by the statement by the Tribunal that it found the applicant's account of how these threats were made against him to be unconvincing. It follows, in my opinion, that the applicant is unable to demonstrate that the Tribunal did act in any way in breach of section 430(1) of the Migration Act or that the Tribunal failed to have regard to a material fact or, indeed, failed to make a finding of a material fact.

It is therefore unnecessary for me to consider the submissions that were made with respect to the appropriateness or otherwise of the relief sought, whether and in what form it might be available in a case of this kind, and whether, in any event, as a discretionary consideration, it might be relevant to take into account the applicant's failure to pursue a remedy that he might have had in the Federal Court. Accordingly, I dismiss the application.

MR DERRINGTON: We ask for costs, may it please your Honour.

HIS HONOUR: Can you say anything about that?

MR RANGIAH: I do not have any submissions, your Honour.

HIS HONOUR: I dismiss the application with costs. Thank you.

AT 11.42 AM THE MATTER WAS CONCLUDED