James, Ex parte - Re MIMA & Anor M75/2000 [2002] HCATrans 62 (26 February 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M75 of 2000

In the matter of -

An application for Enlargement of Time, Writs of Prohibition, Certiorari and Mandamus, or Injunctions or Declarations against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

DR PETER NYGH (in his capacity as Principal Member of the REFUGEE REVIEW TRIBUNAL)

Second Respondent

DR RORY HUDSON (in his capacity as constituting the REFUGEE REVIEW TRIBUNAL)

Third Respondent

Ex parte -

CHRISTY PREMANANDARAJAH JAMES

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 26 FEBRUARY 2002, AT 9.39 AM

Copyright in the High Court of Australia

__________________

MR A.F.L. KROHN: May it please the Court, I appear for the prosecutor. (instructed by Ravi James & Associates)

MR D.I. STAR: Your Honour, I appear on behalf of the first respondent, the Minister for Immigration and Multicultural Affairs. (instructed by Australian Government Solicitor)

HIS HONOUR: Now, Mr Krohn, in this matter I have received this morning an outline of submissions and an amended draft order nisi.

MR KROHN: Yes, your Honour.

HIS HONOUR: Have you seen those documents, Mr Star?

MR STAR: Yes, your Honour. They got to me at about 10 o'clock last evening.

HIS HONOUR: Well, you are well ahead of me, Mr Star.

MR STAR: If there is a formal application made for amendment, that application is strongly opposed.

HIS HONOUR: Well, let us hear what Mr Krohn has to say first, Mr Star.

MR KROHN: Your Honour, I do apply to amend - perhaps if I might indicate to your Honour, just that I might check that your Honour has the correct documents. There is a four-page amended draft order nisi which adds the phrase "acted unreasonably" to ground b. Does your Honour have that document?

HIS HONOUR: Yes, I have that one.

MR KROHN: And then particulars to grounds b and c - sorry, that same phrase to ground c and an additional ground e.

HIS HONOUR: Yes, I have that.

MR KROHN: Your Honour, I do make the application to amend the draft order. I am instructed that the reason that there was no outline of submissions filed on or before 20 December was for two reasons, both interrelated. The first, that the prosecutor in this matter had financial difficulties and was unable, financially, to arrange for submissions to be prepared and filed.

I am further instructed that his - I cannot recall, your Honour, if it is spouse or fiancée, had a matter before the Refugee Review Tribunal which I understand to have been determined in the course of last year, but that matter was proceeding, on my instructions, to some stage in review and I am instructed that the prosecutor in the matter before your Honour this morning considered that he had good reason to believe that his situation would be resolved by those proceedings without need - or he hoped that it would be the case, without need to proceed in the matter before your Honour, but the primary reason is his financial difficulty.

Perhaps the other thing I would urge in support of the leave to amend is that it relies on no additional evidence - indeed, it relies only on the Tribunal's own expressed reasons for decision - and while it is advanced in the alternate as under ground b or supplemented by ground c or, in the alternate, ground e, the complaint is a single, very tightly confined self-contained point, which is simply that at a crucial, perhaps the most crucial point of the decision-making process, the Tribunal engaged in behaviour in its reasoning that was so spectacularly unreasonable that it affected the whole of the rest of the decision. It is a very tightly confined point, your Honour.

HIS HONOUR: Just before you continue with that, can you take me to that part of the decision which you characterise in that way? First, where do I find the decision in this - - -

MR KROHN: It appears actually in several exhibits but perhaps the most convenient, or the one to which I referred in the outline, your Honour, appears at exhibit LMH-1. I believe I am correct in that.

HIS HONOUR: Yes.

MR KROHN: That is the Tribunal decision. I believe it is also an exhibit to another affidavit, but - - -

HIS HONOUR: Just a moment. My capacity to disarrange a file presented to me in perfect order is boundless, Mr Krohn.

MR KROHN: Your Honour has strong competition from myself, if I might respectfully say so, your Honour.

HIS HONOUR: Needless to say it is the document that I had out first. Yes.

MR KROHN: If your Honour please. If your Honour turns first to the - perhaps just in passing I note that the Tribunal at pages 4 and 5 refers to the law relating to persecution and correctly, as far as it goes, refers to the law there. Then the Tribunal outlines the claims of the prosecutor. If your Honour turns to page 7, beginning at about point 4 of the page, these are the major claims of hardship or abuse. There is the third paragraph on the page:

In August 1991, he and some other Tamil youths were beaten up by four or five Sri Lankan policemen, who accused them of being connected to the LTTE.

Then there is a reference to being importuned for money in the following paragraph. Then the paragraph after that:

Nevertheless, the applicant came under suspicion, and in April 1995 the security forces raided his home and took him into custody. He was detained for a day and badly beaten, sustaining a fractured shoulder and an injury to his pelvis. He did not reveal any information about the LTTE, and after the police confirmed that he worked at the bank, he was released.

Then there is another incident referred to in August 1995. That is in the Tribunal's summary of the claims. Then if your Honour turns to page 12, the second paragraph, about point 3 on the page, having reviewed evidence that the applicant gave or was adduced on his behalf, the Tribunal says:

In general, then, many parts of the applicant's testimony are not credible. Specifically, I find that he was endeavouring to come to Australia well before the Central Bank bombing, which was not an influencing factor; that his desire to come to Australia had nothing to do with the capture of Jaffna in October 1995.

Then it deals with an incident with the identity card and demand for money. Then the last sentence, beginning four lines from the bottom:

I accept that he had some association with the LTTE, of the kind described, in 1984-7; that he was detained and beaten on the occasions when he said he was; and, speaking generally, I accept the other parts of his case that I have not mentioned.

