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MIGRATION - judicial review - protection visa - expert medical and psychological evidence - whether hearsay - whether taken into account - scope of review under s 476(1)(b), (c) or (e) of the Migration Act 1958 (Cth) - meaning of jurisdictional error

Subramaniam v Minister for Immigration & Multicultural Affairs [2002] FCAFC

Subramaniam v Minister for Immigration & Multicultural Affairs [2002] FCAFC 255 (27 August 2002)
Last Updated: 4 September 2002


FEDERAL COURT OF AUSTRALIA
Subramaniam v Minister for Immigration & Multicultural Affairs

[2002] FCAFC 255

MIGRATION - judicial review - protection visa - expert medical and psychological evidence - whether hearsay - whether taken into account - scope of review under s 476(1)(b), (c) or (e) of the Migration Act 1958 (Cth) - meaning of jurisdictional error

Migration Act 1958 (Cth) s 476(1)(b), 476(1)(c), 476(1)(e)

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 discussed

Craig v South Australia (1995) 184 CLR 163 discussed

SCAV of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 182 referred to

RAHIETHAN MARKANDAN SUBRAMANIAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 772 OF 2001

DRUMMOND, COOPER AND FINKELSTEIN JJ

27 AUGUST 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V 772 OF 2001





ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA


BETWEEN:
RAHIETHAN MARKANDAN SUBRAMANIAM

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT




JUDGES:
DRUMMOND, COOPER AND FINKELSTEIN JJ


DATE OF ORDER:
27 AUGUST 2002


WHERE MADE:
MELBOURNE




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal, including any reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V 772 OF 2001





ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA


BETWEEN:
RAHIETHAN MARKANDAN SUBRAMANIAM

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT




JUDGES:
DRUMMOND, COOPER AND FINKELSTEIN JJ


DATE:
27 AUGUST 2002


PLACE:
MELBOURNE





REASONS FOR JUDGMENT
DRUMMOND J:

1 This is an appeal from a decision of a judge of the Court refusing the appellant's application for review of a decision of the Refugee Review Tribunal ("the Tribunal") of 20 December 2000. The Tribunal affirmed a decision of a delegate of the respondent to refuse to grant him a protection visa.

2 The issues raised by the appellant for determination in this appeal are, firstly, whether the learned primary judge erred in not finding that the Tribunal's decision was flawed with reviewable error because of the Tribunal's failure to recognise and to deal with certain psychological and medical evidence before it as expert evidence rather than as mere hearsay and, secondly, whether the learned primary judge erred in failing to find reviewable error because of the Tribunal's failure to take into account relevant material, viz, that same psychological and medical evidence. It was said that these failures by the Tribunal amounted to reviewable error within s 476(1)(b), (c) or (e) the Migration Act 1958 (Cth). The appellant relied, in relation to both these issues, on what was said in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [82].

3 Central to the appeal is, firstly, a proper understanding of this statement in Yusuf and, secondly, the appellant's contention that the learned primary judge erred in failing to find that the Tribunal had fallen into reviewable error because of its failure to recognise that the expert opinion evidence referred to went beyond mere hearsay reports of the appellant's personal history and was probative of his claim that he had suffered serious ill-treatment by the authorities. His claim to a protection visa was based on this ill-treatment: he contended it amounted to Convention related persecution.

YUSUF'S CASE

4 In Yusuf, after holding that a breach by the Tribunal of its duty under s 430 the Migration Act could not constitute error within s 476(1)(a), McHugh, Gummow and Hayne JJ, with the agreement of Gleeson CJ, said: "That is not to say that the Federal Court has no jurisdiction to deal with cases in which it is alleged that the tribunal failed to make some relevant finding of fact". They then pointed out at [78] to [80] that s 476(3) and (4) did not limit the jurisdiction of this Court under s 476(1) to review Tribunal decisions as extensively as had previously been believed. Particular reference was made by their Honours to the true scope of the grounds of review in s 476(1)(b), (c) and (e). In the important passage at [82], they said:

"It is necessary, however, to understand what is meant by `jurisdictional error' under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the tribunal)
`... falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'

`Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law." (emphasis added)

5 Their Honours went on:

"[83] ... there is no reason to give either para (b) or para (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it `exceeds its authority or powers'. If that is so, the person who purported to make the decision `did not have jurisdiction' to make the decision he or she made, and the decision `was not authorised' by the Act.
[84] Moreover, in such a case, the decision may well, within the meaning of para (e) of s 476(1), involve an error of law ... No doubt it must be recognised that the ground stated in para (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para (e) deals. That having been said, the addition of the qualification to para (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out.

