Abeysinghe v Minister for Immigration & Multicultural Affairs

Federal Court of Australia (Full Court)|2002-01-01|Before: Conti JJ

INTRODUCTION 1 On 16 November 2000, the Refugee Review Tribunal affirmed the decision of a delegate of the respondent Minister refusing to grant a protection visa under the Migration Act 1958 (Cth) ("the Act") to the appellant. This is an appeal from a decision of a judge of this Court, given on 29 August 2001, dismissing an application for an order of review of the Tribunal's decision.

factual background 2 The appellant, who is a citizen of Sri Lanka (of Sinhalese race) aged 33, arrived in Australia on 19 March 1995. On 30 June 1997 he lodged an application for a Protection (Class AZ) Visa with the Department of Immigration and Multicultural Affairs. On 2 February 1999 a delegate of the respondent refused to grant that visa and on 26 February 1999 the appellant applied for review of that decision. 3 The appellant's claims were, in summary, as follows: · Between 1992 and 1994 the appellant met many Tamil students while studying to become a computer programmer. They discussed the separatist war. The appellant sympathised with the Tamil cause. He befriended one of those Tamil students and invited him to become a boarder with him and his mother. · One day in October 1994 the appellant's Tamil friend was taken into custody by the security forces after he was stopped at a checkpoint in Colombo. · Two days later the appellant's house was surrounded by security forces at 8.00pm. The security personnel searched the house and all the family's belongings and took away the Tamil lodger's possessions. · The security forces found some pamphlets among the Tamil lodger's possessions which were connected to the Liberation Tigers of Tamil Eelam ("LTTE") guerilla war. · The security personnel began to punch him in the head and used abusive language. They flung his mother across the room and hit her in the face. They then took the appellant away for questioning. · He was taken to the Joint Operations Command Centre in Colombo where he was systematically beaten with a rubber hose and kicked, for about an hour. He was held there for a week, being tortured each day in a most brutal and inhuman manner. His interrogators kept asking him about his connections with the Tamil Separatists, which he denied having. · The appellant's mother finally succeeded in getting him released under certain conditions, and then took him to Galle to recover and receive medical treatment for the beatings. · The appellant's mother decided to change her place of residence at this stage because she was receiving continuous verbal threats from Tamils who lived nearby. The appellant did not come to live again with her in Colombo, but the security forces came in search of him there. · Because of the constant threats he was receiving at this time, the appellant decided to leave Sri Lanka, claiming that if returned to that country his life would be at risk. · The appellant produced a copy of a letter, dated 26 November 1994, said to be from a medical practitioner in Sri Lanka, indicating that she had treated the appellant for two weeks from October 1994 for swellings in the upper part of his body, apparently as the result of an assault. The appellant also produced a letter dated 12 April 1995, said to be on LTTE letterhead, indicating his involvement in the disappearance of an LTTE member, and threatening revenge.