So the Tribunal accepted that claim of detention beating, which included a beating so severe that the shoulder was fractured and there was injury to the pelvis, and that he was detained until the suspicion was apparently allayed. Then there is one further passage, your Honour, coming to its general conclusion about the Sri Lankan Government authorities' interest in the prosecutor. On page 13, the second paragraph, about point 2 or 3 on the page, the Tribunal says this:

It is consistent with this that the authorities have not in fact shown any serious interest in him. The 1991 bashing appears to have been an act of particular individuals rather than an instance of official attention. The incident of April 1995 may indicate that there was initially some suspicion of him -

I stress that, your Honour, the Tribunal accepts that there may have been "initially some suspicion of him" -

(though it may also have been just part of a random check on Tamils) -

so the Tribunal does not know which it was -

but evidently any suspicion was quickly dispelled after routine checks were made at the bank at which the applicant worked.

Then the 1995 incident is dealt with as "corrupt police officers".

The central issue, your Honour, is that the Tribunal says, "I accept he was detained and beaten. I accept it may have been because he came under suspicion from the authorities. However, after they checked and discovered he did work at the bank, they released them." Therefore, the conclusion, although it is not put in terms, explicitly, that the applicant did not suffer on that occasion, persecution for a Convention ground, clearly that is what is indicated and intended by the sentence:

It is consistent with this that the authorities have not in fact shown any serious interest in him.

And on reasonableness which I seek to put before the Court for an arguable case in support of the application for order nisi is that here is a tribunal which is aware that persecution can take many forms. It may include various forms of mistreatment. Here is a tribunal which accepts that a man was detained and beaten and significantly injured. Here is a tribunal which accepts that at the time that occurred it may have been because he came under suspicion. Indeed, the Tribunal seems to accept that that is probably the case because the Tribunal refers to the dispelling of suspicion after checks were made at the bank.

Those checks were made after the applicant had been detained and beaten and seriously injured, so that at the time that he suffered that serious violation of his person and his rights - at the time that he suffered that - the Tribunal at least accepts that this may have been because the authorities suspected him. That must mean the Tribunal accepts that it may have been for reason of an imputed political opinion that he suffered this serious injury. Now, the Tribunal - - -

HIS HONOUR: Assume that to be so. Assume that the argument you have just mounted were accepted in its terms, what consequence follows for the conclusion that there was no well-founded fear?

MR KROHN: The conclusion, later, your Honour, is on the basis that because the applicant was not a person of significant interest or profile with the authorities, therefore - it is page 14, your Honour, middle of the page:

The Tribunal concludes that the applicant does not have an imputed pro-LTTE profile in Sri Lanka, and therefore does not face a real chance of persecution there on this ground.

The conclusion is predicated very significantly on the finding of the Tribunal that he does not have an imputed pro-LTTE profile. If the Tribunal had accepted - for the sake of argument - if the Tribunal had proceeded in the other way, and said, "I accept that there was an incident which, because of the suspicion of the authorities should be regarded as persecution for political opinion, however, I consider that, on that occasion, they then realised that he was working at the bank, and so they released him", the Tribunal then could have dealt with the issue of his profile as a matter of fact in a variety of ways.

The Tribunal may have found that, well, the checks at the bank had settled the matter forever, and he is not of any interest to the authorities from that time onwards and into the reasonable future. Or the Tribunal may have said, it would have been open to the Tribunal to consider that the applicant, having come to the attention of and been dealt with by the authorities very severely, that the recording of his detention and his beating, or his treatment by the authorities on the basis of suspicion, may have been enough for him to be, as it were, on the list of "usual suspects".

If that was a matter for the Tribunal, it is a matter for the Tribunal to have determined on the facts, as the arbiter of fact. But because it was open to the Tribunal to say that, "You were taken into detention and seriously abused and injured because there was a suspicion of you", if the Tribunal regarded that as an act of persecution, the Tribunal may have regarded differently its conclusion about either future persecution by the authorities on the basis of an imputed political profile, or, again, on the basis of checks and round-ups.

HIS HONOUR: Well, that is - yes?

MR KROHN: One final passage to which I should take your Honour is page 19 of the Tribunal's decision. Page 19, the second paragraph, the Tribunal is considering the possibility that routine checks might lead to persecution, and the Tribunal says at line 2 of that paragraph:

the evidence indicates that in the vast majority of cases they are not aimed at harassing Tamils but represent a reasonable response to the threat of LTTE terrorism.

Well, it may be, in the vast majority of cases, there are reasonable response, despite the serious injury to the applicant. The Tribunal goes on further on page 20 and says that - about point 6 on the page, your Honour:

While the temporary detention for checking purposes which the present applicant may well experience upon return to Sri Lanka is no doubt linked to his race as a Tamil, it is not an instance of persecution, even if the motivation of the authorities would be malevolent against Tamils, because brief detention is not a sufficiently serious matter to amount to persecution. As explained above, brief detention followed by early release is all that most Tamils will experience in Sri Lanka.

The Tribunal has considered the claim for its conclusion on the basis: first, the applicant does not have an imputed political profile; second, repeated detention followed by early release does not amount to persecution, for the majority of Tamils. Now, had the Tribunal correctly realised that detention on suspicion, severe beating and injury is persecution for a Convention ground, then the Tribunal may well have considered differently its conclusion.

HIS HONOUR: Well, is that right? Let it be assumed - to take a set of facts different, but not, perhaps, importantly so, from these facts - that the authorities in country A are engaged in a course of persecuting those who hold political opinion associated with the XY party. Assume further that someone is picked up by the authorities in the country, is accused of being a member of the XY party, is beaten severely, imprisoned, tortured, subjected to considerable acts of persecution, and at the end of it, the authorities say: "Well, terribly sorry, we now understand that you are not a member of the XY party. Off you go." Does that person have a well-founded fear of persecution?