[85] Paragraphs (b), (c) and (e) would thus each be engaged in such a case and the Federal Court would have jurisdiction under Pt 8 of the Act to review the tribunal's decision." (emphasis added)

6 It is apparent from the passage in [82] that their Honours considered that, in some circumstances, errors by the Tribunal in finding facts may reveal jurisdictional, ie, reviewable, error. But their Honours cannot here be understood as saying that s 476(1)(b), (c) and (e) the Migration Act, in the form in which it stood prior to the 2001 amendments, conferred jurisdiction on the Court to correct mere errors of fact. In discussing the Tribunal's duty under s 430 to make findings of fact, they said, at [74]:

"What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts."
7 The latter comments are of general application to the Court's function of judicial review of decisions under the Migration Act. Moreover, in discussing the proper interpretation of s 476(1)(e) in [84], their Honours expressly emphasised "that factual error by the tribunal will not found review" and that "making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para (e) deals". The passage in Craig v South Australia (1995) 184 CLR 163 at 179 quoted in Yusuf at [82] expressly refers to "an erroneous finding" or "to reach[ing] a mistaken conclusion" being "at least in some circumstances" relevant to whether there is jurisdictional error. But that passage does not lend any support to the notion that in all circumstances, an erroneous factual finding or the reaching of a mistaken factual conclusion can, without anything more, amount to jurisdictional error of the kind with which s 476(1)(b), (c) and (e) are concerned. The sentence in Yusuf at [82] that I have emphasised must be read in the context of a dictum not intended to suggest that jurisdictional error of the kind reviewable under s 476(1)(b), (c) and (e) can be constituted by a mere error of the Tribunal in finding facts.

8 The passage from Craig quoted in Yusuf at [82] is prefaced by these comments in the judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ, at 179:

&q;
uot;At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd:
`Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.'

The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law ...."

9 As appears from the reference Yusuf at [82] to what was said in Craig, their Honours in Yusuf regarded the Refugee Review Tribunal as a tribunal of the kind the subject of the dictum in Craig, ie, as a tribunal lacking authority to make an order or decision "otherwise than in accordance with the law".

10 I understand their Honours in Yusuf at [82] to hold that, if the Tribunal does make an error of law and if that error affects the Tribunal's exercise of its power, eg, affects its decision to grant or refuse a protection visa, then that error of law will constitute jurisdictional error and provide a ground for review of the Tribunal decision under either s 476(1)(b), (c) or (e), because the Tribunal is not empowered to make a decision otherwise than in accordance with law. Their Honours were careful to indicate that not every error of law will have that consequence; they explained how to identify the errors of law that will. If the Tribunal makes an error of law and if that error causes it to ignore relevant material or to rely on irrelevant material or "at least in some circumstances" to make an erroneous finding of fact and if that in turn affects the Tribunal's exercise of power, then and only then will there be jurisdictional, ie, reviewable, error because the decision, so flawed, will have been made otherwise than in accordance with the relevant law which the Tribunal must apply.

11 That an error in fact finding is only relevant to the existence of reviewable error within s 476(1)(b), (c) or (e) if it results from an error of law and thus can lead to an ultimate decision that is not made in accordance with law and so beyond jurisdiction is stressed in Yusuf at [83] to [85]. In the passage I have emphasised at [84], their Honours stress that for there to be reviewable error within s 476(1)(e), as with s 476(1)(b) and (c), there must be an error of law that leads to an ultimate decision that is not made in accordance with law, in the course of acknowledging that such an error of law may be revealed by errors of fact finding, including ignoring relevant material. But such errors in finding the facts do not show reviewable error unless they can be seen to reveal some error of law such as a failure to correctly understand the law to be applied in the particular case.