the tribunal's decision 4 The Tribunal reviewed quite an extensive range of independent country information about Sri Lanka in respect of various periods between 1994 and 2000. This information included a description of the constitutional and political situation in Sri Lanka, the likelihood of Sinhalese people being suspected of sympathising with the LTTE, and circumstances generally applying in the context of terrorist activity by that organisation. It also covered the prevalence of corruption and fraudulent documentation in Sri Lanka. 5 Rather than attempt to summarise the Tribunal's findings and reasons, we set them out below in full. We have added numbers to the paragraphs to facilitate references which we make later in these reasons. "FINDINGS AND REASONS 1. The applicant's story is a very simple one, of being associated with someone who was in the LTTE and then being imputed with an LTTE profile himself. 2. I do not accept the applicant's central claim, ie that he had a Tamil friend who lived with him and who was arrested as a terrorist and disappeared. 3. I note that the applicant has presented no independent evidence to indicate that the friend existed, was detained by the authorities, was shown to have some connection with the LTTE or disappeared as a result of his arrest. He has produced no press reports, or reports from human rights groups about this matter. 4. The applicant's personal account of his claims in relation to this matter were not convincing. I did not accept that he would know so little about a person he said he had befriended for six months, and lived with for three months. Further, he was inconsistent about when and how he came to know of his friend's arrest, saying variously that he had heard from class the next day, and that he had heard from another friend the same night. The applicant, from his own submission, was aware of the difficulties young Tamil males from the north and east face in Colombo, and the extent of checking of them which takes place. This profile of security measures and those under suspicion is outlined on pages 9 and 10 of this decision. I therefore find it implausible that applicant (sic) would automatically assume, on learning that night that his friend had been detained on a bus, that his friend was a terrorist and killer, and that he would therefore not do anything to help him. I found his other explanation of why he did not do anything, ie that nobody could do anything, unconvincing in light of country information at pages 7, 9 and 11 that Sri Lanka is a long standing democracy with a functioning independent judiciary and a government committed to prosecuting breaches of the law. 5. I find it implausible that if he believed his friend were an LTTE, he would leave his friend's room in his house untouched until a few days later, when the security forces arrived and searched it and found incriminating pamphlets. 6. Given that I do not accept that the applicant came to the attention of the authorities through his friend, I do not accept that he was detained and tortured by the authorities as he claimed. 7. I found unconvincing even the applicant's description of his actions after his claimed release from detention. I do not accept that the applicant would simply go into hiding, and not make representations to the authorities if he had been tortured in the way he claims. While Sri Lanka is engaged in a civil war, that war is conducted in a confined area. Sri Lanka is also a long established democracy and there is an established and independent judiciary in operation. (See introductory section of the US State Department Report on Human Rights in Sri Lanka for 1999). The applicant by nature of his upper middle class background and his relatives who were qualified lawyers was better able than most to access the legal system, or to make representations to the Minister for Justice or the Prime Minister or President, if he had indeed been tortured as claimed. Yet he did no such thing. I do not accept that people do not do this sort of thing in Sri Lanka. As the table at page 10 and 11 of this decision notes, the government has been at pains to emphasise accountability of the security forces and to emphasise it will not tolerate illegal activities by the security forces. It notes that Tamils, the people on the whole subject to security forces' attention, have the protection of the law against unlawful activities by security forces, as well as access to the government's Human Rights Task Force and the International Committee of the Red Cross, and other human rights organisations. 8. Further, country information as outlined at pages 11 and 12 indicate that it is implausible that the security forces would impute an LTTE profile to a Sinhalese in the circumstances in which the applicant described. 9. Given that I do not accept that a Tamil friend of the applicant's disappeared in the circumstances he described, I do not accept that the Tamil's family or the LTTE subsequently threatened the applicant and his mother in the way that he described. 10. I do not consider that either the letter from the doctor or the letter said to be from the LTTE help his case. The letter from the doctor does not confirm that the applicant was tortured, nor does it indicate the circumstances of how the injuries were sustained. The letter said to be from the LTTE is completely unconvincing. It is written in English, and in a very polite tone. The applicant said there were a number of other such letters. I do not accept that an efficient killing machine such as the LTTE, which from a variety of reports has little regard for the lives of Tamils or anyone else, (see page 12 of this decision) would simply send the applicant a number of polite warnings on this matter. Even if the applicant had relocated to a relatively Sinhalese area of Sri Lanka, I do not accept that the LTTE would have been unable to locate and kill the applicant if they were seeking him, given country information about how ruthlessly they treat traitors. When I consider these matters together with advice from DFAT about the extent of document fraud in Sri Lanka (see page 13) I am not prepared to place any weight on these documents. 11. I note that the applicant claims he had the assistance of an agent to obtain his passport, obtain a visa to Australia and exit the country. Even if I were to accept this, many people use agents for these purposes, simply to speed up or take the hard work out of a relatively specialised area. Agents are not used only to circumvent authorities, and I do not accept that the applicant needed to do so in this case. 12. When I consider all of the information, both individually and cumulatively, I am not satisfied that the applicant has ever been pursued by the authorities for reason of his imputed support of the LTTE, nor that he has been pursued by the LTTE for reason of his real or imputed anti-LTTE views. I therefore find that there is not a real chance that the applicant will be persecuted for either of these reasons, or for any other Convention reason. I therefore find that the applicant's fear of persecution on this or any other Convention ground is not well-founded. CONCLUSION 13. Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa."

THE PROCEEDINGS AT FIRST INSTANCE and on appeal 6 The appellant relied upon three grounds of review at first instance. His Honour gave detailed reasons for rejecting all three grounds. Due to the fact that none of those grounds was relied upon in the appeal, it is not necessary for us to summarise his Honour's reasoning. 7 Initially, the three grounds of review upon which the appellant relied at first instance were, in essence, repeated in his notice of appeal. Three further grounds were added later by amendment. 8 At the hearing of the appeal, the appellant sought to abandon all of those grounds and rely on three new grounds, which really asserted the same point expressed slightly differently. 9 The respondent accepted that any prejudice to him arising from the fact that the new grounds had not been pursued at first instance could be overcome by this Court making an order for costs in his favour, whatever the outcome of the appeal. 10 In those circumstances, and in view of the fact that the proposed new grounds (essentially one ground) were, in our view, closely related to the three grounds of application at first instance, we allowed the appellant to amend his notice of appeal. 11 The only ground relied upon by the appellant in his further amended notice of appeal was, in effect, that the learned primary judge had erred in failing to find that the Tribunal had erred in law, or exceeded or misunderstood its jurisdiction, by requiring the appellant to "convince" it of his claims of past persecution before it would find that his fears were well-founded. 12 Mr R Godwin, counsel for the appellant, submitted that the Tribunal had impermissibly put an onus of proof upon the appellant. To establish this submission, he relied upon the cumulative effect of three matters. The first was the manner in which the Tribunal dealt with the appellant's central claim and the matters which it took into account in assessing that central claim. The central claim was the disappearance of the appellant's Tamil friend. Counsel for the appellant submitted that the Tribunal had failed to follow the guidance given by a Full Court of this Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. Mr Godwin expressly disclaimed any assertion that failure by the Tribunal to follow the guidance of the Full Court in Kopalapillai on its own provided a ground for review in this matter under s 476 of the Act. He said that it was simply one of the three factors which indicated that the Tribunal had impermissibly imposed an onus of proof on the appellant. The second factor was the repeated use by the Tribunal of the word "unconvincing". The third factor was the Tribunal's reliance upon the fact that the appellant had not provided any independent evidence of his Tamil friend's existence or the fact that the friend had been detained or arrested.