MR KROHN: It depends on other things that would need to be considered, your Honour. The starting point, as the Tribunal, and indeed, in this matter, as his Honour Justice Sundberg in the Federal Court accepted, is to consider whether somebody has suffered persecution. That is usually a logical starting point. However, assume - just proceeding from your Honour's example, whether there is well-founded fear of persecution for that person in the future will depend upon, for example, whether the authorities, having once treated somebody in that way and released him, regard him as released, as it were, without a stain on his character, or regard him as somebody whom they have pulled in and released without charge, but "we are going to keep an eye on you." Those are matters of fact that - - -

HIS HONOUR: That may be to apply standards of behaviour which we might wish were observed in this country to other political societies of a radically different kind. I mean, in the end, is this man to be understood as having a well-founded fear of persecution on account of political belief, when, as I understand it, he denies association, relevant association, with that political belief? True it is, he has been picked up and beaten most severely on account of it, and the authorities then have said: "Well, terribly sorry, wrong man." Is that not, in essence, what the Tribunal Member has said here? Now, that may be factually right, it may be factually wrong, but what is unreasonable about that chain of reasoning?

MR KROHN: The unreasonableness, your Honour, is in two stages. The first is that because of the way the Tribunal went about it, the Tribunal considered whether this person had any profile with the authorities was a significant thing. In the first place - - -

HIS HONOUR: And concluded that he did not.

MR KROHN: That is so, your Honour, but that conclusion is infected, if I may say so, by the Tribunal's erroneous conclusion that - taking your Honour's example - if somebody is picked up and beaten and treated atrociously because, at the time, they think he belongs to party X - - -

HIS HONOUR: And at the end of it, they say: "Terribly sorry. We now accept, you were not."

MR KROHN: Now, your Honour, if - - -

HIS HONOUR: It would be astonishing if they did apologise, but there we are.

MR KROHN: It would, indeed. It works - a very simple two-stage argument. First, at the time that he suffered those things, he suffered treatment sufficiently serious to be persecution because it is for reason of political opinion - it was mistaken, but the authorities who were doing it, the motivation for it was political.

HIS HONOUR: Accept that - - -

MR KROHN: Your Honour, if this is a society where that is the kind of error, the sort of "shoot first for safety" error which occurs sufficiently frequently, then, indeed, even though, if you like, at the end of every week, the authorities, when they tidy up their books and records, may say, "Oh, well, no. After all, this man does not belong to party X". But if they pull him in and abuse him erroneously often enough, then, indeed, through incompetence rather than malice, the applicant - that person - would have well-founded fear of persecution for political reason. Not all persecutors are intelligent and focused and careful.

HIS HONOUR: But the argument below, as I understand it, was this man is at risk of persecution on his return because he is seen as an associate of, or associated with, the Liberation Tigers, and that is the risk he fears. And the finding of the Tribunal is, he does not have an imputed pro-LTTE profile. Now, that is, as I say, right or wrong, but we cannot debate, can we, the - - -

MR KROHN: No, I am not debating the question of the abiding profile, your Honour, but I am submitting that, when the Tribunal accepts in the same paragraph - in the same breath, as it were - that the man suffered this serious injury for a passing suspicion of political involvement, and then says that, "the authorities have not in fact shown any serious interest in him", that applies to the assessment of that incident. That is the opening sentence of the paragraph, and it is, if you like, unpacked by what the Tribunal says. It says, well, this is not any serious interest by the authorities. Why? Because, well, they discovered quickly enough they were mistaken. Do not pay any attention to the fact that he was seriously injured.

Then the claim below was put on the basis, if you like, not only of conscious and malicious persecution of this man, but also that, because there are repeated detentions and round-ups of Tamils, the probability is that, taken overall, and on the appropriate standard, there is a sufficiently high probability of him coming to grief again, that this would amount to persecution. The Tribunal dealt with the issue of repeat detention, and when the Tribunal says that:

brief detention is not a sufficiently serious matter to amount to persecution. As explained above, brief detention followed by early release is all that most Tamils will experience in Sri Lanka.

Your Honour, that compounds, in my submission, the unreasonableness. The brevity of the detention is clearly not the only significant characteristic. It depends whether, during your brief detention, you have been treated with basic dignity or whether you have been belted across from one concrete wall to the rest. It is in that way, your Honour, that although the Tribunal itself was alive to the claim - the Tribunal in its own summary of the claims adverted to the fractured shoulder and the injured pelvis and the beating, and despite its problems with credibility as to some aspects of the claim, the Tribunal accepted that he was detained and beaten on the occasions when he said he was, the view of the Tribunal - perhaps there are two unreasonable - and strikingly unreasonable - things the Tribunal says. First, that this incident, despite the suspicion of the authorities at the time they were beating him, in effect, was not persecution for a Convention reason. If not, then it is hard to see what would be - - -

HIS HONOUR: Sorry, where does the Tribunal say that?

MR KROHN: It does not, in terms, say that this was not an instance of persecution for a Convention reason, but it is the necessary conclusion from, and meaning to - it must be included, at least, within the meaning of the sentence:

It is consistent with this that the authorities have not in fact shown any serious interest in him.