12 The proper application of s 476(1)(b), (c) and (e), as explained in Yusuf at [82] to [85] can be illustrated in this way: if the Tribunal correctly identifies the legal principles to be applied in determining whether a protection visa applicant has a well-founded fear of Convention persecution, but, eg, fails to appreciate that certain evidence is probative of the existence in the applicant of such a well-founded fear, it will have ignored relevant material, but that will generally be a mere error of fact. In such a case, the Tribunal will not have made any error of law that has caused it to disregard relevant material. So its ultimate decision not to grant the visa would not be beyond its jurisdiction, limited as it is to deciding in accordance with law, though the Tribunal's decision would be flawed with non-reviewable error of fact. If, however, the Tribunal were to misinterpret the expression "a well-founded fear of being persecuted" in the Convention and if, in consequence of that error of law, it were to ignore material probative of the applicant's claim to fearing persecution and if it were to go on and refuse the visa, the exercise by the Tribunal of its power with respect to protection visas would have miscarried. Its decision would be beyond jurisdiction and so flawed with reviewable error within s 476(1)(b), (c) and (e) since its only authority is to make a decision in accordance with the law. But whether or not the Tribunal states in its reasons what appears to be the correct interpretation of the phrase in the Convention, material ignored by it may be so strongly or clearly probative of the existence of a well founded fear of persecution that it should be inferred that the Tribunal in truth misunderstood the true meaning of the Convention phrase. In that case too, the decision will be one that is not made in accordance with the relevant law and will thus be beyond jurisdiction. However, just to ignore material logically probative of a person's claim of having such a fear will not necessarily justify an inference that the Tribunal misunderstood the true meaning of the Convention phrase. If the material ignored is but a piece of information in the nature of circumstantial evidence that tends to make the person's account of having suffered persecution more believable, that is not likely to involve jurisdictional error: to ignore evidence of that character will not ordinarily be explicable only on the basis that the Tribunal misunderstood the true meaning of the phrase in the Convention. To ignore evidence of that character will not therefore justify the conclusion that the Tribunal made its decision otherwise than by applying the true meaning of the Convention phrase.

13 This reading of Yusuf is, I think, consistent with the decision of the Full Court in SCAV of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 182 (Wilcox, Branson and Marshall JJ). There, after referring to the statement in Yusuf at [82], their Honours said of it that before there could be a reviewable error, it had to occur "in a way that affects the exercise of power" and that that required there to be an error which resulted in "the decision ... not [being] one reached in accordance with law". Their Honours accordingly rejected a claim that the Tribunal's decision was flawed with reviewable error because of errors in its factual assessment of the appellant's credibility. In the absence of error on the part of the Tribunal in its understanding of the legal principles to be applied in determining a claim for a protection visa (and none was identified in that case), any errors made by the Tribunal in assessing the applicant's credibility could only be mere errors of fact not capable of review under s 476.

THE APPELLANT'S CASE FOR THE VISA AND THE TRIBUNAL'S REJECTION OF THAT CASE

14 The Tribunal accepted that the appellant was a national of Sri Lanka born in the Jaffna peninsular in a village that was a centre of the Liberation Tigers of Tamil Eelam ("LTTE") activity. It accepted that one of his brothers was detained by the authorities in 1984 and that that brother and the appellant's father were massacred, with others, in 1989 by the Indian Peace-Keeping Force ("IPKF"), in an act of revenge for the killings of some Indian soldiers. The Tribunal also accepted that the appellant fled to India, where he lived as a refugee until 1992, and that he lived in Colombo from then until July 1997, when he arrived in Australia. The appellant's claim to a protection visa was based on his having suffered ill-treatment at the hands of the authorities while living in Colombo: the IPKF had long withdrawn from Sri Lanka and the appellant did not suggest he would have anything to fear at its hands if he were to return to his homeland. The Tribunal, however, rejected his claims that he was persecuted by the authorities in Colombo. The Tribunal gave detailed reasons for rejecting these claims. It concluded:

"In all of the circumstances, the Tribunal is satisfied the Applicant has contrived his story of being harassed by the authorities when he was in Colombo, although it accepts that his family were the victims of the IPKF rampage in 1989, as he described. It does not accept he is suspected of assisting or belonging to the LTTE or that he can provide any information about it, notwithstanding he was born in the same village as its leader. He left that place some ten years ago. The Tribunal concludes that the Applicant does not face a real chance of persecution because he or family members are suspected of having some links with the LTTE or information about that group."
THE EXPERT EVIDENCE RELIED ON BY THE APPELLANT

15 On the hearing of the appeal, the appellant's argument was directed to how the Tribunal dealt with the reports of two psychologists, Ms Thomas and Mr Sexton, and a physician, Dr Rotstein. It is sufficient, in order to deal with this argument, to refer in some detail to the report dated 4 December 1998 provided by Sexton, a psychologist employed with the Victorian Foundation for Survivors of Torture Inc. It is the most comprehensive of the three reports and it is this report which was the main focus of the appellant's submissions.