our reasoning 13 The Tribunal's use of "convincing" in paragraph numbered 4 of its reasons above and "unconvincing" in that paragraph and also in paragraphs numbered 7 and 10 might appear, on first impression, to be an unhappy choice of words. To some the words might suggest, as the appellant submitted, that the Tribunal was applying too high a standard of proof in relation to past events which the appellant claimed he had experienced. 14 But to be "convinced" relevantly means no more than to be satisfied by argument or evidence [The New Shorter Oxford English Dictionary, at 503] or to be persuaded by argument or proof [The Macquarie Dictionary, revised edition at p 407]. 15 There is some appeal in the appellant's complaint that the Tribunal placed weight on the fact that the disappearance of the Tamil friend was not the subject of any independent evidence. The detention of a young Tamil male in Colombo might, to most reasonable minds, not be expected to be the subject of reports in newspapers and the like. However, that approach does not, in our opinion, disclose reviewable error. 16 In any event, the Tribunal did not rely on that factor alone for its decision not to believe the appellant about his past experiences. There were several other bases, which can be seen in paragraphs numbered 4 to 10 of the reasons set out above, for this credit finding. These included: · The Tribunal's refusal to accept that the appellant would know so little about the Tamil lodger whom he had befriended for six months and lived with for three months. · What the Tribunal considered to be an inconsistency about when and how the appellant came to know of the arrest of the Tamil boarder (the appellant argued that the Tribunal had got its facts wrong on this point, but that does not amount to reviewable error). · The fact that, although the appellant was aware of the difficulties young Tamil males from the north and east face in Colombo and the extent to which they are checked, it would be implausible for the appellant automatically to assume, on learning that his friend had been detained on a bus, that his friend was a terrorist and killer and therefore he (the appellant) would do nothing to help him. · The Tribunal had regard to country information, about the independent judiciary and the administration of justice in Sri Lanka, as a basis for being unconvinced by the appellant's other explanation of why he did not do anything for his friend, i.e. that nobody could do anything. · The implausibility, if the appellant had reached a state of belief that his friend was an LTTE operative, that he would leave his friend's room untouched for the few days before the security forces arrived and carried out their search; and · The Tribunal's refusal to accept that after being released from detention the appellant would simply go into hiding and not complain to the authorities. 17 In our opinion, the Tribunal did not impose an onus of proof upon the appellant in such a way as to amount to an error of law. 18 In written submissions, counsel for the appellant carried out a minute examination of the reasons given by the Tribunal for rejecting his client's claim that he had a Tamil friend who, after living with him for two to three months, had been arrested as a terrorist and disappeared. 19 In our view, those submissions amounted to an attempt to attack the Tribunal's findings on the merits. 20 The appellant also argued that the Tribunal should have informed him if it had any concerns about the adequacy of his answers to questions which it considered to relate to a critical matter going to credit. The authorities show that there is no such requirement on the Tribunal's part - see Abebe v The Commonwealth (1999) 197 CLR 510 at [197] and [295], Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 (per Fox J) and 513 (per Neaves J); Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [50] to [54]; Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 at [95]. A fairly comprehensive review of the authorities can be found in the reasons for judgment of Merkel J in Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 175 ALR 706 at [63] to [73]. 21 We do not think that the primary judge erred in finding that the Tribunal could be seen to have understood the law and to have applied it correctly. 22 A fair reading of the Tribunal's reasons indicates that the Tribunal disbelieved the appellant's claims on various grounds. In our opinion, it was open to the Tribunal on the evidence before it to disbelieve the appellant's claims. Once it disbelieved the appellant's claims relating to his Tamil friend, there was no other basis (and none was advanced either at first instance or on appeal) for supporting his claims to be entitled to protection as a refugee. 23 For the foregoing reasons we would dismiss the appeal with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Respondent: Australian Government Solicitor

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