The whole of that paragraph on page 13 is discounting the sort of Convention character - race, religion, political opinion - of each of those incidents. It is saying: well, 1991 - particular individuals; April 1995 - initial suspicion, but cleared up; August 1995 - corrupt police officers, in effect. The meaning of that paragraph is that the Tribunal does not accept this is persecution for a Convention reason. Certainly, it does not accept that that is "serious interest" in him. Well, your Honour, even though it may have been mistaken, the Tribunal accepts it occurred and the Tribunal accepts that it may have occurred - indeed, the language suggests that on balance, in the mind of the Tribunal, it probably occurred because of some initial suspicion. Now, if that is the case, and there is a brief detention, then, in my submission, it is unreasonable for the Tribunal later, when it is coming to the peroration, as it were, of its reasons, says on page 20:

brief detention is not a sufficiently serious matter to amount to persecution.

In the mind of the Tribunal, it does not appear to matter how badly you are treated, as long as you are out in 24 hours. Your Honour, what the Tribunal would have done with its ultimate finding, had it realised what it was doing here, and done it properly, I do not know - it is not a matter for the Court. But, in my submission, it is such a serious misunderstanding of what could be involved in persecution, and so unreasonable, that it is an error which, because it may have affected the decision, means that the decision ought to be set aside and the matter ought to be remitted. It is a case where, in a way, the Tribunal could have done a range of things. The Tribunal could have said, "I have problems of credit with the applicant. I do not believe a word he says." It did not do that. In fact, the Tribunal went out of its way to say, "I do not accept this and this and this, but I do accept he was detained and beaten on the occasions when he said he was", and then goes on, in my submission, to make this unreasonable characterisation of it, which infected the Tribunal's consideration of whether future possible repeat detention would mean there is a well-founded fear of persecution. It is put in that way, your Honour. I do not think I can take your Honour any further.

HIS HONOUR: Now, am I right in understanding, the application, as it now stands, to be one that relies centrally upon this unreasonable ground?

MR KROHN: It is, your Honour.

HIS HONOUR: Yes. Now, as to that, is there anything you would wish to say to me about the decision in Eshetu (1999) 197 CLR 611, where the Court looked at the Wednesbury unreasonableness ground in a migration context? Is there anything that you would wish to say about that?

MR KROHN: First, your Honour, the particular focus of the Court, as I recall it, in Eshetu was the operation of section 420 of the Act, as it then stood.

HIS HONOUR: That was a point, but there was also a question of unreasonableness and Wednesbury unreasonableness and I think I am right in saying that all members of the Court said that an unreasonableness ground was not made out there. Differing views were expressed about how Wednesbury unreasonableness intersects, if at all, with 75(v), and exactly what it means.

MR KROHN: Yes, your Honour. I understand it was a matter that was, I think, considered also, at least, by Justice Gaudron in Abebe.

HIS HONOUR: Yes.

MR KROHN: It is for that reason that I have sought to amend, in the alternate, by putting unreasonableness either as a separate ground or as an incident of error of law or acting without jurisdiction.

HIS HONOUR: Jurisdictional error, yes. But I am right, am I not, in understanding you to stand or fall on the proposition that the decision was one which reveals within itself a chain of reasoning that no reasonable decision-maker could have adopted?

MR KROHN: Yes, that is so, your Honour.

HIS HONOUR: Yes.

MR KROHN: If your Honour would pardon me for a moment.

HIS HONOUR: Yes.

MR KROHN: I have nothing further at this stage, your Honour. I understand myself to have been explaining to your Honour what I wish to put if leave to amend is granted - - -

HIS HONOUR: Yes, I understand.

MR KROHN: - - - but, essentially, unless your Honour desires me to go either to any authority or to any of the other evidence in any detail, I do not propose to make any other submission, your Honour.

HIS HONOUR: Yes. Thank you, Mr Krohn. Well, Mr Star, for the moment, I would be, I think, principally assisted if you would direct your attention to whether the ground which it is proposed to add is an arguable ground. Let us, for the moment, leave to one side other discretionary matters which I will understand you may wish to put in issue or say something about, but let us focus on the merit of the ground which it is sought to add.

MR STAR: Your Honour, I will direct my attention as to the merit of the ground first, and then to other discretionary factors. I encompass both factors under a submission to your Honour that it really is an outrageous application for amendment.

HIS HONOUR: I will have the Registrar turn the light on over the jury box, Mr Star. I think, let us come to the substance rather than the jury flourishes.

MR STAR: Your Honour, firstly, the Wednesbury unreasonableness ground is a very high hurdle, indeed, for any applicant to meet. We are talking about a finding or a decision that is so unreasonable that no reasonable Tribunal could ever come to it. So the applicant, the prosecutor, has set himself a high hurdle indeed by this proposed amendment. With respect, what is done is an attempt to rehash the substance of the arguments which were put to Justice Sundberg below, but under the rubric of unreasonableness, as opposed to the grounds upon which Justice Sundberg dealt with them, under section 476.

Assume for the moment that the prosecutor establishes a particular finding that is unreasonable. I do not concede that for a moment, but assume that is the case. There is a real issue as to whether or not that would give rise to a ground of review under section 75(v) of the Constitution. Your Honour, in the interchange with my learned friend, has alluded to what has been said in Eshetu and also Abebe, but, as I understand it, it is still not decided, that in the circumstances urged upon by the applicant, that the ground of review of unreasonableness is available, because what is being challenged, as I understand the applicant's argument, is a particular fact finding, not the ultimate decision.

He seeks to draw in the ultimate decision by saying, "it is part of the chain of reasoning", but what your Honour is seeing, necessarily, is a selective run-through the RRT's reasons. I submit that if your Honour reads the Tribunal's reasons from front to cover and gives it a full and fair reading, your Honour will be assured that in coming to the ultimate question - namely, "is there a well-founded fear of persecution for this particular person in the foreseeable future?", it cannot be said that the Wednesbury unreasonableness ground is fairly arguable.