16 Sexton's report contains a lengthy account of the appellant's history from 1984 to 1997. At the end of the first paragraph, Sexton says:

"I have seen Mr. Subramaniam on 10 occasions since [14 August 1998] in order to conduct a thorough psychological assessment and to provide short term psychotherapy to help him manage his debilitating symptoms. During my contact with Mr. Subramaniam he has given a clear and consistent account of himself and his past. I have also found him open and genuine in his interactions with me."
17 Under the heading "Psychological Assessment", Sexton says:

"From the age of 13 Mr. Subramaniam has experienced multiple losses and trauma. In response he has developed strong and adaptive coping mechanisms. The key strategy he employs is to be very active and industrious so that the memories of the past have little room to manifest in his daily life. This avoidance of the past has been greatly facilitated by his strong commitment to study. Study has played an important function in his life. It occupies him so that he does not think about the past and it provides a meaning, purpose and hope for the future. It has become his way of overcoming the tragedy and trauma in his life."
18 He describes the appellant's reaction when his protection visa application was rejected:

"In May 1998 Mr. Subramaniam's refugee application was rejected. This raised the fear of deportation to Sri Lanka and further persecution. This unexpected threat to his safety shattered his normal defenses and re-triggered the psychological trauma.
* He described being overwhelmed by fear and anxiety that he would be forcefully returned to Sri Lanka.

* He experienced intense traumatic nightmares about being tortured and police arresting people. He woke sweating and shaking with fear.

* He could no longer avoid thinking about and remembering his traumatic past particularly the time he was taken to the river to be executed.

* His sleep was severely disturbed. While going to bed early at 9.30 pm he could not sleep until about 3 am. He then slept fitfully until 8 am.

* He became significantly depressed with a corresponding lost his appetite and interest in his daily activities including his study. He also reported feeling tearful, lethargic and having lost hope of ever escaping persecution in Sri Lanka.

These intense emotional and cognitive disturbances had a major impact on his ability to concentrate on his studies, which up until this point had been going well. He was unable to apply himself to preparing for mid-year exams, and consequently, only passed one of two subjects."

19 Sexton concludes:

"From the age of 13, Mr. Subramaniam and his family have been identified as LTTE supporters which has resulted in several life threatening traumas, the tragic loss of his father and brother, and constant police harassment and persecution. These experiences have had a major impact on his life. For the most part he has been resilient, and developed strong and successful coping strategies. In response to the stress and threat of a negative primary decision in his refugee application his psychological defenses were shattered and he experienced a range of symptoms which were consistent with a delayed post-traumatic stress reaction."
20 By "constant police harassment and persecution" Sexton means the ill-treatment the appellant claims he suffered at the hands of the police during his time in Colombo between 1992 and 1997. By "a range of symptoms" said to be consistent with "a delayed post-traumatic stress reaction", Sexton is referring to the five sets of symptoms set out in the extract from his report at [18] above. Those at the third dot point and probably those at the second dot point in this extract involve the recall by the appellant of ill-treatment he says he experienced in Colombo.

21 The symptoms on the basis of which Sexton made his diagnosis of delayed post traumatic stress reaction were all difficulties described to him orally by the appellant: Sexton identified no symptoms of post traumatic stress reaction that were verifiable by him otherwise than by accepting what the appellant told him of his current feelings. He clearly thought that the appellant truthfully reported his current symptoms. He also accepted that the appellant gave him a truthful account of his experiences in Sri Lanka. But, in so far as Sexton gave expert opinion evidence, that did not go beyond opining, firstly, that the appellant is now suffering a delayed post traumatic stress reaction to events he had previously experienced and, secondly, that that condition was consistent with the history he gave of his previous experiences.

22 Sexton did not expressly say that the symptoms suffered by the appellant or the post traumatic stress reaction he diagnosed were consistent with the history given by the appellant. But it can be inferred that this was Sexton's opinion, in view of what he had to say about the appellant's range of symptoms, which included the recent recall of the torture and harassment he claimed he suffered in Colombo, being consistent with a delayed post traumatic stress reaction. In any event, Thomas and Rotstein both expressly linked the appellant's current post traumatic stress condition with the history he gave of his past experiences in Colombo.

23 The Tribunal dealt with the three expert reports in this brief passage in its reasons:

"The psychological reports that have been provided by the Applicant indicate that he suffers from various psychological ailments. Given the atrocities visited on his family in 1989 there is no reason to doubt that he continues to suffer. However, the Tribunal does not accept other aspects of the Applicant's claims, for the reasons set out above, and does not find those claims to be any more believable because they have been repeated to a number of medical or psychological practitioners."
24 In accepting Sexton's diagnosis of post traumatic stress reaction (and the similar opinions of the other two experts), the Tribunal necessarily also accepted that the appellant had truthfully reported to them his current feelings and difficulties with such matters as sleep and appetite, on which reports the diagnosis was based. By accepting the diagnosis, the Tribunal also necessarily accepted that the appellant had at some time in the past suffered a traumatic experience or experiences. It expressly accepted the appellant's account of the loss of his father and brother in the 1989 massacre. But it rejected the appellant's evidence that he subsequently suffered the ill-treatment in Colombo on which his claim to a protection visa was based.