I make that submission because the RRT dealt with past claims, and it also looked at subsequent country information. It looked at a whole range of factors to come to its ultimate conclusion that there was not a well-founded fear of persecution for a Convention reason in the foreseeable future. So, irrespective of acceptance of the applicant's argument, it is not unreasonable for the Tribunal in the end to have come to its conclusion that this person did not have an imputed LTTE opinion, that this person did not face a well-founded fear of persecution by reason of his race or any other Convention reason.

I do not, unless it assists your Honour, propose to take your Honour paragraph by paragraph through the RRT's reasons, but, by way of example, in exhibit 1, which is the RRT's reasons, on page 13, after the very paragraph which my learned friend has relied upon, the RRT deals with subsequent claims of the prosecutor, such as an event in February 1996, also about the fact of him working in a bank next to politicians in Colombo, and various other matters, to come to the conclusion - and I am drawing this from the bottom of page 13 and the top of page 14 - that there were other bases upon which it was open for the Tribunal to come to the conclusion that this person does not have an imputed LTTE profile.

That is why I started the submission with reference to the high hurdle which the applicant has to meet for Wednesbury unreasonableness. If, for instance, the decision only depended upon the one event which the applicant focuses upon, it might be fairly arguable - I do not concede it even then, because there is still the real issue about whether Wednesbury unreasonableness is available - but given that there are other and subsequent events and information upon which the Tribunal's decision is based, it cannot be said that no reasonable Tribunal could ever come to the ultimate conclusion that it came to.

Your Honour, I do not want to stray into the other discretionary factors if it is not going to assist your Honour, but my submission to you is there really is, prima facie, no merit in the unreasonableness proposed amendment, and it is robbed of persuasive force by the fact that it has taken nearly 18 months since this application was issued in the High Court - - -

HIS HONOUR: Well, again, as I think Justice McHugh has been heard to say in the course of argument from time to time, that is really no more than a point of prejudice, is it? It is a forensic flourish - either the point is good or bad. It may or may not have taken the applicant's advisers an unreasonable time to discern it, if it is a good point. In essence, does it not come down to this, that, as I understand your contention, it is that there is no want of logic in the Tribunal concluding, as it seems to have concluded, that the incident of April 1995 does not reveal a basis for a well-founded fear of persecution because of its conclusion that the suspicion that led to detention and the mistreatment of the applicant was dispelled. It is as short as that.

MR STAR: Yes, it is as short as that, your Honour.

HIS HONOUR: Yes.

MR STAR: In the context of - and I will try not to repeat myself, your Honour - the high hurdle which the applicant has set for itself, in the context where it is not even clear that unreasonableness is necessarily available under section 75(v), and this certainly is not the appropriate case to test those questions. Now, I propose to deal briefly with discretionary matters, but I will not if - - -

HIS HONOUR: Yes. For the moment, I think, Mr Star, it is unnecessary for me to hear you on that. What I might do is hear what, if anything, Mr Krohn wishes to say in answer to these contentions about the substance of the matter. If we ever get to questions of discretion, then I will hear you further on them.

MR STAR: If the Court pleases.

HIS HONOUR: Yes, thank you. Now, Mr Krohn.

MR KROHN: If your Honour please.

HIS HONOUR: As I say, confining yourself to this question of the substance of the case which you would seek to mount, assume, for the purposes of argument, that you were to surmount all the discretionary hurdles which Mr Star is so very keen to throw in your path.

MR KROHN: I will endeavour to confine myself to that, your Honour. First, I think I must address this, because it adverts to the issue estoppel and similar points. Correct me if you do not want to hear this. Mr Star, in his submissions just then, said that, in essence, the prosecutor is seeking to agitate matters under a different rubric from what went. Your Honour does not require to hear me on that?

HIS HONOUR: Mr Star may well have some force in that point, but let us, for the moment, again put it aside - - -

MR KROHN: I understand. I was not sure which side of the line that fell, your Honour.

HIS HONOUR: Nor am I, Mr Krohn, nor am I. All I am saying is, let us not get into it. We do not have to.

MR KROHN: Very good, if need be, as long as I might have leave to address it later. Your Honour - - -

HIS HONOUR: As you understand, what troubles me most at the moment, and what seems to me to be the insuperable hurdle in your way, is this proposition: there is no want of logic in concluding that the incident in - - -

MR KROHN: April 1995.

HIS HONOUR: - - - April 1995 happened, and happened because the authorities suspected, thought, guessed, that the applicant was a person holding political views which were not favoured, and concluding further that, because suspicion of holding those views was then dispelled, the applicant does not now have a well-founded fear. That seems to me to be a possible reading of what the Tribunal has said. What I need to know from you is: (a) Is that what the Tribunal says? (b) If it is, why is that illogical?

MR KROHN: Illogical, your Honour, because the Tribunal focused particularly on the risk of future detention either in routine round-ups or something that was focused, and that, if either of those events occurred, and it was possible that there was, again, a suspicion against the applicant, then it was necessary for the Tribunal to deal with that possibility before making a conclusion that there was no well-founded fear. The Tribunal focused on those two issues, and suspicion was clearly something that the Tribunal adverted to. At page 15, at about point 5, the Tribunal considering arbitrary detention as the most serious form of harassment faced by Tamils in Colombo, the Tribunal says, third line:

Arbitrary detention is capable of amounting to persecution. However, the evidence shows, in the Tribunal's view, that not all Tamils face a real chance of experiencing serious arbitrary detention that would amount to persecution.

And then:

The criteria establishing a real chance are as follows -

Going down further, the last item:

having a recent connection with the LTTE or grounds on which the authorities might suspect such a connection.

Now, your Honour, the Tribunal has already made a finding of fact that an erroneous suspicion by the authorities did result in treatment which logic really compelled the Tribunal to conclude was at that time an incident, even though brief, of persecution for a Convention reason. The Tribunal has turned its mind, if you like, at a certain remove to the issue of repeat detention either on the grounds of suspicion because somebody has some kind of a profile, or simply just routine round-ups. Now, either way, the Tribunal indeed considered that the event in April 1995 may have been one or the other. In my submission, it is probably inclined to suspicion of him that was dispelled when there was a check.

But the Tribunal, in dealing with that incident, treats it as something that was one thing or the other of those two. The Tribunal has dealt with the claim as being a claim that, "I fear persecution either focused at me, because of an imputed profile, or in the course of routine detention, where I will be treated so badly that it would amount to persecution either on the basis of imputed profile or race." The Tribunal has accepted that it is a serious problem for Tamils. The want of logic lies in having made a finding of fact which, although not unpacked, must be taken to be a finding that there was an incident of persecution for a Convention reason, and that it arose either from mistaken suspicion, which led the authorities to him, or a routine round-up, that lead the authorities to him, but the Tribunal, in later dealing with those two scenarios in the future, has, in my submission, unreasonably failed to deal with exactly the same scenario which the Tribunal accepted had already occurred.

In other words, if there were nothing else than the bare two propositions that your Honour put to me, that the Tribunal accepted an event occurred but later concluded there is no well-founded fear of persecution, it was possible that the Tribunal might have been able, correctly and reasonably, to have come to that conclusion, depending on findings on questions of fact. But it did not do so, and it did not make the necessary findings of fact. It did not advert to the necessary things in order to be able to say, "Well, yes, you were mistakenly taken, either in the course of a routine round-up or because they got their suspicions wrong, and you were knocked about very severely. I have considered whether they might do that kind of thing in that mistaken kind of way again, and I consider that is not likely."

In fact, the Tribunal's silence, when it refers on page 20 to "brief detention followed by early release" - silence on the nature of the detention is, in my submission, a spectacular silence, given what the Tribunal has already accepted occurred to this man. It is not enough for the Tribunal, in the way the Tribunal has approached this case. The Tribunal, as arbiter of fact, could have gone about it in a range of different ways. One way it might have done, but did not, as arbiter of fact, was to say, "Look, I do not believe a word this man says. He is not a person of credit. I simply reject the entire claim." It has not done that.

The Tribunal, having taken as a very significant, in my submission, crucial and central milestone in the fact-finding process, having taken its findings that he was detained and beaten, probably on suspicion, but if not, in the course of a random check, in April 1995, it was not open reasonably for the Tribunal then simply to reach its comfortable conclusion without adverting to whether it was a remote possibility, or a real chance, or probable, that the same kind of error might recur. That is the crucial nature of the unreasonableness.

True it is that the Tribunal deals with some other incidents that were claimed, but in the way that the claim was put before the Tribunal, that here is a man who is afraid of the authorities because he said he had a pro-LTTE profile with the authorities, and he said he was afraid because Tamils were being rounded up all the time, "and this is what happened to me", in that context, what the Tribunal has then gone on to do is not reasonable, and it is palpably not reasonable. The whole decision is predicated on a silence about a central issue, where that silence, given the finding of fact about not just the April 1995 but all of the beatings and detentions - - -

HIS HONOUR: How would you describe that central issue, Mr Krohn? You said that the whole decision is predicated on silence on a central issue - - -

MR KROHN: The central issue, namely, whether the prosecutor, having been detained, beaten and seriously injured on suspicion of anti-government politics, or in the course of a round-up aimed at finding people with those politics, that silence on whether that kind of treatment might recur with a sufficient probability to mean that the applicant had well-founded fear of persecution on that basis. The Tribunal has made a finding which committed it to continue a path of reasoning, and it has not done so. It has played hopscotch with a necessary thing that had to be considered - so necessary, that it is right to describe the Tribunal from that point on page 13 in the decisions - if one regards it as a sequential decision - but perhaps I do not need to say that.

Simply, once that finding of fact is made in those terms, that the beating occurred, there was suspicion, or it was a routine round-up, the Tribunal could not, reasonably, then cheerfully refer later on to, well, brief detention is not a matter of persecution and he does not have a profile with the authorities and the authorities never took any serious interest in him. In my submission, the whole thing is a monumental failure on the part of the Tribunal to grasp what it is that the Tribunal itself accepted occurred, and to consider then whether that might happen again.

The Tribunal, indeed, if you like, your Honour, in my submission, is assuming a certain standard of reasonableness and efficiency and consistency on the part of people when the Tribunal itself has found that on one occasion there were, sort of, loose cannons in the police force, engaging in private spite, and on another occasion, corrupt officials. The Tribunal on its own fact-finding accepts that Sri Lanka is a pretty unsafe, unpredictable, erratic place, and yet it does not deal with that issue, even though it is squarely raised by the Tribunal's own findings of fact. In my submission, because it goes to the central claim, "I fear the authorities if I go back", the unreasonableness - because if the Tribunal had dealt with it properly and carefully and logically, it may have come to a different decision - for that reason, your Honour, this is unreasonableness. First, in my submission, it is unreasonableness of a high degree.