25 The appellant's central contention is that the Tribunal failed to treat the expert opinion evidence that he now suffers from a condition consistent with the history he gave of his experiences in the past as corroborative of the appellant's account of those experiences. He contends that the Tribunal wrongly regarded the psychologists and physician as doing nothing more than repeating the hearsay account of that history given to each by the appellant.

THE PROCEEDINGS AT FIRST INSTANCE AND THE CONTENTIONS ON APPEAL

26 In the proceedings before the learned primary judge, counsel for the appellant first criticised how the Tribunal dealt with the three experts' reports, submitting, according to his Honour's reasons:

"... that the Tribunal's treatment of the psychological evidence revealed an error of law because the Tribunal had failed to perceive that evidence as doing more than recounting a history presented by the applicant and as identifying symptoms which were consistent with, and therefore corroborative of, that history. In particular, Counsel relied on Mr Sexton's reference to `re-activation of trauma-related symptoms resulting from experiences of torture and trauma in Sri Lanka' as `a psychologist stating a psychological fact, something which in his opinion is true, given his observation of the applicant'."
27 As I have noted, a similar submission was made on appeal in support of the first issue that is referred to above. The learned primary judge said of this submission:

"However, I doubt whether the way in which [appellant's counsel] sought to rely on the psychological evidence in this case was as supporting an available inference. It was rather invoked as an expression of expert opinion that the account of past persecutory incidents given to the psychologists and to the Tribunal was likely to be true because of the expert's assessment of the applicant as inherently truthful. Understood in that way, the material was adduced for a corroborative purpose and it was open to the Tribunal to accept it or reject it without committing a legal error in the requisite sense, even if the Tribunal did not fully apprehend or even understand the purpose for which it was proffered."
28 Like Thomas and Rotstein, Sexton considered the appellant to be truthful not only as to his current symptoms, but also in describing his past experiences in Colombo. It is apparent that the Tribunal did not place any weight on the opinions expressed by the experts as to the appellant's truthfulness in relation to what he told them he had experienced in Colombo. According to the rules of evidence, those particular opinions are not properly the subject of expert opinion since they are not opinions that can only be reached by persons with special expertise. But the Tribunal is not bound by the rules of evidence and could have given weight, if it chose, to the experts' assessments of the appellant's veracity with respect to those events. It chose not to place any weight on those particular opinions and no complaint can be made about that. But contrary to what his Honour here said, the appellant's case below, repeated here, was that the Tribunal failed to appreciate that Sexton's diagnosis of post traumatic stress reaction was supportive of the appellant's claims that he had been exposed not just to the events of 1989, but to that and a series of other traumatic events while he lived in Colombo. His Honour did not deal with this argument.

29 Both before his Honour and on appeal, counsel for the appellant also submitted that because the Tribunal failed to appreciate the full probative significance of the reports, the Tribunal had failed to take into account a relevant consideration or relevant material; it was said that amounted to a constructive failure to exercise jurisdiction in the sense discussed by the High Court in Yusuf.

30 A similar submission was made to this Court, as I have already noted. Of this submission, his Honour said, at [32]:

"In the present case the Tribunal did make findings adverse to the applicant about some of his claims to past persecution. The applicant's complaint is not the Tribunal ignored material directed to that issue, but that it failed to regard, as probative of his evidence forming part of that material, the evidence of the psychologists who had accepted his account as true. The Tribunal, in my view, was not obliged to explain its reasons for taking that course, or even to set out its understanding of the way in which the psychological evidence was relied on."
31 The respondent contended that the reports are not truly corroborative of the appellant's story; that the Tribunal did not, in any relevant sense, fail to take the reports into account; and that even if the Tribunal had failed to identify probative material and act upon it, this is matter which goes to the merits of the case and is not reviewable by the Court.

THE RESOLUTION OF THE APPEAL

32 As to the first of the two issues raised by the appellant, his counsel was not correct in submitting that the Tribunal rejected the expert evidence as mere hearsay evidence. It is apparent from the first part of the passage in the Tribunal's concluding comments set out at [23] above that the Tribunal recognised that the opinion evidence as to the appellant's current condition was not mere hearsay; it, in fact, acted on those opinions, in so far as it accepted that the appellant was now suffering from a psychological reaction to post traumatic stress.