You have here, also, a specialist tribunal which sets out at the very beginning of its decision its understanding of the law, about what is involved in persecution, what is involved in the Convention definition, and it almost, in my submission, beggars belief for a tribunal of that character to say the authorities took no serious interest in him, apart from detaining him and beating him on a few occasions and doing so so seriously on suspicion of LTTE involvement that he had a fractured shoulder and injured pelvis, but they did not do anything to him. No need to worry about that. That was just brief detention, and if it happens again, well, that is just brief detention - a reasonable thing for the authorities to do. Your Honour, I cannot put it clearer than that.

HIS HONOUR: Yes. Thank you.

MR KROHN: If your Honour please, I have endeavoured to confine myself to your Honour's point, but I do have other things if your Honour desires in relation to the discretionary matters.

HIS HONOUR: But if I were against you on this aspect of the matter, Mr Krohn, does it follow that your application fails?

MR KROHN: It does, your Honour. Perhaps, having said that, there is one brief thing that my learned friend adverted to, to which I would also.

HIS HONOUR: Yes.

MR KROHN: That is the issue that it has not been clarified to the extent to which unreasonableness may be urged in support of relief under section 75(v) of the Constitution. Your Honour, in my submission, that in itself is a factor which is in support of the application being granted, that that is an important matter and that is clearly an arguable matter. It is not determined, but it is clearly arguable, and perhaps it is important to be argued.

In my submission, somebody who comes to the Tribunal and says, "Look, this is what happened. I was beaten and seriously injured while they thought that I was LTTE", the Tribunal says, "Well, yes, that happened. That is not serious interest", it suggests further, perhaps, that if that is not serious interest by the authorities, then the Tribunal has such a bizarre and unreasonable notion about what is serious interest that it would, perhaps, be very difficult for an applicant to satisfy this Tribunal that anything amounted to persecution for a Convention reason. That also, is something which, in my submission, is manifestly and grossly unreasonable in this decision. If your Honour please.

HIS HONOUR: Thank you, Mr Krohn.

On 14 September 1998, the Refugee Review Tribunal affirmed the decision of a Delegate of the Minister for Immigration and Multicultural Affairs not to grant the applicant in this Court a protection visa. On 30 October 1998, the applicant applied in the Federal Court of Australia for an order of review under Part 8 of the Migration Act 1958 (Cth) ("the Act"). That application came on for hearing before a single judge of the Federal Court of Australia, Justice Sundberg, in May 2000, and on 16 June 2000, his Honour dismissed the application for review. On 1 August in that year, application was made in this Court for relief under section 75(v) of the Constitution, directed to the Refugee Review Tribunal.

When that application first came on for hearing before me on 18 August 2000, the further hearing of the application was stood over to await the hearing and determination of the proceedings in this Court in the matter of Re Minister for Immigration and Multicultural Affairs Ex parte Epeabaka (2001) 179 ALR 296. Judgment in that matter was given on 3 May 2001, dismissing a claim that the Member of the Refugee Review Tribunal who had determined this applicant's application to the Tribunal, and had also determined Mr Epeabaka's application, had not so acted that his decision would excite, in the mind of a reasonable party or member of the public, an apprehension that it was the product of a partial and prejudiced mind.

That being so, the contentions which the applicant had intended to make in this matter, to broadly similar effect to the contentions made in Epeabaka, are no longer pursued. The matter having now been brought back on for further hearing, the applicant has reformulated his case and seeks to pursue a claim to relief under section 75(v) that is framed differently from the way in which the claim had originally been intended to be pursued. Counsel for the Minister foreshadowed that he would wish to be heard in support of arguments that the course of events which I have described presents reason enough now to refuse the applicant any leave that he may need to reformulate the case in the manner proposed. I have, however, not heard argument on those matters, preferring rather to have counsel present such arguments as they wished to present on the substance of the reformulated case which the applicant seeks to make.

Though expressed in a variety of ways, the essence of the claim which the applicant would now seek to propound is that the decision made by the Refugee Review Tribunal was so unreasonable that no reasonable decision-maker could have arrived at it. It is said that that being so, it is open to argue that relief would be granted under section 75(v), whether for jurisdictional error on the part of the Tribunal, or on another, separate, basis of unreasonableness.

It is plain that the argument which the applicant seeks to mount is one which would present a series of questions which it would be inappropriate to determine at this preliminary stage of the application. At least some of those questions have been adverted to in the reasons for judgment in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 and in the reasons for judgment of Justice Gaudron in Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 554 paragraphs 114 to 116. But these are questions which would arise if, and only if, it is arguable that the decision of the Refugee Review Tribunal was so unreasonable that no reasonable decision-maker could reach it.

It is necessary, therefore, to say something further about the Tribunal's reasoning in this matter. In its reasons for decision the Tribunal said that the basis of the case which the applicant sought to make was that he claimed to fear persecution in Sri Lanka on three bases: first, that he is a Tamil; second, that he is imputed with a political opinion of support for the Liberation Tigers of Tamil Eelam (LTTE); and, third, that the LTTE themselves may harm him for having a political opinion adverse to them if he does not co-operate with them.

The Tribunal described the claims which the applicant made as including three events that occurred in 1993 and 1995. In its reasons the Tribunal said:

In late 1993, an LTTE youth from Jaffna recognized the applicant at his workplace. After that, LTTE youths visited the applicant regularly, asking for assistance. They were generally given some money and sent away. The applicant refused to give them any further assistance such as with accommodation.

Nevertheless, the applicant came under suspicion, and in April 1995 the security forces raided his home and took him into custody. He was detained for a day and badly beaten, sustaining a fractured shoulder and an injury to his pelvis. He did not reveal any information about the LTTE, and after the police confirmed that he worked at the bank -

I interpolate a bank in Colombo -

he was released. They returned to the home one night in August 1995 and locked the applicant and his father in the kitchen for some time while they searched the house and stole some money.

The reasons of the Tribunal reveal that the Tribunal accepted the applicant's evidence that these events had occurred as he described them. So much follows from the Tribunal's finding that it accepted "the other parts of his case" that the Tribunal had not mentioned by way of exception and the further finding of the Tribunal that:

The incident of April 1995 may indicate that there was initially some suspicion of him (though it may also have been just part of a random check on Tamils), but evidently any suspicion was quickly dispelled after routine checks were made at the bank at which the applicant worked. The incident of August 1995 seems to have been a case of corrupt police officers taking advantage of any opportunity, not a case of attention directed at the applicant for reasons of imputed political opinion.

Nonetheless, the Tribunal concluded that:

the applicant does not have an imputed pro-LTTE profile in Sri Lanka, and therefore does not face a real chance of persecution there on this ground.

Although the steps which I have outlined appear to me to be the essential steps taken by the Tribunal in dealing with the applicant's case that he is imputed with a political opinion of support for the LTTE, reference should also be made to some statements the Tribunal made under the heading "Prospect of persecution on the basis of ethnicity". Reference should be made to this part of the reasons because it was upon some statements made in this connection that counsel for the applicant relied in support of his contention that the Tribunal's decision was unreasonable.

The Tribunal said that the most serious form of harassment faced by Tamils in Colombo is arbitrary detention. It went on to say that arbitrary detention "is capable of amounting to persecution". But having said that, the Tribunal went further and said that in its view the evidence showed that not all Tamils faced a real chance of experiencing serious arbitrary detention which would amount to persecution. The Tribunal described the criteria which, in its view, established a real chance of experiencing serious arbitrary detention and later, applying those criteria to the applicant, concluded that he fell outside the group that the Tribunal had identified.

Exactly what is encompassed within the contention that the decision of a decision-maker is so unreasonable that a court should conclude that no reasonable decision-maker could reach it may be open to question. At least some of those questions were considered, as I have earlier pointed out, in Eshetu. It may be that the contention encompasses, or perhaps even is limited to, a contention that the decision and the reasoning proffered in support it is illogical. It may be, however, that the proposition goes beyond want of logic, though exactly how far may be a matter for dispute.

In the present case it is important to identify the chief steps taken by the Tribunal in reaching the conclusion which it did that the applicant does not have "an imputed pro-LTTE profile in Sri Lanka". Those steps were, first, to accept that in April 1995 the applicant had been detained by authorities and beaten to the point where he received serious injury. Nonetheless, the applicant was released from detention, the authorities then being satisfied that the suspicions previously harboured by them that he was a supporter of the LTTE were ill-founded.

The third step taken by the Tribunal is that the suspicion having been dispelled on this occasion, neither this incident, nor the various other matters to which the applicant had pointed, revealed that there was a real chance of his being persecuted on the ground of his being suspected of supporting the LTTE.

Counsel for the applicant pointed to what the Tribunal had said about the prospect of persons of Tamil ethnicity being detained in Sri Lanka and said, in effect, that the Tribunal's decision being silent on whether what had happened to this applicant in April 1995 might occur again were he to be detained in the fashion predicted by the Tribunal, its decision was manifestly unreasonable. It is, however, important to give due account, in my view, to the Tribunal's consideration of the probabilities of the applicant being detained on account of Tamil ethnicity in considering whether, as the applicant now sought to contend, there was an unbridgeable gap in its reasons.

It is trite to say that the reasons of a body like the Refugee Review Tribunal are not to be scrutinised with an undue eye to detection of error, but rather with the intent of reading them as a whole and a desire to obtain a true understanding of the meaning intended to be conveyed by them. Taken as a whole, the reasons of the Tribunal in this case are not such as, in my opinion, to be capable of being classified as so unreasonable that no reasonable decision-maker could reach them. I am, of course, conscious of the fact that on this branch of the applicant's argument all that must be shown is an arguable case in support of the contention which he seeks to maintain, but, in my view, the contention of unreasonableness is not arguable in this matter.

That being so, the application for order nisi should be refused. It is unnecessary to consider whether, as the Minister would have sought to contend, there were other discretionary reasons to refuse the relief which it is sought. In my opinion, the case which the applicant now seeks to propound is not arguable. For that reason, the application is dismissed. Yes, Mr Star.

MR STAR: Your Honour, I make an application for costs, including reserve costs, in relation to the application for the order nisi.

HIS HONOUR: Yes. What do you say, Mr Krohn? Can you resist that?

MR KROHN: All that I say in response, your Honour, is that this application has been brought, and has had to be brought, in this Court subsequent to proceedings in the Federal Court, because of the division or limitation on jurisdiction in the Federal Court. The major ground that was sought to be advanced when the application was filed was the ground of apprehension of bias. The Migration Act prevented that from being raised in the Federal Court proceedings. Similarly, the ground of unreasonableness was not available to the applicant there. All that I submit therefore is that, by operation of the Act, as imposed on the applicant, it has been necessary for him, in order to raise questions which one might expect could be raised in one court, to pursue proceedings in two jurisdictions, and to the extent that that weighs against an order for costs, I urge that. If your Honour pardon me for a second.

HIS HONOUR: Yes.

MR KROHN: I have nothing else to say as to costs, your Honour.

HIS HONOUR: Thank you, Mr Krohn. In my opinion, costs should follow the event. The application will be dismissed with costs, and I will certify for the attendance of counsel. Lest there be any doubt, the order for costs includes reserve costs.

MR KROHN: May it please the Court.

HIS HONOUR: Yes. I will adjourn until 2.15.

AT 11.12 AM THE MATTER WAS CONCLUDED