33 As to the second issue, it is clear from what I have said about the use made by the Tribunal of the opinion evidence that the Tribunal did not ignore the three expert reports, as was suggested. The Tribunal clearly did not dismiss the reports entirely, in contrast to the other reports from the appellant's general practitioners which it found to have been contrived by the appellant and his family for the purposes of supporting his visa application. Counsel for the appellant acknowledged as much. The appellant's real complaint here is that the Tribunal erred in not recognising that, because the expert opinion evidence was that the appellant's current psychological condition was consistent with the account he gave to the Tribunal of having been persecuted, that opinion evidence was material corroborative of the appellant's account. Accordingly, it was material to which the Tribunal should have had regard but did not consider in deciding whether to accept the evidence of the appellant that he had been persecuted in Colombo.

34 There is substance in the appellant's contention that the Tribunal did not appreciate that the opinion evidence as to consistency of current condition with past history was, of itself, and quite apart from the experts' view of the appellant as having truthfully related to them his experiences in Colombo, corroborative of the appellant's evidence. In refusing to accept that the appellant had experienced ill-treatment by the authorities while living in Colombo, the Tribunal referred to a range of matters in the material before it, including inconsistencies it thought existed in the appellant's evidence and unconvincing material from the appellant's general practitioners. All it said about the expert evidence, in dealing with the reliability of the appellant's account, was that it did not make the appellant's claim any more believable because he had repeated them to the experts. But the "consistency" opinion evidence was not hearsay, as the Tribunal wrongly characterised it; it was, as the Tribunal failed to appreciate, evidence that did tend to make the appellant's claims of persecution more believable. It appears clear enough that, in evaluating the appellant's credibility, the Tribunal was in error in ignoring the opinion evidence as to the consistency of current condition with past history and failed to have regard to it in forming the view it ultimately did about the reliability of the appellant's claims of persecution. As appears from the passage in his reasons set out at [30] above, the learned primary judge correctly identified this argument as having been raised before him, but failed to deal with it.

35 But, in my opinion, the Tribunal's error amounts to nothing more than a non-reviewable error by the Tribunal in finding the facts. There is no suggestion that the Tribunal's factual error in not having regard, in evaluating the reliability of the appellant's account, to Sexton's opinion as to the appellant's current psychological condition and its consistency with past ill-treatment stemmed from or revealed any misunderstanding by the Tribunal of the legal principles to be applied in deciding whether the appellant was entitled to a protection visa. The Tribunal set out those principles at pp 8 to 10 of its reasons. No criticism was made of what the Tribunal there said on appeal or, it would appear, in the proceedings before the learned primary judge. As Yusuf shows, it is only if the Tribunal makes a factual error by, eg, ignoring relevant material or, "in some circumstances", by making an erroneous finding or reaching a mistaken conclusion, which factual error results from the making an error of law as to the legal principles to be applied, that the Tribunal can be said to have made a decision beyond jurisdiction: it is only if a factual error is made in those particular circumstances that the Tribunal's decision will not have been made in accordance with the relevant law with which the Tribunal is bound to comply. The opinion evidence here in issue, if accepted, was incapable, by itself, of proving that the appellant had suffered Convention related persecution. It was but one piece of circumstantial evidence that supported his claim that he had been so persecuted. That it ignored this evidence provides no ground for inferring that the Tribunal must have misunderstood one or other of the legal principles that govern the establishment of refugee status. To do nothing more than fail to appreciate that that particular piece of evidence supports the reliability of the evidence of the claimant that he had suffered persecution can amount to no more than an error of fact that is beyond the scope of review by this Court under s 476(1)(b), (c) or (e) the Migration Act.

36 For these reasons, I would dismiss the appeal.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.




Associate:

Dated: 27 August 2002

IN THE FEDERAL COURT OF AUSTRALIA



VICTORIA DISTRICT REGISTRY
V772 of 2001





On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:
RAHIETHAN MARKANDAN SUBRAMANIAM

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT




JUDGES:
DRUMMOND, COOPER, FINKELSTEIN JJ


DATE:
27 AUGUST 2002


PLACE:
MELBOURNE





REASONS FOR JUDGMENT
COOPER AND FINKELSTEIN JJ

BACKGROUND

37 The relevant background facts which give rise to this appeal are contained in the reasons of Drummond J.

THE ISSUES

38 There are two separate but related issues raised by this appeal. Both concern the use which the appellant contends the Refugee Review Tribunal ("RRT") made, or failed to make, of the medical report by Dr Laila Rotstein, the report of a psychologist, Erna Thomas, and the report of Leo Sexton, another psychologist.

39 The appellant contends that the RRT failed to recognise and to deal with these reports as expert evidence of a psychological and medical nature and treated the material as hearsay, and presumably did not give them proper weight. Such a failure, it was submitted, was a jurisdictional error which was reviewable under s 476(1)(b), (c) and (e) of the Migration Act (1958) (Cth) ("the Act"): Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, 21.

40 The appellant also contends that the RRT failed properly, or at all, to consider, or take into account, relevant material being the psychological and medical reports. Such a failure, it was submitted was a further jurisdictional error which was reviewable under s 476(1)(b), (c) and (e) of the Act.

DISCUSSION AND CONCLUSION

41 The appellant's first contention is based upon the following statement of the RRT :

"The psychological reports that have been provided by the Applicant indicate that he suffers from various psychological ailments. Given the atrocities visited on his family in 1989 there is no reason to doubt that he continues to suffer. However, the Tribunal does not accept other aspects of the Applicant's claims, for the reasons set out above, and does not find those claims to be any more believable because they have been repeated to a number of medical or psychological practitioners."
The appellant submits that this statement demonstrates that the RRT regarded the psychological evidence merely as hearsay evidence. It was submitted that the RRT had no regard to the evidence to determine whether or not there was consistency between the psychological symptoms and the claims of persecution.

42 The statement of the RRT, to which the appellant referred, has to be construed in the context of its reasons as a whole. In those reasons, the RRT records the appellant's case as put to it and says with respect to the reports:

"The Applicant has provided reports from Erna Thomas, psychologist and Dr Laila Rotstein, consulting physician, (dated 21 July and 21 August, respectively). The former states that the Applicant sought counselling on 22 June 1998, after DIMA rejected his application. It does not provide a history of his counselling but concludes he suffers from Post Traumatic Stress Disorder `as a direct result of his earlier experiences in his home country' and that `it is detrimental to [his] psychological welfare to be denied a protection visa ...' The latter states that the author initially met him three days before the report was made. It reiterates the history he related to the author, although it adds that he and his mother went to Colombo before they fled to India and that, after he returned to Colombo `riots recommenced again in 1995 and he was arrested on several occasions and detained for questioning merely because of his birth place ...' The author concludes that she `would like to lend my support to his application based on extremely emotional stress he has and continues to suffer as a result of his past experiences.' Another letter from Dr Traill of Melbourne University seeks an expedited review application.
The Applicant also provided a report from Mr Leo Sexton, psychologist, dated 4 December 1998. The report is based on 10 counselling sessions between August and December 1998. It more or less recounts the history the Applicant provided in his claims. It adds that `he was easily identified as a Tamil as he could not speak Sinhala and his ID card showed his place of birth to be Jaffna'. The report concludes that `from the age of 13 [the Applicant] and his family have been identified as LTTE supporters which has resulted in several life-threatening traumas, the tragic loss of his father and brother, and constant police harassment and persecution. ... For the most part he has been resilient, and developed strong and successful coping strategies. In response to the stress and threat of a negative primary decision in his refugee application his psychological defences were shattered and he experienced symptoms which were consistent with a delayed post-traumatic stress reaction'. It goes on to conclude that Applicant `is now coping well' and recommends further counselling should the trauma be re-triggered."

43 The RRT accepted the evidence of the appellant as to the murder of his father and brother by the Indian Peace Keeping Force ("the IPKF") in 1989. It said:

"The Tribunal accepts that the Applicant's brother was detained in 1984 and that he was killed, along with his father, by members of the IPKF in 1989. He claims that they were killed because they were involved with the LTTE, although the evidence he provided suggests that the IPKF went on a rampage of revenge after some of its members were killed in the village where the Applicant's family lived, and generally attacked males in that village. The eye-witness accounts suggest that may [sic] of the victims were innocent, although that does not exclude the possibility that the IPKF believed they were all associated with the LTTE. The Applicant was 13 years old at that time and was able to escape. He returned to his house with his mother after a week or so, when the IPKF was still in control, and was not harassed during the following year, although it is common knowledge that the LTTE utilizes the service of young teenagers. The Applicant's brother in Colombo was not harassed and was able to leave the country in 1991 to pursue his studies in Australia. The Applicant's mother also reported damage to her properties to the police without encountering harm, although it is apparent that the police were also opposed to the LTTE. The Applicant and his mother were subsequently able to travel to Colombo, make arrangements about his father's pension and then be sent to India to find refuge. The assistance given by Sri Lankan authorities in those efforts does not sit comfortably with a claim that the Applicant's family was associated with the LTTE or suspected of such an association. The circumstances suggest that the Applicant's father and brother were not affiliated with the LTTE but, even if they were, the IPKF, the Sri Lankan security forces and other relevant authorities did not attack other family members for such an affiliation.
Before the Applicant fled to India, the Sri Lankan government had pressured the IPKF to leave in March 1990, in the wake of a violent battle in the north between the LTTE and its allies and militant Sri Lankan groups that supported the IPKF, and an even more violent nationalistic movement in the south (see the Department of Foreign Affairs and Trade (DFAT) publication Refugee Determination Country Profile: Sri Lanka (Canberra, July 1993) at 10 - 12). The Applicant remained in Sri Lanka until November 1990 without encountering any harm at the hands of the IPKF or any of the militant groups that opposed or supported the IPKF or the Sri Lankan authorities. The Tribunal is satisfied that members of his family were killed and property was damaged by the IPKF as a consequence of an ambush of its members. The Applicant was not suspected of involvement in that ambush and the IPKF has long gone from Sri Lanka and no longer poses any threat to the Applicant, notwithstanding that he continues to suffer the effects of the trauma of the attack in 1989."

44 The RRT rejected the appellant's claims that he had been harassed and tortured at the hands of the Sri Lankan authorities between October 1995 and July 1997 when the appellant left Sri Lanka with a student visa to undertake studies at the University of Melbourne. The reasons for the rejection of these claims are set out in some detail in the RRT's reasons, and need not be repeated.

45 Before arriving at the conclusion that the appellant was not "a victim of attack by the Sir Lankan authorities on account of an imputed connection with the LTTE", the RRT "considered the various letters provided by the applicant which are said to corroborate his story". The RRT then dealt with a letter from the appellant's mother, a letter from Dr Ganesan and a letter from Dr Gunnaika. Having considered the alleged corroborative effect of that material, the RRT then dealt with the alleged flight of the appellant's landlord to Canada after the appellant arrived in Australia because the landlord was harassed over the appellant's alleged LTTE connections.

46 It is at this point in the reasons that the paragraph concerning the medical and psychological reports appears. After discussing the reports, the RRT concluded:

"In all of the circumstances, the Tribunal is satisfied the Applicant has contrived his story of being harassed by the authorities when he was in Colombo, although it accepts that his family were the victims of the IPKF rampage in 1989, as he described. ..."
47 When looked at in context it is apparent that, contrary to the contention of the appellant, the RRT had regard to the medical and psychological reports. It accepted the experts' opinions that the appellant "suffers from various psychological ailments". It accepted that the cause of those "psychological ailments" were the death of the appellant's father and brother and the circumstances in which they were killed. To the extent that the experts expressed the opinion that these events caused the appellant to suffer post-traumatic stress, the RRT accepted that opinion. However the implicit opinions of the experts that the symptoms were also consistent with the additional claims to persecution, which we think the tribunal took into account, did not persuade the RRT of the truthfulness of the claimed assertions, because the tribunal was of the view that the evidence was not credible. The RRT said that the mere fact that the claims were repeated to the experts did not make them on that account alone any more credible in the judgment of the RRT.

48 In our view, the RRT considered and accepted the reports in question to the extent that the underlying facts relied upon to found the opinions were proved to the satisfaction of the RRT. As to the balance of the reports, it weighed the opinions expressed by the experts (including, we think, the implicit acceptance of the appellant's account of events) against other evidence which it accepted and formed a judgment that the appellant had contrived his story of harassment by the Sri Lankan authorities.

49 It follows that the appellant has failed to make out the underlying basis upon which he sought to base his argument that the tribunal fell into jurisdictional error for the purposes of s 476(1) of the Act.

50 In the circumstances there is no need to consider the ambit of the concept of jurisdictional error as explained by the High Court of Australia in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. Accordingly, we express no opinion on that subject.

51 The appeal should be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Cooper and Finkelstein.




Associate:

Dated: 27 August 2002

Counsel for the Appellant:
Mr A Krohn






Solicitor for the Appellant:
Gandhi Associates






Counsel for the Respondent:
Mr P R D Gray






Solicitor for the Respondent:
Clayton Utz






Date of Hearing:
27 February 2002






Date of Judgment:
27 August 2002


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